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Mr. John Wharton Clark for appellant. Mr. Charles B. Howry, Assistant Attorney General, for appellees.

Mr. Justice Brewer delivered the opinion of the court:

549] *The principal question turns on the matter of citizenship. Claimant was a citizen at the time of the passage of the act of 1891, but not when the wrongs complained of were committed. Had the court of claims jurisdiction?

That court has no general jurisdiction over claims against the United States. It can take cognizance of only those matters which by the terms of some act of Congress are committed to it. Schillinger v. United States, 155 U. S. 163 [39: 108].

Congress did not by the act of 1891 assume, in behalf of the United States, responsibility for all acts of depredation by Indians, nor grant to the court of claims authority "to inquire into and finally adjudicate" all claims therefor. It carefully specified those which might be considered by that court.

By the 1st clause jurisdiction is given of "claims for property of citizens of the United States taken or destroyed." But claimant has no such claim. It is for property of an alien taken and destroyed. True, he is now a citizen, and was at the time of the passage of the act. But the language is not "claims of citizens for property," which might include his case. The definition is of the character of the claim and not of the status of the claimant; if the property was not, when taken or destroyed, the property of a citizen, a claim therefor was at that time clearly outside the statute; and while the status of the claimant may have changed, the nature of the claim has not. Suppose the property taken or destroyed had at the time belonged to a citizen, and an alien had succeeded by inheritance to the right to recover compensation for its loss or destruction, is it not clear that such alien would have a claim within the very terms of the act for property of a citizen taken and destroyed, and upon what construction of its language could the court have refused to take jurisdiction?

Further, the property must have been taken or destroyed by Indians "in amity with the United States." Clearly that refers to the status of the Indians at the time of the depredation. Any other construction would lead to manifest absurdities. The certainty of this date renders equally certain the date at which citizenship must exist in the owner of the property taken or destroyed.

550] *Much was said in argumentand many anthorities are cited in the briefs in respect to the difference between retrospective and prospective statutes, but we fail to see the pertinency of this discussion. Obviously the act is prospective in its operation, in that it grants to the

The only question for determination in this case is whether the claim presented is within either of the classes of past wrongs which are submitted by the act to the jurisdiction of the court. And, for the reasons given, we are clear that it does not come within the 1st clause defining such jurisdiction.

Is it within the 2d clause? By that, jurisdiction is extended to "cases which have been examined and allowed by the Interior Department, and also to such cases as were authorized to be examined under the act of Congress" of March 3, 1885, and subsequent acts. As the claimant alleges in his petition that his claim was never presented to the Commissioner of Indian Affairs, nor to Congress, nor any agent nor department of the government, it was not a case which had been examined or allowed by the Interior Department, and does not come under the first of the two classes named. We turn, therefore, to the act of March 3, 1885, to see what cases were authorized to be examined under it.

It appropriates $10.000 for the investigation of certain Indian depredation claims, and in describing them it mentions such claims as had been theretofore filed in the Interior Department and approved in whole or in part, and adds, "also such claims as are pending but not yet examined, on behalf of a citizen of the United States on account of depredations committed." In order to come within the second class the claim must be one on behalf of a citizen of the United States, and also one pending but not yet examined. *If it be as- [551 sumed that claimant was, on March 3, 1885, a citizen, as may be inferred from the language of the petition, although not explicitly averred, the question arises whether the different phraseology of that act would include a claim in his favor, although he was not a citizen at the time of the depredation. But passing that question, the claim must be one then "pending but not yet examined," and this language, taken in connection with the words descriptive of the prior class, manifestly refers to such claims as had been presented for examination, and so, in a technical sense of the term, were pending, and does not embrace all cases of depredations, whether claims therefor had been presented or not.

