§ SIR CHARLES RUSSELL
asked Mr. Attorney General, Whether his attention has been called to the case of a soldier whose throat was so severely cut as to prevent his utterance, and who therefore wrote "Morgan done this," at the same time indicating Morgan; and, if so, whether his attention has been further called to the withdrawal of such writing by the counsel for the prosecution in consequence of a doubt expressed by the presiding judge, and endorsed by the Lord Chief Justice, as to its admissibility in evidence; and, whether, with a view to prevent the possible failure of justice, he will make provision by legal enactment to remove any doubt which may exist as to the admissibility of such evidence?
THE ATTORNEY GENERAL
Sir, in answer to the first Question of my hon. and gallant Friend, I have to state that my attention has been directed to the report in The Times of Friday last of the trial and conviction, on the previous day, at Maidstone, of John Morgan, for the murder of his comrade, a soldier named Joseph Foulkstone. It appears from that report, that, immediately after he had been wounded, Foulkstone rushed from the place where he had been attacked into an adjoining but, and there, being unable, by reason of the wound in his throat, to speak, wrote certain words upon a piece of paper. It does not appear, from the report to which I have referred, what were the words which were so written, though they were probably to the effect stated in the Question. I should add that Morgan was not present when they were written, and that the action of Foulkstone, which my hon. and gallant Friend refers to as "indicating Morgan," occurred, not at the same time, but at a somewhat later period. In answer to the second Question, I have to state that the counsel for the prosecution, having at one period of the trial 16 tendered the writing in evidence, appears to have subsequently abstained from putting it in, in consequence of an intimation by the presiding Judge, after consultation with the Lord Chief Justice, that, in the event of his admitting it, he should consider it his duty to reserve the question of its admissibility for the Court for Crown Cases Reserved; and in my humble opinion the counsel for the prosecution exercised a wise discretion in withdrawing the document, for, had the evidence been admitted and the admission been subsequently held erroneous, the conviction would have been set aside, however cogent the other evidence might have been. To the third Question of my hon. and gallant Friend, whether, with a view to prevent the possible failure of justice, I will make provision by legislative enactment to remove any doubt which may exist as to the admissibility of such evidence, I can only reply in the negative. As the House is aware, the law recognizes the admissibility in evidence, in certain cases, of the declarations, whether verbal or in writing, of a dying man; but it is essential that the person making the declaration should at the time of making it be under the firm conviction that he is dying; and any hope of recovery, however slight, would render the evidence inadmissible; the principle upon which evidence of this kind is admitted being that a person who believes himself to be at the point of death has imposed upon him an obligation to speak the truth equal to that which is created by an oath administered in Court. In Morgan's case, so far as I can judge, the doubt, such as it was, which existed as to the admissibility of the writing, arose from the absence of any direct evidence, though the surrounding circumstances pointed in that direction, that Foulkstone believed himself to be dying, it being clear, as well from experience as from the authority of decided cases, that such belief cannot be inferred from the mere fact that the dying man had received a wound of a nature to render death inevitable, or that his death occurred very shortly after the making of his declaration. I think, Sir, under the circumstances, that any alteration of the law in the direction suggested by my hon. and gallant Friend would have the effect of causing, rather than preventing, a possible failure of justice.