Morgan v. The State.

meditated malice, or in the perpetration, or attempt to perpetrate any rape, arson, robbery, or burglary, or by administering poison, or causing the same to be done, kill any human being, such person shall be declared guilty of murder in the first degree, and upon conviction thereof shall suffer death.' The only portion of the section applicable to the case now under consideration is embraced in the following words, to wit: 'If any person of sound mind shall purposely and with premeditated malice, kill any human being, such person shall be deemed guilty of murder in the first degree, and upon conviction thereof shall suffer death.""

The appellant insists that the jury should have been informed that the statute provides, that "any person convicted of treason, or murder in the first degree, may instead of being sentenced to death, in the discretion of the jury, be imprisoned in the state prison during life." 2 G. & H. 437, sec. 4. The record, however, shows that the exceptions. were taken by presenting the bill of exceptions pending the motion for a new trial; and as there is a question made. whether this can be regarded as at the proper time, within the provisions of the statute on the subject in criminal cases, we do not discuss the question, as the case must be reversed for the error in admitting the statements of Petri made on Sunday afternoon.*

Judgment reversed, and cause remanded for a new trial.

GREGORY, J.-I am very clear that the judgment in this case ought to be affirmed.

The facts, in my opinion, make a case of murder in the first degree, and are of a character to justify the infliction of the highest penalty of the law.

*NOTE, by RAY, J.-Since the above opinion was filed, it has been brought to our notice, by the submission of the original record in this case, that the bill of exceptions presented by the transcript does not include all the instructions given by the court below, and that among the omitted instructions was one properly informing the jury as to the punishment authorized by law for murder in the first degree. We make this statement in justice to the learned judge who presided below, although the information reaches us in such form that we cannot officially recognize the fact.

Morgan v. The State.

The defendant entered the house of the deceased and committed a felony, was detected after perpetrating the crime, and to enable him to make his escape, he shot the deceased with a revolver, with which he was armed, inflicting a mortal wound, of which the deceased died in about twenty-nine hours.

I differ with the majority on the application of the rule as to the dying declarations.

The deceased was shot through the body and also in the jaw; in a struggle with the prisoner he had bled freely from his wounds; he had pursued the appellant for about a quarter of a mile, had returned to his house, and was in bed; he sent for a doctor; he said he was in a bad fix, that he thought he should die, that he had given up all hope.

The medical witnesses concurred in saying that the wounds were mortal. It is true, that the attendant physician was not clear in his mind at his first visit that the wounds were mortal, but he became satisfied the same day that they were so. It is very clear to my mind that the deceased, at the time he made the declarations introduced in evidence, was laboring under apprehension of almost immediate death.

In Rex v. Bonner, 6 C. & P. 386 (25 E. C. L. 487), the deceased had met with an accident, which happened about two o'clock on the morning of Sunday, the 11th of August, 1833. The surgeon stated that he attended the deceased on Sunday, the 11th, when he found him with six ribs broken, and other injuries; that he informed the deceased that he could not expect to recover. Beavan (the deceased) replied, that he was aware he must go out of the world unless he was relieved by medicine; that he was better on Monday, but passed a very bad night on Tuesday; and that on Wednesday he was very ill, and said he was satisfied that he must go out of the world. A clergyman also stated, that the deceased told him on Wednesday, that he did not expect to live. A brother and a son-in-law of the deceased also stated, that they were sent for by the deceased and saw

Morgan v. The State.

him on the Wednesday, when he expressed his great anxiety to settle his worldly affairs, as he had not long to live. He died on the following Saturday. It was contended for the prisoner, that the fact that the deceased did on the Sunday express himself in terms which clearly showed that he hoped to recover, and the fact that he did live until the Saturday, made the dying declarations not receivable in evidence.

· PATTESON, J., (who tried the case) said, "I think that I am bound to admit the declarations of the deceased. It is quite clear that he did not expect to survive the accident; and it is evident that he thought on the Wednesday that he might die on that day. It is not necessary to prove expressions of apprehension of immediate danger; and the circumstance that he lived until Saturday did not alter the state of things on the Wednesday."

