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an opportunity for cross-examination by the party against whom it is offered. 1 Greenl. Ev. § 156, note A. See also Nelms v. State, 13 Smedes. & M. 500, 53 Am. Dec. 94; Boyle v. State, 105 Ind. 469, 55 Am. Rep. 218.

The general rule is that matters contained in a dying declaration are not competent unless they would be admissible if they came from the lips of a living witness. Montgomery v. State, 80 Ind. 338; Binns v. State, 46 Ind. 311.

In the case of Leiber v. Com. 9 Bush, 11, it was said: "The admission of dying declarations as evidence, being in derogation of the general rule which subjects the testimony of witnesses as ordinarily received to the two important tests of truth,' an oath and a cross-examination, it is obvious that such evidence should be admitted only upon the grounds of necessity and public policy, and should be restricted to the act of killing, and the circumstances immediately attending it and forming a part of the res gestæ.”

In the case of Montgomery v. State, supra, the court quoted with approval the following from Mr. Starkie: "But so jealous is the law of any deviation from the general rule, that it confines the exception to the necessity of the case, and only renders such declarations admissible when they relate to the cause of death, and are tendered on a criminal charge respecting it."

§ 334. An Exception to the Rule Regarding Hearsay.— It is well settled that dying declarations can be received only on the trial of an indictment for homicide. Wilson v. Boerem, 15 Johns. 287; People v. Davis, 56 N. Y. 95. Such evidence is received as an exception to the general rule, that hearsay evidence is not admissible only upon the principle which protects human life by punishing those who commit homicide. Such crime is often committed when none but the victim and his assailant are present, and his declarations when in extremis-conscious that he is about to die-are received to prevent a failure of justice. 1 Greenl. Ev. §§ 156, 225, and cases cited. Not so in a civil case. Waldele v. New York Cent. & H. R. R. Co. 19 Hun, 69.

It is vain to attempt to disguise the infirmities and imperfections of the human mind, and its susceptibility to false impressions, under circumstances touching the heart and exciting the sympathies; and the law has wisely, in case of dying declarations, required all the guaranties of truth the nature of the case admits of. Starkey v. People, 17 Ill. 20.

§ 335. Imminency of Death must be Apparent. In order to render the statements of a person admissible as dying declarations, such persons need not in express words declare that he knows he is about to die, or to make use of equivalent language. Com. v. Matthews, 89 Ky. 287.

Dying declarations are limited in their scope to the act which causes the death, and the attendant circumstances, or res gesta. It is essential to their admissibility that, at the time when they were made, the declarant should have been in actual danger of death, that he should then have a full apprehension of his danger and that death has ensued. 1 Taylor, Ev. § 718. "It is the impression of impending death and not the rapid succession of death in point of fact, which renders the testimony admissible." 1 Taylor, Ev. § 718; Reynolds v. State, 68 Ala. 502; Hussey v. State, 87 Ala. 121; Pulliam v. State, 88 Ala. 1; Whart. Crim. Ev. §§ 282, 284; 3 Brickell, Ala. Dig. p. 226, §§ 663, et seq.; Clark's Manual, §§ 538, et seq.

They are only admitted when it is shown that the party making them was in extremis at the time and when all hope of this world had passed; when every motive to falsehood is supposed to be silenced and the mind is induced by the most powerful considerations to speak the truth. "A situation so solemn and so awful is considered by the law as creating an obligation equal to that which is imposed by a positive oath in a court of justice." Rex v. Woodcock, 2 Leach, C. C. 500; State v. Graves, 18 Colo..

The doctrine was declared and confined with succinct completeness, in the carefully considered case of Reg. v. Jenkins, L. R. 1 C. C. 191. In the following quotation, the Chief Baron says: "The question is whether this declaration, as it now stands, was admissible in evidence. The result of the decisions is that there must be an unqualified belief in the nearness of death; a belief, without hope, that the declarant is about to die. If we look at reported cases, and at the language of learned judges, we find that one has used the expression, 'Every hope of this world gone;' another, 'Settled, hopeless expectation of death;' another, 'Any hope of recovery, however slight, renders the evidence of such declarations inadmissible.' We, as judges, must be perfectly satisfied, beyond any reasonable doubt, that there was no hope of avoiding death; and it is not unimportant to observe that the burden of proving the facts that render the declaration admissi

ble is upon the prosecution." Peak v. State, 50 N. J. L. 179, 10 Crim. L. Mag. 528.

§ 336. Infirmities of this Evidence Outlined.-The dying man is not allowed to make his statements until those about him think that he is near the end, and he sees, or thinks he sees, the shadows of death settling about him. Under such circumstances, and at such a moment, if he is a believer in personal responsibility and a future state, the mind will be centered upon and more concerned about that near future than about the things that are receding from view. And hence statements made under such circumstances, as to how the injury was received, etc., come with that infirmity that always attends inattention. Especially will this be so if those statements embody what must have been the result of a process of reasoning, as an inference, conclusion or opinion. It often happens, too, that in such an extremity the mind is not in its full vigor. The memory may have been confused and the reason blunted from physical suffering or mental anxiety. In such a condition the mind yields ready assent to what may be suggested, and the person states as a fact what is in truth a conclusion or an opinion, which would clearly appear to be erroneous, were the facts stated upon which they are based. And if facts are stated, it may be that but a part are stated, the most important being omitted. It has happened that a dying declaration made one day is contradicted by a different statement upon a subsequent day. Moore v. State, 12 Ala. 764, 46 Am. Dec. 276.