We are aware of the fact that the Interior Department, acting under an opinion of its chief law clerk, of August 23, 1886, has construed the authority given by the 2d clause of this act to reach to all claims existing and not barred, whether at the date of the act on file or not in the Interior Department. We quote from that opinion, approved by the assistant secretary, as follows:

"I am of the opinion, however, that all claims that were not barred March 3, 1885, are included within the claims to be investigated, although filed after the passage of either the

court of claims a jurisdiction that it did not act of 1885 or 1886, because the act of May 29, theretofore possess, and authorizes it in the fu- 1872, and the rules and regulations made in ture to hear and determine certain claims. But pursuance thereof, require the Secretary of the as to the claims thus committed to its consider- Interior to investigate such claims and make but provides for the enforcement and execu- | of taking out his first papers, but we cannot

ation the statute is expressly retrospective. The last proviso in § 2 reads: "And provided further, That no suit or proceeding shall be al lowed under this act for any depredation which shall be committed after the passage thereof."

report thereof to Congress in the same manner as provided for by the act of March 3, 1885. This act and the rules and regulations adopted by the Secretary, as provided for by said act, is not repugnant to any provision of § 2156,

tion of that section. As no statutory bar attaches to any claim for depredations committed since the adoption of the Revised Statutes, such claims may be filed at any time."

act upon any such statement, but must be gov. erned by the averments of the petition.

We see nothing else in the record which re quires comment. The judgment of the court of claims was correct, and it is affirmed.

FRANK CARVER, Plf. in Err.,

0.

We are unable to concur in the views thus expressed. Without stopping to inquire whether U. S. Rev. Stat. § 2156, may or may not be repealed by this act of March 3, 1885, and conceding, for the purposes of this case, that such section remains in full force and effect, we are of the opinion that the act of 552]*March 3, 1885, is special and limited in its scope. It purports to be limited, for it is for Dying declarations-subsequent declarationthe investigation of "certain Indian depreda

tion claims." Not only is it by these words

UNITED STATES.

(See S. C. Reporter's ed. 553-556.)

repetition-objection to testimony.

restricted, but the meagerness of the appro- 1. Declarations of the victim of a homicide as to

priation, $10,000, indicates the narrowness of the investigation intended, and the limited number of claims which were designed to be examined. The claims to be reported are defined. First, those which "have been approved." This necessarily limits, so far as this portion of the section is concerned, the report to those claims presented, considered, and acted upon by the Interior Department. It refers to what has been and not what may be. It de

the facts of the homicide, made under the impression of almost immediate dissolution, are admissible in evidence on a trial for the crime.

2. A subsequent declaration by the same person that her tormer dying declaration was true is not admissible when it does not appear whether she then spoke under the admonition of her approaching end or anticipated recovery.

8. The repetition of a dying declaration cannot itself be admitted as a reiteration of the alleged facts, if made when hope has been regained.

fines and includes, not claims which might 4. Testimony for which a proper foundation has

thereafter be presented and investigated, but those which at the date of the act had been finally passed upon and determined by the Interior Department. There is no possibility of construction which would open this clause to include any claims other than those already considered and determined by the department.

not been laid, and which is not legitimate rebutting testimony, is sufficiently objected to by objecting that no foundation therefor has been laid, without challenging it on the ground that it is not proper in rebuttal.

[No. 721.]

The other clause of the section describes "such Submitted November 20, 1895. Decided Jan

claims as are pending, but not yet examined." That either means such claims as have been already presented and are before the department for consideration, or it includes all unallowed claims then existing and not barred. If the

latter was the thought of Congress in this enactment, there was no need of a division into classes, for the one description of claims existing would include all, both those allowed and those not yet examined and allowed; those filed and those not filed. The obvious intent was not to reach all Indian claims, but to call from the Interior Department a statement of the claims then before the department, and upon such presentation to determine its future action. And the purpose of the 2d clause in the act of March 3, 1891, was to take the cases which on March 3, 1885, were pending in the department and transfer them in bulk to the court of claims.

uary 13, 1896.

NOTE.-For what purposes evidence of intoxication may be given by one accused of crime, see note to Hopt v. Utah, 26: 873.

As to when confessions of accused are evidence

against him, see note to Hopt v. Utah, 28: 262.

Declarations of injured party as to injury; expressions of pain, suffering, etc.-see note to Travelers' Ins. Co. v. Moseley, 19: 437.

Declarations of third persons referred to, evidenco against party, see note to Clerk v. Russell, 1: 660, and Leeds v. Marine Ins. Co. 4: 266. Dying declarations, when admissible in cases of homicide; under sense of impending death; subsequent hope of recovery; by signs or other modes; obtained by solicitation; how restricted; must relate to facts; duty of court; declarations in favor of accused.

Dying declarations are admissible only in cases of homicide, where the death of the deceased is the

It follows, therefore, that this claim, having subject of the charge and the circumstances of the

been filed in the department, does not come within the category of claims provided for in the 2d clause of the act conferring jurisdiction upon the court.

