logical in its conclusions. Any discussion of this subject which omits a careful consideration of this case, must be regarded as grossly imperfect. The principal opinion was delivered by Mr. Justice Elliott. It is a very ingenious argument in favor of the prevailing view. But while perfectly aware that my function as a text-writer will not tolerate the least attempt to make a law, I submit the dissenting opinion of this exceedingly able court contains the statement of the better view both upon principle and authority.

§339. Narratives of Past Occurrences are Inadmissible.The decision in People v. Fong Ah Sing (Cal.) 5 Crim. L. Mag. 64, is that it is improper to prevent narratives of previous occurrences to be given in a dying declaration. What was there said by the court: "Dying declarations are restricted to the act of killing and to the circumstances immediately attending it, and forming a part of the res gesta. When they relate to former and ⚫ distinct transactions, they do not come within the principle or necessity on which such declarations are received." 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, was declared and approved. Montgomery v. State, 80 Ind. 338; Binns v. State, 46 Ind. 311. 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. Sylvester v. State, 71 Ala. 17; State v. Johnson, 76 Mo. 121; Lister v. State, 1 Tex. App. 739; Boyle v. State, 105 Ind. 469, 55 Am. Rep. 218.

340. Impeaching Character of Declarant.-The eminence of the late Dr. Wharton in the entire domain of criminal law, practice and evidence has been cordially acknowledged and by none with a deeper feeling of obligation than the present writer; but at section 773 of his well known treatise on the Law of Homicide I find the following: "It seems that evidence is admissible, on the part of the defense, to impeach the character of the deceased for truth, he standing on the same footing as a witness called into court and then examined; and in one case, where the dying declarations of the deceased were admitted to show that the defendant with intent to produce on her an abortion, had administered to her oil of tansy, which was the cause of her death, the defendant was allowed to show that the deceased was con

sidered a woman of loose character and light reputation. So it may be shown that the declarant was insane, or was an unbeliever, or was in the constant habit of making mistakes as to the identity of others." Nesbit v. State, 43 Ga. 238; Donnelly v. State, 26 N. J. L. 496; People v. Knapp, 1 Edm. Sel. Cas. 177; Carter v. People, 2 Hill, 317; Com. v. Cooper, 5 Allen, 495, 81 Am. Dec. 762.

If this be established law, it seems monstrous perversion of natural justice. It is not our province to quarrel with the courts; but there is something inhuman in the theory that a person who has been foully murdered, and who in the solemnities of a dying state narrates the circumstances of the assault that must result in death should have his character for truth and veracity impeached by those who from motives of malignity or self interest have something to gain through the smearing of his reputation. After the grave has inexorably interposed a bar to all challenge or contradiction-to any attempt to show previous malice, enmity or hate for a court of justice to allow irresponsible and unfriendly criticism to frustrate the demands of justice, is an attitude of hostility toward every instinct of right and impartiality. Such a rule of evidence, if tolerated and indulged, can only result in the utter miscarriage of justice, and the entire immunity of that dangerous criminal class who have graduated from elementary crime, and through all the gradations of bestial criminality have finally reached the climacteric infamy of murder.

§ 341. Illustrations of Extreme Rulings.-Upon this topic we find an instructive reading from the opinion of Chief Justice Shaw, in Com. v. Casey, 11 Cush. 417, 59 Am. Dec. 150. The prosecution was for murder. The evidence was introduced for the purpose of fastening the crime upon a certain person. The victim was unable to articulate; but was asked to squeeze the hand of her interrogator if it was the defendant who made the murderous assault. The victim thereupon took her hand from under the bed-clothes, seized the hand of her questioner, and squeezed it for about half a minute. At two other times she was questioned in the same way and responded in like manner. This evidence was admitted against the objection of the defendant. Commenting upon the admissibility, his honor says:

