Under these circumstances, the learned Judge thought it advisable to receive the statements of the deceased in evidence, and the prisoner was found guilty of manslaughter, and sentenced to a term of imprisonment.

The learned Judge requested the opinion of the Judges, and he referred to the following cases on the point :-Bonner's case, 6 Car. & P. 386; Woodcock's case, 1 Leach, 503; John's case, 1 East's P. C. 357; 1 Leach, 504 S. C.; Welbourne's case, 1 Leach, 503 (n.); 1 East's P. C. 358; Christie's case, Car. Sup. C. L. 202; Mosley's case, 1 Moo. C. C. 97; Pike's case, 3 Car. & P. 598; Van Butchell's case, 3 Car. & P. 631; Craven's case, Lewin, C. C. 77; Simpson's case, Lewin, C. C. 78; Mosley's case, id. 79; Smith's case, id. 81.

This case was argued before all the Judges, except Gurney B. and Maule J., in Easter term 1840.

Bere for the prisoner.

There is some little difference in the evidence given by the two witnesses as to what passed, but in both it appears as a fact, that nothing was said by the deceased from which the state of his mind can be collected. It would therefore require very strong evidence to shew that he must have believed himself in a dying state. This species of evidence is an anomaly, and, contrary to our rules of evidence, it deprives a prisoner of one of the great safeguards of truth, namely, the power of crossexamination. The strongest proof is therefore requisite, not merely to [138] shew an apprehension of danger, but a perfect belief in the party's mind of approaching death. It is not enough that the party believes he shall not recover.

R. v. Spilsbury, 7 Car. & P. 190. În R. v. Van Butchell, 3 C. & P. 629, it was held that the impression must be of almost immediate dissolution; a belief that the party will ultimately not recover is not enough. R. v. Welborn, 1 East's P. C. 358; 2 Russel, 683. In R. v. Christie, Car. Crim. Law, p. 232, where the party was told it was just possible he might recover, Abbott C. J. and Park J. held the declaration inadmissible; that it did not appear the deceased thought himself at the point of death, the surgeon's answer being such as to leave a hope. In R. v. Mosley, 1 Moody's C. R. 97, though the deceased did not die till some days after the declaration, yet there was the strongest evidence of the state of mind of the deceased, and that he believed himself, from the time of the injury, in a dying state. But in R. v. Crockett, 4 Car. & P. 544, the declarations were refused, though the surgeon told the deceased there was no chance of her recovery, because the party herself used an expression shewing hope. In R. v. Hayward, 6 C. & P. 160, Tindal C. J. says, 'Any hope of recovery, however slight, existing in the mind of the deceased, would undoubtedly render the declarations inadmissible." The same principle is decided. in R. v. Fagent, 7 C. & P. 238. Here there is nothing at all said by the deceased: does what the surgeons said to him necessarily lead to a conviction in his mind of approaching death? Unless it does, the declarations are not admissible.

There is a further objection in this case; are the apprehensions of death in a child enough to render his declarations admissible? There is novelty in this question. Generally speaking, when a child [139] is produced as a witness, evidence is required to shew him aware of the nature of an oath. Is what he says here (considering the difference in the accounts as to this also, of the two witnesses), enough to have admitted him, supposing him to have been produced to be sworn? There may be an analogy between this and the age at which children are supposed by the law to be capable of committing crime. Blackstone lays down the law, that from seven to fourteen years of age a child is supposed to be incapax, but that the presumption may be rebutted; under seven it cannot.

Alderson B. It certainly is not law that a child under seven cannot be examined as a witness. If he shews sufficient capacity on examination, a Judge would allow him to be sworn.

In R. v. Pike, 3 Car. & P. 599, the declarations of a child were rejected, though made under the impression that she was dying, because there was nothing to shew any idea of a future state in the child's mind.

In R. v. Travers, Strange, 700, a child six years old was refused to be sworn as a witness, as not being of sufficient understanding; and a case is mentioned by Raymond C. J. of a child between six and seven having been refused at the Old Bailey on the same ground.