It was further insisted in the argument that 553] the claimant *had taken out his first papers at the time of the depredation, and therefore that when he took out his final papers citi. zenship related back, and he was entitled, for all the benefits of this act, to claim the privileges of citizenship from the date of his first papers. But there is nothing in his petition to show when he took them out, and therefore the contention, if it had any foundation in law, has none in fact. It is true, mention is made in the opinion of the court of claims of the time

death are the subject of such declarations. Reynolds v. State, 68 Ala. 502; Johnson v. State, 50 Ala. 456; Hudson v. State, 3 Cold w. 355: Leiber v. Com. 9 Bush, 13; Wooten v. Wilkins, 39 Ga, 223, 99 Am. Dec. 456; Hill v. State, 41 Ga. 484; State v. Medlicott, 9 Kan. 257; State v. Bohan, 15 Kan. 407; Marshall v. Chicago & G. E. R. Co. 48 Ill. 475, 95 Am. Dec. 561; Barnett v. People, 54 Ill. 325; State v. Harper, 35 Ohio St. 78,35 Am. Rep. 596; Montgomery v. State. 80 Ind. 281, 41 Am. Rep. 815; State v. McCanon, 51 Mo. 160; Wright v. State, 41 Tex. 246; Dixon v. State, 13 Fla. 636; Hackett v. People, 54 Barb. 370; People v. Davis, 56 N. Y. 95; Wilson v. Boerem, 15 Johns. 286; Crookham v. State, 5 W. Va. 510; State v. Shelton, 2 Jones, L. 360, 64 Am. Dec. 587; Brownell v. Pacific R. Co. 47 Mo. 239; Montgomery v. State, 80 Ind. 338, 41 Am. Rep. 815.

Dying declarations are not incompetent because

IN ERROR to the Circuit Court of the United and that he was in the habit of carrying a

States for the Western District of Arkansas | pistol, which he was flourishing at that time. to review a judgment convicting Frank Carver of murder. Reversed, and cause remanded with a direction for a new trial.

Statement by Mr. Chief Justice Fuller:

Frank Carver was convicted of the murder of Anna Maledon in the circuit court of the 554] United States for the western district of Arkansas, and sentenced to be hanged, whereupon he sued out this writ of error.

The fatal wound was inflicted by the dis charge of a pistol on the night of March 25, 1895, at Muscogee, Creek Nation, in the Indian country, but the death occurred at Fort Smith, Arkansas, May 19, 1895.

In addition to other evidence, there was testimony tending to show that Carver and the deceased were attached to each other, that he was very drunk on the night of the homicide,

of the constitutional requirement that the accused shall be confronted with witnesses against him. State v. Dickinson, 41 Wis. 299; State v. Nash, 7 lowa, 347; Robbins v. State, 8 Ohio St. 131; People v. Glenn, 10 Cal. 32; Brown v. Com. 73 Pa. 321, 13 Am. Rep. 740; Com. v. Carey, 12 Cush. 246; Woodsides v. State, 2 How. (Miss.) 655; Campbell v. State, 11 Ga. 353; Burrell v. State, 18 Tex. 713; Walston v. Com. 16 B. Mon. 15; State v. Tilghman, 11 Ired. L. 513; State v. Vansant, 80 Mo.67; People v. Green, 1 Demo, 614.

Dying declarations, though made with a full consciousness of approaching death, are admissible in evidence only where the death of the deceased is the subject of the charge, and the circumstances of the death are the subject of the dying declarations. Rex v. Mead, 2 Barn. & C. 605, 4 Dowl. & R. 120; Rex v. Hutchinson, 2 Barn. & C. 608, note; Rex v. Lloyd, 4 Car. & P. 233.

In one case where A and B were both poisoned by the same means, upon an indictment against the prisoner for the murder of A, evidence was allowed to be given of the dying declarations of B, the ground alleged being "that it was all one transaction." Rex v. Baker, 2 Mood. & R. 53; State v. Terrell, 12 Rich. L. 321; State v. Wilson, 23 La. Ann. 558.

Dying declarations are admissible in prosecutions for manslaughter. State v. Hannah, 10 La. Ann.

131.

