## Facts

- Agnes Margaret Summersby became seriously ill after an alleged illegal abortion.
- A doctor (speaking quietly but within Agnes’s hearing) said she was in great danger and might die at any moment.
- Several hours later, Agnes spoke to her sister Gertrude while Gertrude lay beside her.
- Agnes said, “Oh, Gert, I shall go, but keep this a secret,” and then described how Elizabeth Perry (the defendant) had performed an illegal abortion on her.
- Agnes died later that evening.
- Perry was charged with murder based on Agnes’s death following the alleged operation.
- At trial, the prosecution offered Agnes’s statement to Gertrude as a dying declaration (an exception to the hearsay rule).
- The defence objected that Agnes had not shown a settled expectation of impending death when she spoke, so the statement was inadmissible hearsay.
- The trial judge admitted the statement and the jury convicted Perry; the judge indicated the point warranted appellate review.
- Perry appealed, arguing the conviction rested on inadmissible hearsay because the requirements for a dying declaration were not met.

## Issues

1. Whether Agnes’s statement to her sister was properly admitted as a dying declaration, given the requirement that the declarant speak under a settled, hopeless expectation of death.

## Decision

- The Court of Criminal Appeal held that Agnes’s statement was admissible as a dying declaration.
- The court dismissed Perry’s appeal and upheld the murder conviction.

## Legal Principles

- A dying declaration is admissible in a homicide case if the declarant is unavailable by death, the statement concerns the cause or circumstances of the declarant’s death, and it was made under a settled expectation that death was imminent.
- The declarant’s belief in impending death may be proved by surrounding circumstances, including what medical attendants said in the declarant’s presence and the declarant’s own words.
- The law does not require a fixed verbal formula (such as an explicit statement that recovery is impossible); the court may infer the required state of mind from the whole situation.
- If admitted, a dying declaration is evidence for the fact-finder, which then decides what weight to give it in light of all the evidence.

## Conclusion

Because Agnes heard the doctor say she might die at any moment and then spoke of “go[ing]” before describing Perry’s alleged abortion, the appellate court accepted that Agnes spoke with a settled expectation of death; her statement to Gertrude was therefore admissible as a dying declaration, and Perry’s murder conviction was affirmed.


R. v. Perry, 2 K.B. 697 (1909)