People v. Green — 1 Denio 614

Majority

p. 614

The People vs. Henry G. Green.

Headnote

On the trial of an indictment for the murder of a wife by her husband, the declarations of the deceased made in extremis as to the cause of her death are competent evidence against the prisoner.

So held by the chancellor and judges, their opinions being required by the governor pursuant to the statute.

The prisoner was tried at the Rensselaer oyer and terminer, in July, 1845, before Parker, C. Judge, and others, for the murder of his wife by poisoning with arsenic. On the trial the district attorney, after laying a proper foundation, offered to give in evidence the dying declarations of the deceased as to. the cause of death. The counsel for the prisoner objected, that dying declarations could not be received where they came from the wife against the husband: but the court overruled the objection, and admitted the evidence. The prisoner having* been convicted, the case was reported to the governor, who on the second day of September, during the last vacation, cony suited his legal advisers in such cases. (See 2 R. S. 658 §§ 13, 14.) The Chancellor, the Chief Justice, and Mr. justice Beardsley, (Jewett, J. being absent,) were of opinion that the evidence was properly admitted: that the dying declarations of the wife may be received against the husband, on the same principle that she is allowed to testify against him where the complaint is of violence against her person.^[1]

p. 615

Mr. Justice Jewett, being afterwards consulted by his brethren, declared himself of the same opinion.^[2]

Counsel on the trial, for the people, M I. Townsend, (district attorney,) J. Van Burén, (attorney general.)

For the defendant, R.. Lottridge G. Stow, J. Pierson, and J. A. Spencer.

p. 616

The following General Rules were adopted on the 7th day of November, in this term.

Rule 103.

Criminal cases, and cases in which the people are the plaintiffs in interest, may be moved on behalf of the people out of their order on the calendar, on the morning of any day in the first week of the term; and they may also be moved on the morning of any other day in the term, provided the public prosecutor or the attorney for the plaintiff shall have given a notice of not less than four days of his intention to move on .the particular day.

Rule 104.

When a clerkship as a student at law has already been commenced without complying with the rules of the court by filing a certificate of the commencement of the clerkship, or by procuring and filing an order for- the allowance of classical studies, such certificate verified by the affidavit of the attorney may be filed at any time before the first day of February next; and such order may be made by one of the clerks of this court, at any time before the said first day of February next.

If there shall not be a compliance with this order, or in the case of clerkships hereafter commenced, if the rules of the court shall not be observed, the student will lose an allowance for legal or classical studies, as the case may be.