They must be made, not merely in articulo mortis, but under the sense of impending death, without expectation or hope of recovery. People v. Chin Mook Sow, 51 Cal. 597; People v. Ah Dat, 49 Cal. 652; People v. Vernon, 35 Cal. 49, 95 Am. Dec. 49; People v. Lee, 17 Cal. 79; State v. Garrand, 5 Or. 216; Dunn v. State, 2 Ark. 229, 35 Am. Dec. 54; Hays v. State, 40 Md. 633; Hill v. Com. 2 Gratt, 594; State v. Blackburn, 80 N. C. 474; Dixon v. State, 13 Fla. 636; State v. Patterson, 45 Vt. 308, 12 Am. Rep. 200; State v. Cantieny, 34 Minn. 1: State v. Cameron, 2 Chand. (Wis.) 172; Fitzgerald v. State, 11 Neb. 577; Rakes v. People, 2 Neb. 157: State v. Wilson, 24 Kan. 189, 36 Am. Rep. 257; State v. Simon, 50 Mo. 370; People v. Knapp, 26 Mich. 112; People v. Simpson, 48 Mich. 474; Montgomery v. State, 11 Ohio, 424; Scott v. People, 63 III. 508; Powers v. State, 87 Ind. 144; Jones v. State, 71 Ind. 66; Morgan v. State, 31 Ind. 193; Smith v. State, 9 Humph. 9; Walston v. Com. 16 B. Mon. 34; Com. v. Haney, Jr. 127 Mass. 455; State v. Center, 35 Vt. 378; Brotherton v. People, 75 N. Y. 159; People v. Perry, 8 Abb. Pr. N. S. 27; People v. Knickerbocker, 1 Park. Crim. Rep. 302; Small ▼. Com. 91 Pa. 304; Dumas v. State, 62 Ga. 58; Thompson v. State, 24 Ga. 297; Brown v. State, 32 Miss. 433;

A declaration in writing in respect of the circumstances attendant upon the commission of the act, made by the deceased March 27, 1895, was admitted in evidence against objection as made under a sense of impending death.

The testimony of the clerk of the court, Wheeler, to the effect that the deceased, after she was brought to Fort Smith, which was April 14, 1895, said that her former statement was true, was admitted subject to an exception because no proper foundation was laid for its admission.

Exceptions were also taken to certain parts of the charge.

Mr. Wm. M. Cravens for plaintiff in error.

Mr. J. M. Dickinson, Assistant Attorney General, for defendant in error.

Lewis v. State, 9 Smedes & M. 115; Jordan v. State, 81 Ala. 20; Walker v. State, 52 Ala. 192; May v. State, 55 Ala. 39; Ex parte Nettles, 58 Ala. 268; Benavides v. State, 31 Tex. 579; Edmondson v. State, 41 Tex. 496; State v. Brunneto, 13 La. Ann. 45; State v. Spencer, 30 La. Ann. 362; State v. Freeman, 1 Speers, L. 57; State v. Poll, 1 Hawks, 442, 9 Am. Dec. 655; State v. Peace, 1 Jones, L. 251; Vass v. Com. 3 Leigh, 786, 24 Am. Dec. 695; Bull v. Com. 14 Gratt. 613; United States v. Woods, 4 Cranch, C. C. 484; United States v. Veitch, 1 Cranch, C. C. 115; State v. Quick, 15 Rich. L. 342.

It must be proved that the man was dying, and there must be a settled hopeless expectation of death in the declarant. Reg.v. Peel, 2 Fost. & F. 21. The belief of a speedy dissolution is the test by which the competency of dying declarations is to be measured. It is not error to admit evidence showing the condition of the deceased at the time such dying declarations were made. Sullivan v. Com. 93 Pa. 284.

As to whether consciousness of death can be inferred from the nature of the wound, the party being speechless, see Reg. v. Morgan, 14 Cox С. С. 337. 28 Eng. Rep. (Moak's ed.) 583; Reg. v. Bedingfield, 14 Cox, C. C. 341, 28 Eng. Rep. (Moak's ed.) 587.

It is not necessary that the declarations should be stared at the time to be made under a sense of impending death. It is enough if it satisfactorily appears in any mode that they were made under that sanction; whether it be directly proved by the express language of the declarant, or be inferred from his evident danger, or the opinions of the medical or other attendants stated to him, or from his conduct or other circumstances of the case. People v. Taylor, 59 Cal. 640; People v. Gray, 61 Cal. 164, 44 Am. Rep. 549.