In R. v. Owen, 4 Car. & P. 237, it was left to the jury to say whether a prisoner

eleven years
of age
knew she was doing wrong when she took the coals with stealing
which she was charged. In this case it is submitted that the two things necessary
to the reception of this evidence are not made out, namely, the belief of approaching
death and full knowledge of the awful consequences of falsehood.

The Judges were unanimously of opinion that the [140] statements were receivable if made under the apprehension and expectation of immediate death, and they all (except Bosanquet J., Patteson J., and Coleridge J.) thought they were so made, and receivable, and the conviction was affirmed.

1840.

REGINA v. JOHN FROST AND ELEVEN OTHERS.

(Under the 7 Ann. c. 21, s. 11, the lists of witnesses and of the jury and the copy of the indictment must be delivered to a prisoner indicted for high treason, together at one and the same time. But where the lists and the copy have all been delivered ten days before the trial, but the list of witnesses at a different time from the rest, and the prisoners plead to the indictment, the witnesses may be examined at the trial. The proper time to object is before pleading, so that the trial may be postponed.)

[S. C. 9 C. & P. 129; 4 St. Tr. N. S. 85; 1 Town. St. Tr. 1. Referred to, R. v. Tyrrell, 1843, 2 L. T. O. S. 175; O'Connell v. R., 1844, 11 Cl. & Fin. 155; R. v. Lacey, etc., 1848, 3 Cox C. C. 517; R. v. Smith O'Brien, 1848, 7 St. Tr. N. S. 1; R. v. Cuffey, 1848, 7 St. Tr. N. S. 467; R. v. Bird, 1851, 2 Den. 94; Mansell v. R., 1857, 8 E. & B. 54; R. v. Bernard, 1858, 8 St. Tr. N. S. 887; Dillon v. O'Brien & Davies, 1887, 61 Cox C. C. 245; R. v. Crippin, [1911] 1 K. B. 149; R. v. Bliss Hill, 1918, 82 J. P. 194.]

The prisoners were indicted before Lord Chief Justice Tindal, Mr. Baron Parke, and Mr. Justice Williams, on a special commission at Monmouth in the year 1839, for high treason, the indictment containing two counts, upon the statute 25 Ed. III., for levying war against the Queen in her realm.

The several prisoners were arraigned on this indictment upon Tuesday the 31st of December 1839, and pleaded thereto Not Guilty; and having declared their intention of severing in their challenges, the Attorney-General, on the part of the Crown, applied to the Court, that John Frost might be first put upon his trial, which application was granted.

The jury were thereupon called, and after challenges made on the part of the prisoner and the Crown, a jury was sworn, and charged with the prisoner upon the said indictment.

Upon the first witness being called, and before he was sworn, the prisoner's counsel objected that neither that witness, nor any other, could be examined, as the list of the witnesses had not been delivered according to the stat. 7 Ann. c. 21, s. 11.

[141] By that section it is enacted, that after the period of time therein mentioned (which has long since expired), "When any person is indicted for high treason, or misprision of treason, a list of the witnesses that shall be produced on the trial for proving the said indictment, and of the jury, mentioning the names, profession, and place of abode of the said witnesses and jurors, be also given at the same time that the copy of the indictment is delivered to the party indicted, and that copies of all indictments for the offences aforesaid, with such lists, shall be delivered to the party indicted ten days before the trial, and in the presence of two or more credible witnesses any law or statute to the contrary notwithstanding."

At the time of passing the statute above referred to, the law which required the delivery of a copy of the indictment, and of the panel of the jurors returned for their trial, stood upon the statute 7 Will. III. c. 3, by the first section whereof it was enacted, "That from and after the 25th of March 1696, all and every person and persons whatsoever, that shall be accused and indicted for high treason, whereby any corruption of blood may or shall be made to any such offender or offenders, or to any the heir or heirs of any such offender or offenders, or for misprision of such treason, shall have a true copy of the whole indictment, but not the names of the witnesses delivered unto them, or any of them, five days at the least before he or they shall be tried for the same, whereby to enable them, or any of them respectively, to advise with counsel thereupon to plead and make their defence, his or their attorney

2

or attornies, agent or agents, or any of them, requiring the same and paying as therein mentioned."

