effects of a duly administered oath, as it has been argued, no man in the very article of death, will deliberately go down to his grave with a lie upon his lips, and the life of a fellow being dependent upon the last gasp that he shall utter. The plausibility of this reasoning is admitted, but it is a well authenticated fact in criminal annals that countless men have calmly met the awful solemnities of death in an attitude of utter moral indifference; through the combined medium of resentment and mendacity they are induced to distort and falsify their statements until even in cases where firm belief in the doctrine of future retribution has been clearly shown the most flagrant and atrocious falsehoods have been deliberately uttered. In determining, therefore, the degree of weight that should characterize this species of evidence consideration is due, first to the mental and physical equipment of the declarant at the time of making the statement; second to the character and capacity of the communicating medium, and here we pause to interpolate a cautionary suggestion as to the reliability of the reporters of the dying declaration. Obviously they are beyond the fear of contradiction and to divert suspicion, either from themselves or others of their kindred they are frequently impelled to a gross perversion of the truth.

Notwithstanding the admitted infirmities we have outlined, the necessities of the case must and do prevail, and in all jurisdictions dying declarations are admissible in evidence. Primarily the question of admission is one of law for the court-the presiding judge must decide whether upon all the facts elicited the prosecution has properly paved the way to its reception, but on this being fairly shown it is rarely (although sometimes) reversible error to allow the declaration in evidence. At one time the untenable position was maintained, that unless the declarant was shown to have accepted the doctrine of future punishment his declaration should be excluded. But this view no longer dominates and our courts of last resort have quite generally receded from the position. The authorities upon this subject are simply overwhelming, and in the following citations the aim has been to include only those that the best reflect the present law. Boyle v. State, 105 Ind. 469, 55 Am. Rep. 218; Brotherton v. People, 75 N. Y. 159; Brown v. Com. 73 Pa. 321, 13 Am. Rep. 740; Oliver v. State, 17 Ala. 587; Campbell v. State, 11 Ga. 353; State v. Nash, 7 Iowa, 347; People v. Johnson,

1 Park. Crim. Rep. 291; People v. Lee, 17 Cal. 76; Hill v. State, 41 Ga. 484; Scott v. People, 63 Ill. 508; Watson v. State, 63 Ind. 548; Campbell v. State, 38 Ark. 498; Hurd v. People, 25 Mich. 405; People v. Knapp, 26 Mich. 112; Thompson v. State, 11 Tex. App. 51; People v. Ybarra, 17 Cal. 166; Cleveland v. Newson, 45 Mich. 62; Donnelly v. State, 26 N. J. L. 463; Kehoe v. Com. 85 Pa. 127; State v. Oliver, 2 Houst. 585; May v. State, 55 Ala. 39; State v. Scott, 12 La. Ann. 274.

§ 331. Admissible only when Death is the Subject of the Charge. The rule is, that such evidence is admissible only "when the death of the deceased is the subject of the charge, and the circumstances of the death the subject of the dying declarations." Rex v. Mead, 2 Barn. & C. 605, and note; State v. Cameron, 2 Pinney, 495; Miller v. State, 25 Wis. 388; Reg. v. Hind, 8 Cox, C. C. 300. In the last case cited, it is said that "the reception of this kind of evidence is clearly an anomalous exception in the law of England, which ought not to be extended." See also The Sussex Peerage, 11 Clark & F. 108, 112.

This kind of evidence is not regarded with favor. The remarks of Redfield, J., in State v. Howard, 32 Vt. 380, are mere dicta. Physical or mental weakness consequent upon the approach of death, a desire of self-vindication, or a disposition to impute the responsibility for the wrong to another, as well as the fact the declarations are made in the absence of the accused, and often in response to leading questions and direct suggestions, and with no opportunity for cross-examination; all these considerations conspire to render such declarations a dangerous kind of evidence. The rule of evidence is of common law origin, and applied and still applies only to cases of felonious homicide at common law. State v. Dickinson, 41 Wis. 299. We fail to perceive any substantial reason for limiting the application of this rule to cases of homicide at common law. On prosecution of indictments for procuring an abortion, dying declarations should be admitted.

A dying declaration is not admissible except where the death of the deceased is the subject of a charge of homicide, on trial, and the circumstances of the death are the subject of the declaration. Abbott, Trial Brief, § 562, citing People v. Davis, 56 N. Y. 96; State v. Harper, 35 Ohio St. 78, 35 Am. Rep. 596; Railing v. Com. 110 Pa. 100, 32 Alb. L. J. 409, overruling Com. v. Bruce, 16 Phila. 510; contra, Montgomery v. State, 80

Ind. 338. And, contrary to the early views regarding the subject, it is generally considered that the recitals of the Federal Constitution which provide that the accused shall be confronted by the witnesses against him, are not infringed by the rules of evidence which admit the declarations of a person in extremis. Miller v. State, 25 Wis. 384; Robbins v. State, 8 Ohio St. 131.

The rules of admission are fully satisfied if it can be shown that the declarant is conscious of the fact that he was in a dying condition; and the length of time that may elapse between the declaration and actual dissolution is of no consequence as regards the admissibility of the statement made. Com. v. Cooper, 5 Allen, 495; Jones v. State, 71 Ind. 66; Swisher v. Com. 26 Gratt. 963.