It must be made to appear that it was made under a fixed belief and moral con iction that death was then impending and certain to follow almost immediately, and otherwise under such circumstances as to exclude the supposition that the declarant in making it was influenced by malice, revenge, or any conceivable motive to misrepresent the real facts. Tracy v. People, 97 III. 101.

If it appears in any mode that there was a hope of recovery, however faint, still existing in the mind of the declarant, the declaration is not admissible. People v. Gray, 61 Cal. 164, 44 Am. Rep. 549; Com. v. Roberts, 108 Mass. 296; People v. Anderson, 2 Wheel. C. С. 398.

Dying declarations are not admissible in evidence if the declarant had the slightest hope of recovery, although he dies within an hour afterwards. People v. Hodgdon, 52 Cal. 72, 38 Am. Rep. 30.

Mr. Chief Justice Fuller delivered the opin- | was true; and that she replied "it was, in fon of the court:

While in the admission of the declarations of the victim as to the facts of a homicide the utmost caution must be exercised to the end that it be satisfactorily established that they were made under the impression of almost immediate dissolution, we think that the evidence of the state of mind of Anna Maledon, in that particular, when the declaration of March 27, 1895, was made, and which we need not recapitulate, was sufficient to justify the 555] circuit court in admitting *it. Mattox v. United States, 146 U. S. 140, 151 [36:917, 921]. But the testimony of Wheeler stands on different ground and we are of opinion should not have been admitted.

In answer to leading questions, the witness said that he saw Anna Maledon after she was brought to Fort Smith; that he asked her whether the declaration of March 27, 1895,

every particular."

The deceased received the fatal wound March 25, and her statement of March 27, 1895, was admitted as a dying declaration. The interview with Wheeler was on or after April 14, 1895, and whether she then spoke under the admonition of her approaching end or anticipated recovery does not appear.

It has been held that a declaration is admissible if made while hope lingers, if it is afterwards ratified when hope is gone (Reg. v. Steele, 12 Cox, C. C. 168); or if made when the person is without hope, though afterwards he regains confidence. State v. Tilghman, 11 Ired. L. 513; Swisher v. Com. 26 Gratt. 963, 21 Am. Rep. 330; 1 Greenl. Ev. (15th ed.) § 158, note a. But the repetition of a dying declaration cannot itself be admitted as a reiteration of the alleged facts if made when hope has been regained. Nor can we perceive that this

A hope of recovery subsequently entertained will | Mich. 474; Rakes v. People, 2 Neb. 157; State v. Kil

not affect the admissibility of a declaration made under the consciousness of impending death. State v. Kilgore, 70 Mo. 546; Reg. v. Hubbard, 14 Cox, C. C. 565; Swisher v. Com. 26 Gratt. 963, 21 Am. Rep. 330; Jackson v. Com. 19 Gratt. 656.

A, when under sense of impending death, declared that the shooting was accidental; a week afterwards, while in cheerful spirits, said her former statement was a "story." Held, that her last statement was not admissible. Stewart v.State, 2 Lea, 598. A man was wounded in a fight with the defendant, and on the same day, while expecting to die, made certain statements in relation to the fight. He lived ten days longer, and his physicians expressed the hope to him that he would recover, and he said, "I hope so too," but at last died of the wounds. It was held by the court that evidence of his statements was admissible on the trial of defendant for murder. Swisher v. Com. 26 Gratt. 963, 21 Am. Rep. 330.

The declaration may be by signs or other appropriate modes of communication. People v. Simpson, 48 Mich. 474; Rex v. Mosley, 1 Mood. C. C. 97; Com. v. Casey, 11 Cush. 417, 59 Am. Dec. 150; Reg. v. Morgan, 14 Cox, C. C. 337, 28 Eng. Rep. (Moak's ed.) 583; Reg. v. Bedingfield, 14 Cox, C. C. 341, 28 Eng. Rep. (Moak's ed.) 587.

