munity of interest no longer exists. The confession of any participant in the criminal design is then only receivable against himself. In other words, the confession of an accomplice or participant in a criminal act is only receivable against his associates when it can be connected with and is relevant to acts for which the latter are responsible.'

Where persons other than the defendant are mentioned in a confession, and it is not alleged in the indictment that they are implicated in the crime, the confession is admissible and the court must instruct the jury to disregard this fact.3

§ 98. Confessions of treason.- In consequence of the statutory requirement that to convict a prisoner of the crime of treason the testimony of two witnesses to an overt act was required, it was at one time doubted whether an extra-judicial confession of treason was admissible against one charged with that crime. It is now the law that while no one can be convicted of the crime solely upon a confession which does not assume the form of a plea of guilty in open court, yet any confession, made extra-judicially, is admissible against him, its weight and credibility being for the jury. It must, however, be proved by two witnesses to be admissible.5

1 Pace v. State (Tex., 1893), 20 S. W Rep. 762; Ryan v. State, 83 Wis. 486; State v. Grant (Iowa, 1893), 53 N. W. Rep. 120; Wilbur v. Strickland, 1 Rawle, 458; United States v. Gibert, 2 Sumn. 16; State v. Donelon (La., 1893), 12 S. Rep. 922; Cable v. Com., 20 S. W. Rep. 220; Searles v. State, 6 Ohio Cir. Ct. R. 331; Beicher v. State, 125 Ind. 419; State v. McKenzie, 102 Mo. 620; McGraw v. State, 20 S. W. Rep. 279; People v. Collins, 64 Cal. 293; United States v. Gooding, 12 Wheat. 469; Amer. Fur Co. v. United States, 2 Pet. 358; Corbett v. State, 5 Ohio Cir. Ct. 155. The confession or incriminating act may be given in evidence prior to proof of the conspiracy on the promise of the prosecutor to establish a prima facie conspiracy later. Hall v. State (Fla., 1893), 12 S. Rep. 449; State v. Grant (Iowa, 1893), 53 N. W. Rep. 120; State v. McGee, 46 N. W. Rep. 764.

2 Priest v. State, 10 Neb. 393; State v. Mims (S. C., 1893), 17 S. E. Rep. 850; State v. Weasel, 30 La. Ann. 919; Crosby v. People, 27 N. E. Rep. 49; Gove v. State, 58 Ala. 391; Spencer v. State, 31 Tex. 64; State v. Tibeau, 30 Vt. 100; Ake v. State, 31 Tex. 476; Com. v. Thompson, 99 Mass. 444. The silence or failure to explain of one jointly indicted with others where statements incriminating him are made by one of his associates does not, it is held, raise a presumption against him. Com. v. McDermott, 123 Mass. 441.

3 Rex v. Hearne, 4 C. & P. 215; State v. Carr, 53 Vt. 37, 41. 41 East P. C. 131-133. See post, § 380.

5 Francis' Case, 1 East P. C. 133135; 1 Burr's Trial, 196, cited in 1 Greenl. on Evid., § 235.

§ 100. Definition.

CHAPTER VII.

DYING DECLARATIONS.

101. Sense of approaching death. $ 102. In what cases admissible.

103. Form of the declaration.

§ 100. Definition.- Another class of exceptions to the rule rejecting hearsay comprises dying declarations. These declarations may be defined as statements or declarations of some material fact concerning a homicide, made by a person who is the victim and who fully realizes that he is in imminent danger of death, and that in a very short time. The fact that the speaker believes he is at the point of death, and that in all probability in a very short time all that is spiritual and immortal will forever forsake the body, and will encounter the dread possibilities of the unknown and supernatural world, is deemed to furnish a sanction equivalent to that of a solemn and positive oath administered in court. If, therefore, the deceased was totally irreligious, so that he had no belief in a state of future reward or punishment, this fact alone, while not rendering his statement inadmissible, is competent to go to the jury as affecting the credit to be given it.3

On the other hand, the fear of punishment for perjury, so far as it can be administered in this world, is wholly absent, and unless the dying man possesses and is controlled by a vivid and conscientious feeling of accountability to the Judge of all men in whose presence he expects soon to appear, it is probable that his utterances may be materially influenced and biased against the accused by the passions of revenge and anger. But the fact that the declarant believed, as a matter of religious opinion, that he may repent of any sin at any Goodall v. State, 1 Oreg. 333; State v. Elliott, 45 Iowa, 386; State v. Ah Lee, 8 Oreg. 214. See post, § 313, as to the requirements of religious belief of witnesses.