"I have said this much in order to show how important and necessary it is to exercise great caution in the admission of dying declarations in evidence against the accused, who has no opportunity for a cross-examination." Boyle v. State, 105 Ind. 469, 55 Am. Rep. 218. They should not be received at all where other evidence is attainable, and when the fact of killing is virtually admitted by the line of defense adopted, it is unnecessary to prove the declarations of the deceased. Collins v. Com. 12 Bush, 271.

Mr. Roscoe says: "Such considerations show the necessity of caution in receiving impressions from accounts given by persons in a dying state; especially when it is considered, that they can not be subjected to the power of cross-examination, a power quite as necessary for securing the truth as the religious obligation of an oath can be. The security, also, which courts of justice have in ordinary cases for enforcing truth, by the terror of punishment

and the penalties of perjury cannot exist in this case. Roscoe, Crim. Ev. 35.

In the case of Shaw v. People, 3 Hun, 272, it was said: "It is even more important to exclude an opinion, declared in articulo mortis, than in an ordinary case, where the witness may be subjected to a cross-examination, etc.”

§ 337. Accused may Show Want of Belief that Death is at Hand.—In a criminal prosecution the accused has the right to object to the introduction of a dying declaration, on the ground that when he made it the declarant did not believe that he was about to die. In support of his objection it is competent for the accused to introduce testimony tending to show that when the declaration was made the declarant was not under the sense of an impending dissolution, but that he had hopes of recovery. State v. Molisse, 36 La. Ann. 920.

338. Matters of Mere Opinion are Inadmissible.-Matters of mere opinion are inadmissible. Where the declarant merely states his opinion as to the cause of an injury, and such statement would not be received were the declarant to be sworn as a witness, it is equally inadmissible as a declaration in articulo mortis. In such cases the familiar rule obtains the ascendency that the witness must testify to facts and not emit mere opinion. Binns v. State, 46 Ind. 311; Wroe v. State, 20 Ohio St. 460; Whitley v. State, 38 Ga. 50.

The introduction of testimony of this nature must very much be confided to the discretion of the judge, who has become familiar with all the antecedents in the conduct of the cause. Com. v. M'Pike, 3 Cush. 184, 50 Am. Dec. 727; Donnelly v. State, 26N. J. L. 601.

One feature of this peculiar grade of evidence must be clearly outlined. The nisi prius courts upon which ordinarily involved, in the first instance, the trial of those cases which involve questions as to the admission of dying declarations, are frequently misled by the conflict in adjudication and the plausibility of argument into the admission of evidence that represents a conclusion or opinion of the declarant. Decisions have been found which apparently support the contention that such evidence is admissible. Wroe v. State, 20 Ohio St. 460; Roberts v. State, 5 Tex. App. 141; Payne v. State, 61 Miss. 161; Rex v. Scaife, 1 Mood. & R. 551; People v. Abbott, 4 West Coast. Rep. 132; State v. Nettlebush,

20 Iowa, 257; Brotherton v. People, 75 N. Y. 159; Whart. Crim. Ev. § 294.

Declarations of the deceased, made when in extremis, which are not statements of fact which a living witness would have been permitted to testify to, but are merely expressions of belief and suspicions, are not competent evidence. People v. Shaw, 63 N. Y. 36.

In the case of Rex v. Scaife, 1 Mood. & R. 551, the declaration was: "I don't think he would have struck me if I had not provoked him." Coleridge, J., hesitated, but finally admitted the declaration upon the ground that it might have an influence on the amount of punishment. There was no discussion at all as to whether or not the declaration involved a conclusion. It will be observed that the declaration did not involve the one and vital question in the case, and that it was in favor of, and not against, the prisoner. The prisoner was not endangered by the want of an opportunity to cross-examine the dying witness, because the declaration was in his favor. In speaking of this declaration, the Kentucky court of appeals, in the case of Haney v. Com. (Ky.) 5 Crim. L. Mag. 47, said, that it was the expression of an opinion, but was admissible because in favor of the accused. The Ohio court cites it as being the statement of a fact. It was held in the Kentucky case above, as stated in the syllabus, that "the general rule that declarations of the deceased are admissible only when they relate to facts and not to mere matters of opinion, is subject to the exception that declarations of the mere opinion of deceased are admissible when they are favorable to the accused, and explain the conduct or motives of the deceased." In speaking of such declarations in favor of the accused, the court said, amongst other things, "The admission of such declarations can do no harm. Frauds cannot be practiced under cover of the rule. And there is not so much danger of misconception or perjury as where the declarant speaks from hostile feelings, surrounded by sympathizing friends, ready to construe his words as favorable to their own views, as may reasonably be done."

Much of the foregoing discussion is embodied in the dissenting opinion of Mr. Justice Zollars of the Indiana supreme court of judicature in the case of Boyle v. State, 105 Ind. 469, 55 Am. Rep. 218, decided in 1885. It is seldom, indeed, that any opinion is so critical in its analysis, so exhaustive in its citation, or so

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