## Facts

- Thomas Errington and other defendants were indicted for murder arising from the death of William Lee.
- Lee became intoxicated, entered a greenhouse, and fell asleep.
- Defendants found Lee and, as a “joke,” covered him with straw and placed hot cinders on top of the straw and/or on his body.
- The straw ignited, and Lee suffered severe burns; he died the next day.
- Before trial, Lee had given a sworn examination before two magistrates, but it was taken outside the defendants’ presence.

## Issues

1. Whether a deceased complainant’s prior sworn examination, taken before magistrates outside the defendants’ presence, could be read in evidence at the defendants’ murder trial under the governing statute.
2. Whether conduct described as a reckless “prank” could amount to murder, rather than manslaughter, when it created an obvious and extreme risk of death or serious bodily harm.

## Decision

- The court excluded the deceased’s prior examination from evidence because it was not taken in the defendants’ presence.
- The court treated the statutory change from earlier law as not eliminating the presence requirement where the accused lacked an opportunity to cross-examine.
- On the homicide charge, the court instructed the jury that recklessness may be so extreme as to be “hardly consistent with anything short of design,” supporting a murder verdict depending on the jury’s findings about the defendants’ state of mind.

## Legal Principles

- A deceased witness’s prior examination taken before magistrates is inadmissible at a criminal trial unless taken in the accused’s presence so the accused had an opportunity to cross-examine.
- Statutory revision does not, without clear indication, displace the fairness rationale of confrontation and cross-examination embedded in the earlier rule.
- For homicide, the distinction between murder and manslaughter turns principally on the defendant’s mental state; extreme, plainly life-endangering recklessness may permit the inference of malice sufficient for murder.
- A jury may treat exceptionally dangerous conduct, pursued with reckless disregard for human life, as functionally equivalent to an intent to cause grievous bodily harm or death.

## Conclusion

The court held that a deceased victim’s sworn examination could not be used at trial when taken outside the defendants’ presence, preserving the accused’s opportunity for cross-examination, and it instructed that exceptionally dangerous recklessness may satisfy the mental-state requirement for murder rather than manslaughter.


Errington & Others’ Case, 168 Eng. Rep. 1108 (Newcastle Special Assizes 1838)