It is no objection to their admissibility that they were made in answer to leading questions, or obtained by pressing and earnest solicitation. 3 Russell, Crimes & Misdemeanors (5th ed.) 360; Com. v. Casey, supra; Com. v. Haney, 127 Mass. 455; Vass v. Com. 3 Leigh, 786, 24 Am. Dec. 695; Ingram v. State, 07 Ala. 67; Jones v. State, 71 Ind. 66; People v. Vincente Sanchez, 24 Cal. 17; State v. Wilson, 24 Kan. 189, 36 Am. Rep. 257; State v. Trivas, 32 La. Ann. 1086, 36 Am. Rep. 293; Rex v. Fagent, 7 Car. & P. 238; Rex v. Reason, 1 Strange, 499; Rex v. Woodsock, 2 Leach, C. C. 561.

An instruction that dying declarations given in evidence on the part of the stare are to be received with the same degree of credit as if testified to under oath on examination is erroneous. State v. Mathes, 90 Mo. 571; State v. Vansant, 80 Mo. 67: Lambeth v. State, 23 Miss. 322.

gore, 70 Mo. 546; Swisher v. Com. 26 Gratt. 970, 21 Am. Rep. 330: State v. Oliver, 2 Houst. (Del.) 585; State v. Tilgham, 11 Ired. L. 513; State v. Poll, 1 Hawks, 442, 9 Am. Dec. 605; State v. Daniel, 31 La. Ann. 91; People v. Simpson, 48 Mich. 474; Rex v. Woodcock, 2 Leach, C. C. 5; Rex v. Tinkler, 1 East, P. C. 354; Rex v. Mosley, Mood. C. C. 97; Rex v. Bonner, 6 Car. & P. 386; Craven's Case, 1 Lew. C. C. 77. Dying declarations are restricted to the act of killing and to the circumstances immediately attending it and forming a part of the res geste, When they relate to former and distinct transactions, and embrace facts or circumstances not immediately illustrating or connected with the declarant's death, they are inadmissible. Walker v. State, 52 Ala. 192; Ben v. State, 37 Ala. 103; Johnson v. State, 17 Ala. 618; Faire v. State, 58 Ala. 74; Ratteree v. State, 53 Ga. 570; West v. State, 7 Tex. App. 150; People v. Fong Ah Sing. 64 Cal. 253; Nelson v. State, 7 Humph. 542: Moses v. State, 11 Humph. 232; Hudson v. State, 3 Coldw. 355; Leiber v. Com. 9 Bush, 13; Luby v. State, 12 Bush, 1; State v. Shelton, 2 Jones, L. 360, 64 Am. Dec. 587; State v. Wood, 53 Vt. 560; State v. Center, 35 Vt. 386; Wroe v. State, 20 Ohio St. 460; Hackett v. People, 54 Barb. 370; Marshall v. Chicago & G. E. R. Co. 48 111. 475, 95 Am. Dec. 561; State v. Vansant, 80 Mo. 67; State v. Draper. 65 Mo. 335, 27 Am. Rep. 287; State v. Chambers, 87 Mo. 406: Montgomery v. State, 80 Ind. 338, 41 Am. Rep. 815; Jones v. State, 71 Ind. 66; Weyrich v. People, 89 Ill. 90: Travelers' Ins. Co. v. Mosley, 75 U. 8.8 Wall. 397 (19: 437).

What occurs before or after the act has been done does not constitute a part of the res gestas, although the interval of separation may be very brief. Montgomery v. State, and Jones v. State, supra; Wheeler v. State, 14 Ind. 573; Binns v. State, 57 Ind. 46, 26 Am. Rep. 48; Bland v. State, 2 Ind. 608; Field v. State, 57 Miss. 474, 34 Am. Rep. 476, and note.

Dying declarations must be at the time and place of shooting, in order to be admitted on the ground that they are part of the res geste. Before such declarations, alleged to have been made some time after the shooting, will be admitted in evidence, it must be shown that the declarant was aware of his approaching death. Kane v. Com. 109 Pa. 541; Kendrick v. State, 55 Miss. 436; Kraner v. State, 61 Miss.