1 See 1 Greenl. on Evid., § 156; People v. Olmstead, 30 Mich. 435.

Rex v. Woodcock, 2 Leach Cr. Cas. 567.

Hill v. State, 64 Miss. 431: 1 S Rep. 494: People v. Chin, 51 Cal. 597;

moment before death, will not render his declaration inadmissible.1

§ 101. Sense of approaching death.- The deceased person when he made the declaration must have been conscious of the near approach of death, and must believe that there is absolutely no hope of his recovery. The mental condition of the declarant in this respect must therefore be shown before his declaration is received, and if he entertains any hopes, however slight, that his injury is not mortal, his statement will be rejected.3

The statement of the dying person himself that he is dying should always be received, as it is the most satisfactory and convincing evidence; but upon this important point no form of words is necessary, nor is it the only evidence. So his resignation to approaching death or his belief that he may recover may be shown by independent evidence and may be proven by the statements of those attending him or inferred from the circumstances of the case. Thus, where the de

1 North v. People, 28 N. E. Rep. 127; Com. v. Black, 108 Mass. 296; 966: 139 Ill. 81. State v. Blackburn, 80 N. C. 474; State v. Daniel, 31 La. Ann. 91; Com. v. Thompson (Mass., 1893), 33 N. E. Rep. 1111; State v. Spencer, 30 La. Ann. 362; State v. Schmidt, 73 Iowa, 469; Powers v. State, 87 Ind. 144.

2 Whitaker v. State, 79 Ga. 87; 3 S. E. Rep. 403; State v. Johnson, 34 N. W. Rep. 177; 72 Iowa, 396; Stephenson v. State, 110 Ind. 358; State v. Mathes, 90 Mo. 571; Darbey v. State. 23 Tex. App. 407; Irby v. State, 23 id. 103; Peak v. State, 50 N. J. L. 179; 12 Atl. Rep. 701; Walton v. State, 79 Ga. 46; 5 S. E. Rep. 205; Vaughn v. Com., 86 Ky. 431; 6 S. W. Rep. 153; State v. Murdy, 81 Iowa, 603; People v. Bemmerly, 87 Cal. 117; 25 Pac. Rep. 266; Snell v. State, 29 Tex. App. 236; State v. Turlington, 102 Mo. 642; Hammill v. State, 90 Ala. 577; United States v. Heath, 19 Wash. Law R. 818; Hall v. Com. (Va., 1892), 15 S. E. Rep. 517; Young v. State (Ala., 1892), 10 S. Rep. 913; State v. Bannister, 35 S. C. 290; 14 S. E. Rep. 678; McQueen v. State, 94 Ala. 50; 10 S. Rep. 433; Archibald v. State, 122 Ind. 122; Scott v. People, 63 IL 508; Kehoe v. Com., 80 Pa. St.

3 See cases in last note. If the declarant is conscious of approaching death, it is not material that no one told him that he was about to die. Hammel v. State, 90 Ala. 577.