And by sect. 7 the same persons indicted shall have [142] copies of the panel of the jurors who are to try them duly returned by the sheriff, and delivered unto them and every of them so accused and indicted respectively, two days at the least before he or they shall be tried for the same.

The only legislative provision which has taken place since the statute of Will. III., as to the delivery of the jury panels, is the 6 Geo. IV. c. 50, s. 21, by which it is enacted, "That when any person is indicted for high treason or misprision of treason in any Court other than the Court of King's Bench, a list of the Petit Jury, mentioning the names, profession, and place of abode of the jurors, shall be given at the same time that the copy of the indictment is delivered to the party indicted, which shall be ten days before the arraignment, and in the presence of two or more credible witnesses.

And amongst the statutes and parts of statutes repealed by the 72d section of the said last-mentioned Act, is so much of the 7 Ann. c. 21, s. 11, as relates to giving a list of the jury to the party indicted of high treason or misprision of treason.

The bill of indictment was found by the Grand Jury on the 11th of December 1839. On the 12th a copy of the indictment, and of the panel of the jury intended to be returned by the sheriff, was served on each of the prisoners personally, in the presence of two witnesses.

And on the 17th of December, a list of the witnesses intended to be produced on the trial, mentioning their names, professions, and places of abode, was served in the same manner on each of the prisoners.

Upon these facts it was contended on the part of the Crown, first, that the service of the list of witnesses was a good service, under the statute of [143] 7 Ann. c. 21; and, secondly, that at all events the application came too late.

This point was reserved for the consideration of her Majesty's Judges.

1840.

REGINA V. ZEPHANIAH WILLIAMS AND WILLIAM JONES.

[For headnote and annotations, see R. v. Frost, supra, p. 140.]

Before any of the jury were sworn, the counsel of Zephaniah Williams renewed the objection made in the former case, whereupon the Attorney-General called upon him to declare explicitly whether he objected to the prisoner being then tried upon the account of that objection, to which the counsel for the prisoner answered that he did not.

Upon the first witness being called on the trial of the indictment against Zephaniah Williams, the same objection was made; the dates of the service of the copies and lists of witnesses was admitted to be the same, and the same point was reserved; but it being suggested that something had passed with Mr. Maule, the solicitor of the Treasury, which might make a difference in the opinion of the Judges, Mr. Maule was examined, and proved, that upon the finding of the bill of indictment by the Grand Jury, on the 11th of December, the prisoners were called into Court, and informed by the Court that a bill of indictment had been found against them, and that if they wished to have any counsel assigned to them, the Court would make the usual order for that purpose: That upon that occasion the prisoners Frost, Williams, [144] Jones, and some others, expressed their wish that Mr. Owen should be appointed their attorney, whereupon the Court observed that there was no occasion, under the statute, for any order by the Court for that purpose, but only for an order that their attorney should have free access to them at all reasonable times, which order the clerk of the Court was directed to make out.

In the evening of the same day Mr. Owen made an application to Mr. Maule for a copy of the indictment, when he was informed that Mr. Maule could not give a copy of it to any one until he had given it to the prisoners, and that he was then occupied with preparing a list of the witnesses, which would necessarily take some days, but that no unnecessary delay should take place; but upon Mr. Owen pressing very strongly the necessity of the prisoner's having immediate knowledge of the contents of the indictment in order to enable them to prepare for their defences, as the time was short, Mr. Maule informed him that the only mode was, to proceed to examine immediately the copies of the indictment, and the jury list, and to deliver them; and

so soon as the list of witnesses was completed, to deliver that. Mr. Owen thereupon thanked Mr. Maule, and retired. And on the morning of the following day, the 12th of December, the copies of the indictment and of the jury panel were served on the several prisoners in the manner above stated; and on the 17th, which was as early as they could be completed, the copies of the list of witnesses were served in a similar

manner.

