The defendant was indicted for the murder of Vestal Broussen, found guilty by the Jury of manslaughter, and has been condemned by the District Judge to be imprisoned in the Penitentiary or State Prison at hard labor for the term of two years. On the trial, the District Attorney offered in evidence as a dying declaration, an affidavit of the deceased, in writing, made and signed by him before a magistrate, for the arrest of the defendant. The counsel for the defence objected to the affidavit as inadmissible, and it was rejected by the Court. Afterwards the State, offered the testimony of G. Biemenu, who proved “that he was present when deceased gave his declaration to the magistrate, Mongó; saw the wounds of deceased, and from them he judged he had very little time to live; deceased said before and after giving his declarations that he would die, ‘qu’il allait mourir.’ The appearance of deceased indicated that he was conscious of his approaching dissolution.” Upon this foundation, the District Judge permitted the declarations of the deceased to be given in evidence. To which opinion of the Court admitting the said testimony the defendant took his bill of exceptions. We think the Judge did not err. After the defendant had himself objected to those declarations reduced to writing, in the form of an affidavit, for his arrest, he could not with any propriety turn round and object to evidence being given by parol, as related above, of what the deceased did declare before the magistrate. Depositions of the deceased taken in writing by a magistrate, in the Hospital where he lay, but not in the presence of the prisoner, were offered in evidence, it being objected that those depositions could not be read, as not having been taken pursuant to the Statute, 10 Car. c. 1. (Irish.) Downs, J., ordered the magistrate to be sworn, and he having deposed that the deceased at the time of making those depositions, was impressed with the fear of immediate death, his parol testimony of the facts declared by the deceased was admitted. Roscoe’s Criminal Evidence, p. 33. McNally, 385. The magistrate, perhaps, should have been examined in preference to the witness who was a mere looker-on at the taking of the affidavit of the deceased, but this objection was not made in the Court below.
The defendant then moved for a new trial, and an arrest of judgment, upon the following grounds: Eirst, that the Court had no right to appoint under the circumstances of this case a District Attorney pro tern, to prosecute for the State. The reasons given in the opinion of the District Judge on this point are to our minds perfectly satisfactory, and we think'the 'appointment was well made. Second, that there had been irregularities in summoning the Jury, in the service on him of the list of Jurors, &c., and that the verdict of the Jury was contrary to law and evidence. These alleged defects are all specially set forth in the pleadings aforesaid, and passed upon in the judgment of the District Court. We refer to them merely without copying them in this decision, because they have been all considered and well answered in the opinion of the District Judge, whose reasons for overruling the said motions we adopt as our own.
The judgment of this District Court is therefore affirmed with costs.