They must be uttered under a sense of impending
dissolution, and it does not matter that death failed
to ensue until a considerable time after such declar-
ations were made. 3 Russell, Crimes & Misdemean- | 158; Oliver v. State, 17 Ala. 587; People v. Ah Lee,
ors (5th ed.) 355; Reynolds v. State, 68 Ala. 502: 60 Cal. 85: Territory v. Davis (Ariz.) 10 Pac. 359;

Oliver v. State, 17 Ala. 587; McDaniel v. State, 8
Smedes & M. 401, 47 Am. Dec. 93; State v. Wilson, 24
Kan. 189, 36 Am. Rep. 257: Com. v. Haney, 127 Mass.
455; Com. v. Cooper, 5 Allen, 495, 81 Am. Dec. 762:
Com. v. Roberts, 108 Mass. 301; People v. Simpson, 48

Lund v. Tyngsborough, 9 Cush. 36; Chapin v. Marlborough, 9 Gray, 244, 69 Am. Dec. 281; Com. v. Densmore, 12 Allen, 535; Wroe v. State, 20 Ohio St. 460; Hurd v. People, 25 Mich. 405; People v. Grunzig, 1 Park. Crim. Rep. 299.

is otherwise, because the record states that Wheeler was sworn "in rebuttal." Rebutting evidence is evidence in denial of some affirmative case or fact which defendant has attempted to prove. Our attention has been called to no attempt on behalf of defendant below to prove that Anna Maledon made on her death bed,

that the foundation must be laid, and that covered *sufficiently every suggestion that [556 the evidence was admissible without it. And as this was not legitimate rebutting testimony, it could not be admitted without the proper foundation, lation, although the order of proof was waived. As we understand the record, a sharp con

after her declaration of March 27, any retrac-troversy was raised over what deceased had

tion thereof, or any statement inconsistent with it, if evidence to that effect would have justified the introduction of this testimony as tending to rebut it.

It is true that counsel for plaintiff in error rested their objection on the ground that no foundation for the admission of the testimony was laid. But while the omission to challenge the evidence as not properly in rebuttal may have waived the mere order of proof, this did not concede that the want of foundation could be excused for any reason. The contention was

said at the time of the homicide; and the evidence of Wheeler may have had so important a bearing that its admission must be regarded as prejudicial error.

Whether the homicide was committed under such circumstances as to reduce the grade of the crime from murder to manslaughter, or as to permit an acquittal on the ground of misadventure, were questions raised in the case on behalf of plaintiff in error; and it is urged that the exception should be sustained to the statement in the charge that "if a man does

The exclamations of deceased at the time he was | 37 Ala. 103; Johnson v. State, 17 Ala. 618; Mose v.

bot, "O God! O my God!"-are admissible as part of the res gestæ. People v. Brown, 59 Cal. 345; Stagner v. State, 9 Tex. App. 440: State v. Porter, 34 Iowa, 131; State v. Wagner, 61 Me. 178; Burns v. State, 61 Ga. 192; Jackson v. State, 52 Ala. 305; Com. v. Hackett, 2 Allen, 136; Lewis v. State, 9 Smedes & M. 115.

The following question to the wounded man, and his answer, are not admissible: "Had either of them threatened to injure you before?" "Yes; my wife (one of the respondents) has threatened a thousand times to kill me before. She threatened to kill me before she went away the last time. She went away in July; I think, though, it was August 10th. She came back day before yesterday." State ▼. Wood, 53 Vt. 560.

Where the declaration was: "I beheved he (defendant) was going after his pistol when he went into the house.... I had seen him at the house with a pistol before, "-held, that this ought to have been excluded. State v. Vansant, 80 Mo. 67.

The name of the person who committed the homicide, as well as the name of his victim, may be proved by the dying declarations of the latter. Boyle v. State, 105 Ind. 469, 55 Am. Rep. 218; State v. Hamilton, 27 La. Ann. 400; Sylvester v. State, 71 Ala. 17; State v. Johnson, 76 Mo. 121; Lister v. State, 1 Tex. App. 739.

Where the deceased said, on the evening before the morning of her death, "Mr. F. has killed me," and, about the same time, "I am dead; Mr. F. has killed me,"-it was held that the declarations were udmissible of the dying declarations of the deDeased. State v. Freeman, 1 Speers, L. 57.

Where two persons were killed and A was found dead at a short distance from his house, and B, his wife, was found in the house mortally wounded,beld, that her dying declarations were not admissible upon the trial for the murder of A. Brown v. Com. 73 Pa. 321, 13 Am. Rep. 740; State v. Bohan, 15 Kan. 407; Krebs v. State, 3 Tex. App. 348; State v. Sullivan, 51 Iowa, 142; State v. Fitzhugh, 2 Or. 227; Reg. v. Hind, 29 L. J. М. С. 147.