In the case under consideration, the nature of the wounds, the declarations of the deceased, and the short time he lived, were all matters to be considered in determining the question as to whether he was laboring under the apprehension of "almost immediate death." Under the rulings in all the cases on this subject, if it had been proved to the satisfaction of the judge trying the case that the deceased was, at the time he made the declarations in question, laboring under the apprehension that he would die within the then. next twenty-eight hours, then they would undoubtedly have been proper testimony to go to the jury.

The nature of the injury, the short time the deceased lived, his expressions, that he "did not expect to recover," "that he had given up all hope," satisfy me that the court below committed no error in admitting the evidence. Indeed, I do not see, under the rulings, how the court could have done otherwise.

The rule is a reasonable one, and is as old as the common law; it only applies to cases of homicide. The felon by whose unlawful act the tongue of his victim has been silenced in death has no great right to complain.

Meyer v. Lemcke and Others.

There is no reason why the rule should be so restricted in its application as to make it of little or no practical use. I am of opinion that the instructions of the court to the jury are not properly in the record.

Of course, when I say that the judgment ought to be affirmed, it is in view of the legal presumption that the court properly directed the jury as to the law of the case.

T. J. Forest, W. E. McLean, and Simpson, for appel

lant.

D. E. Williamson, Attorney General, B. W. Hanna, J. P. Baird, D. W. Voorhees, and J. M. Allen, for the State. See note on page 521, POST.

MEYER V. LEMCKE and Others.

CARRIER.-Collections.—Bill of Lading.—A bill of lading recited, that the goods were "to be delivered without delay, &c., at the port of, &c., to, &c., or assigns, he or they paying freight for said goods at the rate of, &c.; charges payable when collected by boat; charges to be collected" a certain sum, being the value of the goods.

Held, that if the carrier delivered the goods without collecting such charges, he was liable therefor to the person who so contracted with him and delivered the goods to him.

APPEAL from the Vanderburgh Circuit Court.

RAY, J.-The appellant brought this action against the appellees, charging, that at their special instance and request he had delivered to said appellees certain goods and chattels and merchandize, described in a bill of lading, which was executed by said appellees and delivered to the appellant; that the goods were of the value of $274.40, and were to be carried by the appellees in and by a certain steamboat from Evansville to, &c., and delivered to, &c., for certain freight and reward to the appellees; that by said bill of lading the appellees agreed to collect the sum of $274.40,

Meyer v. Lemcke and Others.

charges upon said goods, from, &c., upon delivery of said goods, and pay the said sum to the appellant; and although the appellees made said delivery, yet they failed and refused to collect said sum and pay the same to the appellant.

A second paragraph was filed, alleging, that although a reasonable time had elapsed since the delivery, the appellees failed and refused to pay the said sum to the appellant. The material portion of the bill of lading is as follows: "To be delivered without delay, &c., at the Port of Rose Clair, Illinois, to I. N. Watington, or assigns, he or they paying freight for said goods, at the rate of Charges paya

ble when collected by boat." And at the conclusion of the bill of lading: "Charges to be collected, $274.40.”

A demurrer was sustained to each paragraph of the complaint.

The plain and reasonable intent of the language used in the bill of lading is, that the charges are to be collected by the appellees; and as they have, as is charged by the complaint, delivered the goods without collecting the charges, thereby surrendering a security without authority, they are liable for the charges they assumed to collect.

The appellees insist that the appellant does not show by his complaint that the charges are due to him. He does aver the delivery by him of the goods, and the contract was between him and the appellees. To him they must answer the breach.

Judgment reversed, with costs, and the cause remanded,. with direction to overrule the demurrer to each paragraph of the complaint.

C. Denby, for appellant.

A. Iglehart and T. E. Garvin, for appellees.

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