4 Com. v. Thompson (Mass., 1893), 33 N. E. Rep. 1111.

3

People v. Bemmerly, 25 Pac. Rep. 266; 87 Cal. 117; People v. Samario, 84 Cal. 484; Fulcher v. State, 13 S. W. Rep. 750; 28 Tex. App. 465; Pulliam v. State, 6 S. Rep. 839; 88 Ala. 1; Archibald v. State, 122 Ind. 122; People v. Smith, 104 N. Y. 491; People v. Ramirez, 73 Cal. 403; State v. Newhouse, 38 La. Ann. 862; S. Rep. 799; Ledbetter v. State, 23 Tex. App. 247; State v. Schmidt, 73 Iowa, 466 35 N. W. Rep. 590; People v. Farmer.

ceased states that he was sure to die;' that he never expected to recover from his wound; that he knew he could not live;' that he was killed, or makes use of similar expressions, it is conclusively presumed that he spoke under a full sense of approaching death. But where the declarant merely states that he has "no hope at present," or says "Who knows? perhaps I may get well," or expresses a hope if he dies to meet one in heaven, his declaration not being made in apprehension of approaching death, is inadmissible.

Though the dying statement was made while the deceased was still hopeful of recovery, yet it is receivable if he subsequently ratifies it when all hope has departed. So, on the other hand, the fact that the dying man is afterwards encouraged to believe that he will recover will not render inadmissible his statement previously made in immediate expectation of death.10 But the fact that death does not immediately ensue

18 Pac. Rep. 800; State v. Block, 42 La. Ann. 861; United States v. Heath, 20 D. C. 272; Jordan v. State, 81 Ala. 20; Dixon v. State, 13 Fla. 636; Dumas v. State, 62 Ga. 58; State v. Wilson, 24 Kan. 189; People v. Com., 87 Ky. 487; 9 S. W. Rep. 509; Mockabee v. Com., 78 Ky. 380; State v. Mills, 91 N. C. 581; Railing v. Com., 113 Pa. St. 37.

1 State v. Umble (Mo., 1893), 22 S. W. Rep. 378; Crump v. Com. (Ky., 1893), 20 id. 390; State v. Aldrich, 50 Kan. 666; Wallace v. State (Ga., 1893), 15 S. E. Rep. 700; Evans v. State (Ark., 1893), 22 S. W. Rep. 1026; State v. Fletcher (Oreg., 1893), 33 Pac. Rep. 575; State v. Turlington, 102 Mo. 642; Pulliam v. State, 88 Ala. 1.

2 State v. Nance, 25 S. C. 168.

3 People v. Callaghan, 4 Utah, 49. 4 State v. Russell, 32 Pac. Rep. 854; State v. Elkins, 101 Mo. 344; 14 S. W. Rep. 116; Luker v. Com. (Ky., 1887), 5 S. W. Rep. 354.

6 Jackson v. Com., 19 Gratt. 656. 7 State v. Medlicott, 9 Kan. 257. 8 Graves v. People (Colo., 1893), 52 Pac. Rep. 63.

9 Reg. v. Steele, 12 Cox C. C. 168. 10 State v. Shafer (Oreg., 1893), 32 Pac. Rep. 545; State v. Tilghman, 11 Ired. (N. C.) Law, 573; State v. Turlington, 102 Mo. 642; Lursher v. Com., 26 Gratt. 963. Cf. Ex parte Nettles, 58 Ala. 268. It is for the court to determine whether the sense of approaching death was present (Roten v. State (Fla., 1893), 12 S. Rep. 890); and the burden of proof is upon the prosecution. Peak v. State, 50 N. J. L. 222; Digby v. People, 113 III. 125; Wallace v. S.ate (Ga., 1893), 15 S. E. Rep. 710; Evans v. State (Ark., 1893), 22 S. W. Rep. 1026. A statement made two or three minutes before death is admissible as a dying statement, though the deceased did not say he believed he was going to die until after he had finished his declaration. People v. Sare Bo, 72

5 Rex v. Jenkins, L. R. 1 Cr. Cas. Cal. 623; State v. Spencer, 30 La.

furnishes no valid ground for rejecting the declaration of the deceased, if when it was made it is shown he was fully impressed with the feeling that he would die in a short time.' Thus, declarations made forty-eight hours, ten days,3 eleven days or six weeks before the death of the declarant have been received."

102. In what cases admissible. The declaration of a deceased person which is offered in evidence as his dying declaration is only admissible where his death is the subject of an accusation of homicide and the circumstance of that death. the subject-matter of the declaration."