The prisoner Williams's counsel objected that these facts made no difference, and that the prisoner was not bound by that which passed with Mr. Owen not in his presence.

[145] As the principal question was reserved for the opinion of the Judges, the Lord Chief Justice and the other learned Judges on the Commission thought that it should be considered also, whether these facts made any difference.

The same point occurred, and was reserved, on the trial of William Jones.

These cases were argued in Hilary term 1840, in the Court of Exchequer, before all the Judges, by Sir F. Pollock for the prisoner Frost, Kelly for Williams, and Sir W. Follett for Jones.(a)

Sir F. Pollock, Kelly, and Sir W. Follett for the prisoners.

Two questions arise in this case :-First, has the statute been complied with: Secondly, if it has not been complied with, has the objection to the non-compliance been taken in proper time. The first question depends on the meaning to be given by fair construction to the statute of Anne, and it is submitted that the necessary construction of that statute is, that the things required to be done be all done at one and the same time. By the sta-[146]-tute 7 Will. III. persons accused of treason are to have a copy of the indictment five days before the trial, on their requiring and paying for it; but by the seventh section of the same Act there is a positive direction to deliver a list of the jury two days before the trial, and free of expense. By 7 Anne, c. 21, s. 11, the provision is compulsory, that a list of the witnesses that shall be produced at the trial for proving the said indictment, and of the jury, mentioning the name, profession, and place of abode of the said witnesses and jurors, be also given at the same time that the copy of the indictment is delivered to the party indicted, and that copies of all indictments for the offences aforesaid, with such lists, shall be delivered to the party indicted ten days before the trial, and in the presence of two or more credible witnesses, any law or statute to the contrary notwithstanding. The stat. 6 Geo. IV. c. 50, s. 21, provides, that a list of jurors and the indictment shall be delivered ten days before the arraignment; but it leaves the list of witnesses as it stood on the statute of Anne, and inasmuch as the term trial, used in the statute of Anne, has been construed to mean arraignment (Foster's Cr. Law, p. 230; Blackstone's Com. vol. iv. p. 27), no alteration is made in this respect, and the question remains, on the statute of Anne, whether the words at the same time," and with such list," do not necessarily imply that the things specified must be done at one and the same time. The plain grammatical construction of Acts of Parliament must prevail, and it is impossible to read this Act without seeing that identity of time is plainly prescribed in the words used. The language in this respect is most emphatic. There are two distinct enactments; one of them, that the lists of the jury and witnesses [147] shall be given at the same identical time that the copy of the indictment is delivered; and the second, that the copy of the indictment, with such lists of witnesses and jurors, shall be delivered ten days before the trial. Now, unless this be so, the sixteen words, at the same time that," &c. must be struck out, and the words" with such list" be also omitted, and the statute be read as only prescribing

66

(a) Some discussion took place as to the order in which counsel should be heard ; nothing was decided as matter of right, but Tindal C. J. and Gurney B. intimated that counsel were but amici curia to the Judges assembled; and on separate replies being claimed by the counsel for Williams and Jones, Lord Denman C. J. said, that each case should be heard separately, one counsel being heard for each prisoner. Accordingly Sir F. Pollock was heard for Frost: the Attorney-General answered, and Sir F. Pollock replied. Kelly and Sir W. Follett were then each heard the Attorney-General answered, and Kelly and Sir W. Follett each replied separately. The facts stated in the second case were not relied on as making any difference in the argument; and as the same grounds were taken by all the counsel for the prisoners, the arguments have been compressed into one statement.

