"that time he spoke of dying, and said he would not con“tinue long, a few days would finish him; this he said "about Tuesday that he complained all along he was "sure he would not get better;-that he all along said "he never would get better;—that he never missed say"ing so one day before the latter end."

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This witness also stated, "that the deceased was 68 years of age, and was in a very good state of health considering his years;-that she was a nurse accus"tomed to attend sick people, and very often found them "low spirited, and had known many persons say they "should never get better, who have got better;-that the "deceased talked in that way;—that about the Tuesday "before his death he said he should not continue many

days; that it was before that he told her all about “it ;—that the first night he said he should not get bet"ter, and he continued to say so till the last day."

On this evidence, it was objected for the prisoners, that a sufficient foundation was not laid for receiving evidence of the deceased's declarations, made on the Thursday evening, the 30th of September, respecting the circumstances that took place in the robbing of him that evening, and that caused his death, or made afterwards during illness, and previous to the surgeon's notifying to him his hopeless state as above mentioned. The learned Judge was disposed not to receive such evidence unless he should be pressed to do it, in which case he declared he should reserve the question, as to the propriety of his so doing for the consideration of the Judges.

This evidence being pressed upon the learned Judge, with an intimation that the prosecutor's counsel thought the proof would otherwise be insufficient for the conviction of the prisoners, the learned Judge received evidence of the deceased's declaration respecting the circumstances

above alluded to, made by him after he was on that Thursday evening brought home, and had said that he was robbed and killed, and should not get the better of it; and also at different times afterwards during his illness, and previous to the surgeon's communications to him of his hopeless state, as above mentioned; and upon that and other evidence the prisoners were convicted of the murder.

Upon the conviction taking place, the prisoner's counsel moved in arrest of judgment. It was urged that the indictment was insufficient in stating only that there were several mortal bruises, lacerations, and wounds on several parts of his body, (there stated) of which several mortal bruises, lacerations, and wounds he languished and died; that a considerable degree of certainty was necessary in the statement of the wounds on the face of the indictment, and of the situation, length, &c. of each; that it is necessary to describe the particular parts of the body, on which the wound or wounds is or are alleged to be; that charging a wound to be inflicted on the side, or sides of a man is bad, without more particularity, and non constat whether it is to be taken to be the side or sides of the body, or of the head, or of any, and what limb; that the indictment, according to ancient forms, should have so stated the fact as that you might place your finger on the part of the body where the wound is described to be; that this is still requisite, although a conviction may take place on evidence varying from it, as the particulars ought to be stated accurately according to what the facts are supposed to be, for the previous information of the Court, and party charged, with a view to a due investigation; and in order that it might appear, by such statement of particulars, that a due inquiry had

been made by the grand jury, or coroner's inquest, as to these circumstances, before a party should be put to undergo the pain and peril of a trial, and that the facts ought not to be wantonly or purposely varied from in such statement; 2 Hale P. C. 185, 186, was cited: and it was observed that Lord Hale states the authorities that require these particularities of statement, and considers them as requisite in law, in the very same pages, in which he slso states and admits, that a conviction may take place, though they be varied from in proof.

Upon these objections, the learned Judge respited the judgment until the next assizes, in order to take the opinion of the Judges, as well upon the admissibility of the evidence, as upon the validity of the indictment.

The Judges met twice for the purpose of considering this case; and at the second meeting, in Trinity term, 1825, the majority of the Judges, viz. GASELEE, J., HULLOCK, B., GARROW, B., BURROUGH, J., PARK, J., BAYLEY, J., GRAHAM, B., ALEXANDER, L. C. B., BEST, L. C. J., and ABBOTT, L. C. J., held the conviction right, it appearing, in several old precedents, viz. Rast. Entr. 263, 382, Co. Entr. 355, West. Symb. 117, 151, 153, 154, 155, 235, 260, 261, that the length, depth, and breadth of the wounds were not stated, and also, that Mr. Justice LawRENCE had instructed the clerk of assize of the Oxford circuit to omit these particulars where there were more wounds than one, and that his instructions had been followed. The Judges held, that, although they might have felt great difficulty had the precedents been uniform, yet, as there were precedents against the objection, they might consider whether common sense required a statement of these particulars; and as the statement, if introduced, need not be proved, they thought it unnecessary.

LITTLEDALE, J. and HOLROYD, J. differed from the rest of the Judges, and thought the indictment invalid. (a)

The Judges were unanimously of opinion that the dying declarations of the deceased were properly received in evidence.

(a) Vide Tremaine's Ent. 10. Staundf. 78, b. 79, a. 4 Co. 40, b. 41. 5 Co. 120, 121, b. 122. Cro. Jac. 95. Starkie's Crim. Law, 375. 380. Archb. Crim. Law, 211.