Another well recognized rule requires that the "dying declarations should point distinctly to the cause of death, and to the circumstances producing and attending it, and this rule is onethat should not be relaxed. Declarations at the best are uncertain evidence, liable to be misunderstood, imperfectly remembered, and incorrectly stated. As to dying declarations there can be no cross-examination. The condition of the declarant in his extremity is often unfavorable to clear recollection, and to the giving of a full and complete account of all the particulars which it might be important to know. Hence all vague and indefinite expressions, all language that does not distinctly point to the cause of death and its attending circumstances, but requires to be aided by inference or supposition in order to establish facts tending to criminate the respondent, should be held inadmissible." State v. Center, 35 Vt. 378; State v. Baldwin, 79 Iowa, 714.

The English rule, as formulated by Sir James Stephen (Dig. art. 26) is couched in the following language: "A declaration made by the declarant as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, is deemed to be relevant only in trials for the murder or manslaughter of the declarant; and only when the declarant is shown, to the satisfaction of the judge, to have been in actual danger of death, and to have given up all hope of recovery at the time when his declaration was made. Such a declaration is not irrelevant merely because it was intended to be made as a deposition before a magistrate, but is irregular."

§ 332. Not Competent in Cases of Abortion.—As previously noted, dying declarations are only admissible when the cir

cumstances of the death are the subject of the declaration and the death the subject of the charge; they are not admissible in a trial for abortion, even though death has ensued. Railing v. Com. 110 Pa. 100.

It is equally unquestioned that there is no grade of homicide involved in the crime commonly known as abortion. The death of the woman, when it occurs, is a necessary ingredient of the offense, and the death is in part, at least, the subject of the charge. In one sense this is true. But the question is, is it so in the real sense of the rule which controls the subject?

The above paragraph should be read in connection with the case of Montgomery v. State, 80 Ind. 338, and State v. Dickinson, 41 Wis. 299. In both those cases death resulted from an attempt to produce an abortion. It was held that the death was the subject of inquiry, and hence that it was a case for the admission of dying declarations. The dying declaration was that "the operation was performed for the purpose of producing an abortion." It was held that this declaration should have been excluded. It was said: "What the purpose of an act was is an inference from facts, and witnesses must state the facts, and not their conclusions. A witness would have been required to state what was said and done. Facts are to be stated by witnesses; inferences to be made by the jury. This rule should be applied with jealous care to dying declarations. As the accused cannot cross-examine there are no means of testing the correctness of the conclusion. It may be entirely without any foundation in fact. But we need not discuss this question, for it is well settled that dying declarations must speak to facts only, and not to mere matters of opinion." Boyle v. State, 105 Ind. 469, 55 Am. Rep. 218.

The weight of authority seems to be quite decidedly against the admissibility of this grade of evidence in cases of abortion. Thus in Rex v. Hutchinson, 2 Barn. & C. 608, note A., the prisoner was indicted for administering savin to a woman pregnant but not quick with child, with intent to procure abortion. The woman was dead, and for the prosecution, evidence of her dying declaration upon the subject was tendered. The court rejected the evidence, observing that although the declaration might relate to the cause of the death, still such declarations were admissible in those cases alone where the death of the party was the subject of the inquiry. In Reg. v. Hind, 8 Cox, C. C. 300, the defendant

was indicted for using instruments upon a woman with intent to produce an abortion, in consequence of which she died. It was held that her dying declarations in relation to the offense were inadmissible. The same course was followed in the state of New York in the case of People v. Davis, 56 N. Y. 95. It was held that the dying declaration of the woman were incompetent on the general ground that the death was not the subject of the charge. In the case of State v. Harper, 35 Ohio St. 78, 35 Am. Rep. 596, the same doctrine was held. The Chief Justice said: "This was an indictment for unlawfully using an instrument with the intent of producing an abortion, and not an indictment for homicide. State v. Barker, 28 Ohio St. 583; People v. Davis, 56 N. Y. 96. The death was not the subject of the charge, and was alleged only as a consequence of the illegal act charged, which latter was the only subject of investigation. Did the court err in rejecting the dying declaration in proof of the charge? We think not. The general rule is that dying declarations are admissible only when the death of the declarant is the subject of the charge, and the circumstances of the death are the subject of the dying declaration. Rex v. Mead, 2 Barn. & C. 605; Rex v. Lloyd, 4 Car. & P. 233, 1 Greenl. Ev. 156."

All the text-books and a host of judicial decisions assert that the rule of admissibility is confined to cases of homicide.

The case in Indiana appears to be the only one in a court of last resort in which the declarations have been held admissible. Railing v. Com. 110 Pa. 100.

§ 333. Admitted on Grounds of Necessity alone.-Dying declarations constitute the only exception to the rule, that in all cases the accused shall have the opportunity to meet, face to face, and to cross-examine, adverse witnesses. Such declarations are admitted upon the single ground of necessity. The necessity rests primarily and principally upon the presumption, that in a majority of cases, there will be no equally satisfactory proof of the same fact. This presumption, and the probability of the crime going unpunished, are the chief grounds of this exception in the law of evidence. It has been well said by a learned judge, that the great reasons why dying declarations should not be received generally, as evidence, in all cases where the facts involved may thereafter come in question, seems to be, that it wants one of the most important and indispensable elements of testimony, that of