The declarations of the deceased are admissible only as to those things as to which he would have been competent to testify if sworn as a witness in the cause. They must relate to facts only, and not to mere matters of opinion or belief. People v. Taylor, 59 Cal. 640; People v. Vincente Sanchez, 24 Cal. 26; Warren v. State, 9 Tex. App. 629, 35 Am. Rep. 745; Roberts v. State, 5 Tex. App. 141; Walker v. State, 39 Ark. 221; State v. Chambers, 87 Mo. 406; State v. Draper, 65 Mo. 335, 27 Am. Rep. 287; McPherson v. State, 22 Ga. 478; Whitley v. State, 38 Ga. 50; Ratteree v. State, 53 Ga. 570; Savage v. State, 18 Fla. 909; Reynolds v. State, 68 Ala. 502; Ben v. State,

State, 35 Ala. 421; McLean v. State, 16 Ala. 674; People v. Olmstead, 30 Mich. 431; Moeck v. People, 100 Ill. 242, 39 Am. Rep. 38; Collins v. Com. 12 Bush, 271; Nelson v. State, 7 Humph. 542; Binns v. State, 46 Ind. 311; Montgomery v. State, 80 Ind. 338, 41 Am. Rep. 815; Wroe v. State, 20 Ohio St. 460; State v. Williams, 67 Ν. Ο. 12; People v. Shaw, 63 N. Y. 38; United States v. Veitch, 1 Cranch, C. C. 115.

The ascertainment of the primary facts is for the court. The judicial mind must be satisfied and when satisfied that the requsite predicate is established, the duty to receive the evidence is imperative. Ward v. State, 78 Ala. 441; McLean v. State, 16 Ala. 672; Wills v. State, 74 Ala. 21; Kilpatrick v. Com. 31 Pa. 198; Kehoe v. Com. 85 Pa. 127; People v. Smith, 104 N. Y. 491, 58 Am. Rep. 537; Donnelly v. State, 26 N. J. L. 601; Com. v. Murray, Ashm. 41; State v. Frazier, 1 Houst. Crim. Rep. 176; Swisher v. Com. 26 Gratt. 963, 21 Am. Rep. 330; State v. Williams, 68 N. C. 62; Owens v. State, 59 Miss. 547; Lambeth v. State, 23 Miss. 322; Bolin v. State, 9 Lea, 516; State v. Cantieny, 34 Minn. 1; State v. Elliott, 45 Iowa, 486; State v. Johnson, 76 Mo. 121; Doles v. State, 97 Ind. 555; Jones v. State, 71 Ind. 66; Starkey v. People, 17 III. 17; People v. Glenn, 10 Cal.82; State v. Ah Lee, 7 Or. 237.

But the court can determine only as to the admissibility of dying declarations. Their weight or credit must be left to the jury. Campbell v. State, 38 Ark. 509: State v. McCanon, 51 Mo. 160; Walker v. State, 37 Tex. 366; People v. Abbott (Cal.) 4 Pac. 769: Donnelly v. State, 26 N. J. L. 463, and 601; Doles v. State, supra; Com. v. Casey, 11 Cush. 417, 59 Am. Dec. 150.

Dying declarations may be given in evidence, as well to acquit as to convict the prisoner. Moore v. State, 12 Ala. 764.

The dying declarations of the deceased are not only admissible against a prisoner, but also in his favor. Rex v. Scaife, 1 Mood. & R. 551; People v. Knapp, 26 Mich. 112; Moore v. State, supra; Moeck v. People, 100 Ill. 242, 39 Am. Rep. 38; Adams v. People, 47 Ill. 376; Mattox v. United States, 146 U. S. 140 (36:917).

When the declarant, if living, would have been incompetent to testify by reason of infamy and the like, his dying declarations are inadmissible. 1 Greenl. Ev. (14th ed.) § 157; Nesbit v. State, 43 Ga 238; Walker v. State, 39 Ark. 221.

The dying declaration of a husband is competent evidence against the wife, on her trial for his mur der, to show her guilt; and on the trial of the husband for the murder of his wife, her dying declarations are evidence against him. Moore v. State, 18 Ala. 764: People v. Green, 1 Denio, 614; Pennsyl vania v. Stoops, Add. 381.

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