The defendant was tried under an indictment charging him with the murder of his wife in 1903. The jury rendered a verdict of guilty, with a recommendation to mercy, whereupon the Court imposed upon him the sentence of life imprisonment, from which he appealed.
The first exception is as follows:
(1) "His Honor erred, it is respectfully submitted, in ruling competent the alleged dying declaration by the witness, Mary Jordan, it not being made to appear that the declarant was conscious at the time when she is alleged to have made such declaration, and it not being made to appear that she realized death was impending or imminent; especially was this so when it appeared that she did not know her own baby from a hot-water bottle, and that she was in a dazed condition, and the Judge being apparently satisfied with the sufficiency of the showing when it appeared that the declarant did not get up any more after the declaration alleged to have been made by her."
A part of this exception was taken under a misapprehension of the facts, as the testimony tending to show that the wife of the defendant did not know her own baby from a hot-water bottle, and that she was in a dazed condition, related to the condition of the wife, when the witness saw *Page 243 her on Sunday previous to her death. The following testimony appears in the record:
"Q. By Mr. Stansfield: State whether or not she said anything to you at that time about dying. A. Yes, sir; she said she was gone. Mr. Williams: Object. Q. By Mr. Stansfield: she said she was gone? A. Yes, sir. Mr. Williams: We object, upon the ground that a proper foundation has not been laid. The Court: How long did she live? A. She died on Friday, and that was Wednesday. Q. By Mr. Stansfield: Did she ever get up after that? A. No, sir. Mr. Williams: We object. The Court: Go ahead. Witness: She said, `Mother, if my back was all right, I would be all right;' and I said, `What ails your back?' and she said, `Where he hit me across it with a board.' Q. Who was she talking about? A. Talking about Amos Holmes. Q. Aunt Mary, state whether or not if on that occasion she said anything to you about not grieving about her. A. Yes, sir. She said, `Mother, don't let them give me nothing;' and I said, `Why?' and she said, 'If I am accusing him wrong, I hope God will forgive me.' She said, `Don't grieve after me; I am gone.'"
The foregoing testimony tends to show that the wife was conscious at the time she made the declaration, and that she realized that death was imminent. This exception is overruled.
The second and third exceptions are as follows:
(2) "His Honor erred, it is respectfully submitted, in charging the jury, `When a sane, responsible person, not a child or maniac, but whenever a sane person commits an unlawful act, the law says that he does it maliciously' — the error being that every unlawful act is not necessarily malicious, and especially is this applicable where a man is accused of beating his wife; it may be unlawful, but not necessarily malicious; and when all the testimony is in malice must be proved beyond a reasonable doubt, and there is no presumption *Page 244 of law that says, in such a case, that every unlawful act is malicious."
(3) "His Honor erred, it is respectfully submitted, in requiring that manslaughter, in order to be made out, must be feloniously done; whereas, manslaughter is not necessarily feloniously done or committed, in order to justify the reduction of the killing from murder to manslaughter; but manslaughter may be found where there is no felonious intent, and such was especially prejudicial when the Judge said every unlawful act was malicious and that malice justified conviction of murder."
It is only necessary to refer to the entire charge (which will be reported) to show that it cannot be reasonably supposed that the portions thereof mentioned in the exceptions misled the jury. They are, therefore, overruled.
The fourth exception is as follows:
(4) "His Honor erred in overruling the motion for a new trial, when the inference from the testimony was that the witnesses for the State, at the coroner's inquest, placed the beating before the birth of the baby and at the trial after the birth of the baby, the testimony of Mary Jordan, improperly admitted, getting the verdict, in the light of the charge complained of, which was urged to be error of law."
A motion for a new trial upon conflicting testimony is addressed to the discretion of the presiding Judge, and is not the subject of review by this Court, unless it was erroneously exercised, which has not been made to appear in this case.
MR. JUSTICE WATTS. I think there should be a new trial. Exception 2 is: "His Honor erred, it is respectfully submitted, in charging the jury: `When a sane, responsible person, not a child or maniac, but whenever a sane person commits an unlawful act, the law says he does it maliciously' — the error being that every unlawful act is not necessarily malicious, and especially is this applicable *Page 245 where a man is accused of beating his wife; it may be unlawful, but not necessarily malicious; and when all the testimony is in malice must be proved beyond a reasonable doubt, that there is no presumption of law that says, in such a case, that every unlawful act is malicious."
I think this exception should be sustained, and a new trial granted, as it was harmful and prejudicial to the defendant, because the jury might have convicted him of manslaughter. An unlawful act may occur, and it is not necessarily malicious. Thus making a well defined line between murder and manslaughter. The defendant was prejudiced by this, and nowhere in his Honor's charge is this error corrected.
A majority of the Court concurring in this opinion, the judgment of the Circuit Court is reversed, and a new trial granted.
MESSRS. JUSTICES HYDRICK, FRASER and GAGE concur.