Profumo

This is an appeal from a judgment of conviction of the defendant of murder of the second degree and from an order denying his motion for a new trial.

The first point urged by the appellant is that the court erred in giving to the jury the following instruction upon the subject of dying declarations: “Whether the declaration was in fact made under a sense of impending death is a question of fact which most materially affects the question of its credibility, and the determination of the court thereon is not conclusive upon the jury. They have the right, in considering whether they shall accept the declaration as a correct statement, to determine for themselves whether the declarant was in ex-tremis, and fully convinced of that fact when making the declaration, and are at liberty to disregard it if not satisfied that it was made under a sense of impending death.” The vice which the appellant points out as existing in this instruction is that, while it correctly commits to the jury the final determination as to whether the alleged dying declaration was made while the declarant was in extremis, and was conscious of the fact of his condition, it leaves the jury “at liberty” to regard…