that the lists and copy be delivered ten days before the trial. It will be impossible to state any case in which, even in civil matters, enactments for the benefit of individuals, or classes of individuals, can be so mutilated. It is admitted, that the lists of witnesses and jurors must be delivered in the presence of credible witnesses: now, if identity of time be not essential, there is no provision in the statute that the lists shall be so delivered, that enactment only applying to the copies of indictments in terms; and if with is to be construed as and, there is no requirement at all of the two witnesses to the delivery of the lists. In fact, the construction sought to be put on the other side, namely, that "at the same time that means within the same time," will so alter the whole clause as to make it a totally different enactment, and this too in the case of a statute passed for the express protection of the subject in matters of the highest criminal character. The whole practice, since the statute came into force, has gone upon the construction contended for, namely, that identity of time is prescribed for all the things to be done. The statute did not come into force till 1766, after the decease of the Pretender, and not into actual operation till 1781, at the trial of Lord George Gordon. That case is to be found in Howell's State Trials, vol. xxi. p. 648, and in Douglas, p. 591. The Attorney-General applied for a rule, calling on the sheriff to return the panel of jurymen, in order [148] that the prosecutor might be enabled to deliver such list to the prisoner, according to the provision of the statute of Queen Anne, at the same time with the copy of the indictment. He said, this seemed to be the only method of complying with the meaning of the statute, and the form of the rule is given in the note: it states, “in order that such list may be delivered to the prisoners at the same time that the copy of the indictment is delivered to him." This case was important as shewing the view taken by the Court and Attorney-General on the first occasion of the statute coming into actual operation, that the things must be done simultaneously; the rule was there laid down, and has been acted on ever since.

Tindal C. J. There is no mention of the witnesses in that case.

Because the Attorney-General knew who they were, and had no need of applying to the Court to aid him as to them. If the construction contended for on the other side, that "at the same time" meant within the same period, the rule in Lord George Gordon's case would have been unnecessary; but in order to enable the things to be done at one and the same time, the sheriff was ordered prematurely to deliver the list of the jury, trial being understood, in the construction of the statute, to mean arraignment. The practice since has been uniform and unbroken.

In the trials of 1794, of Hardy and Horne Tooke, in Howell's State Trials, vol. xxiv. p. 223, it is stated, that on Monday, October 18, Mr. White, the solicitor for the Treasury, delivered to the prisoners copies of the indictment, list of the jurors empanelled by the sheriff, and of the crown witnesses; and the same course of proceeding was specifically stated in the case of Crosby, in vol. xxvi. p. 2, which was mentioned only for this purpose, because the Attorney-[149]-General of that day, in addressing the jury, said, "it was required, that at the same time when a copy of the indictment was given to him, a list of the jurors should also be given, as well as a list of the witnesses to be produced against him." That was the observation of the Attorney-General of 1796, who afterwards became Lord Eldon, and who then stated, that the trial of Lord George Gordon was the first application of the statute of Anne to the point. By the course taken there, it was shewn that the list, with a copy of the indictment, was to be delivered, not at the same interval, but at one and the same time; for the Attorney-General, to whom he had just alluded, said, "at the same time" the list of witnesses is to be put into his hands. The same course was taken in M'Lean's case, tried at Quebec in 1797, Howell's State Trials, vol. xxiv. p. 721. In O'Coigley's case, tried in 1798, id. 1191. In Watson's case, 1817, Howell's State Trials, vol. xxxii. p. 1. In Brandreth's case, 1817, id. 755. In Thistlewood's case in 1820, Howell's State Trials, vol. xxxiii. p. 68. In Despard's, 1803, Howell's State Trials, vol. xxviii. p. 345. In all these cases the delivery was simultaneous, and no instance of the contrary being allowed could be cited. It is true no case can be cited in which the point has arisen, and it has been decided to be necessary, because it has always been taken as clear law, and acted on accordingly, and no such deviation has hitherto occurred. Even though no object could be shewn, and no advantage to persons charged in pursuing the forms prescribed, still, if the legislature have, as we contend, in plain terms required the simultaneous delivery, the Act must be