"We appreciate the importance of the question offered for our decision. Where a person has been injured in such a way that

his testimony cannot be had in the customary way, the usual and ordinary rules of evidence must from the necessity of the case be departed from. The point first to be established is, that the person whose dying declarations are sought to be admitted was conscious that he was near his end at the time of making them; for this is supposed to create a solemnity equivalent to an oath. If this fact be satisfactorily established, and if the declarations are made freely and voluntarily, and without coercion they may be admitted as competent evidence:

A New York court of oyer and terminer has held with doubtful propriety that dying declarations should not be ignored in any case, but on the contrary should be admitted even where there is a bare possibility of the declarant's recovery. People v. Anderson, 2 Wheel. Crim. Cas. 398. Mr. Wharton says such a relaxation of the rule is perilous; and though we have no right to rule out such evidence because we conjecture that the deceased may have at certain moments nourished a transient hope, yet, so far as the construction of the deceased's own utterances are concerned, it is best to take the rule without qualification, and to hold that the expression of a hope excludes. Jackson v. Com. 19 Gratt. 656; State v. Moody, 3 N. C. 31, 2 Am. Dec. 616; Whart. Hom. § 754.

The same distinguished author in a subsequent section employs the following language: "If it be shown that the declarations were uttered by the dying man, to be connected with and qualified by other statements and with them to form an entire complete narrative, and before the purposed disclosure was fully made, they had been interrupted and the narrative left unfinished; such partial declarations, it is said, would not be competent evidence. But if it appear that the deceased stated all that he desired to say, the fact that the narrative of what occurred is not complete does not render the declaration incompetent." Vass v. Com. 3 Leigh, 786, 24 Am. Dec. 695; State v. Nettlebush, 20 Iowa, 257; State v. Patterson, 45 Vt. 308, 12 Am. Rep. 200; Whart. Hom. $ 770.

One of the most important criminal causes ever tried in the state of New Jersey is that of Donnelly v. State, 26 N. J. L. 463. The opinion concurred in by the full bench was written by the distinguished Chief Justice Green; and affords a singularly logical presentation of this entire subject of dying declarations. The commonwealth was represented by the attorney general assisted

by Joel Parker; and among the counsel for the prisoner were Messrs. Bradley, Pennington and Scott. The case was decided in 1857 and has received the repeated indorsement of the American judiciary as embodying sound principles of law relating to the admissibility of evidence. The main object of the following extended extract from the opinion in that case, is to show the extreme anxiety of our courts in the effort to detect and punish a hideous crime to admit every species of evidence that sustains any legitimate affinities to the allegations of the indictment. In the case referred to, the court doubtless went to the extreme limit of prudence in inferring the consciousness on the part of the declarant of impending death, in order to admit the statements made in evidence against the accused. We have already adverted to the very liberal position of New York oyer and terminer, and the Donnelly case is even more advanced as evincing the deliberate purpose of the court to admit any grade of evidence that can assist in even a slight degree in establishing the motive, manner and perpetrator of a crime. The opinion of the Donnelly case referred to proceeds as follows:

"It is suggested, that whether the person making the declaration was or was not under a sense of impending death, was a mere question of fact, to be decided by the judge; and that, being a mere question of fact, it is not the subject-matter of a writ of error, and cannot be drawn in question in this court. The answer to the objection is, that the decision involves a mingled question of law and of fact. What constitutes a dying declaration is a question of law. Whether, therefore, the circumstances shown. upon the trial evince that the statement offered is what the law denominates a dying declaration, is a question of law, and the proper subject of review upon a writ of error. In dealing with this question, the court here will give to each fact sworn to its appropriate effect, without questioning the credibility of the tes. timony or the truth of the facts put in evidence. Upon the mere credibility of the testimony, upon this preliminary issue, the decision of the court below must be regarded as final.

"Evidence had been offered tending to show that the deceased died from a wound inflicted with a sharp instrument on the left side of the neck or throat, six inches in depth, perforating the æsophagus, severing the jugular vein and a branch of the carotid artery, and inflicting other internal injury; that the wound in its

nature was very dangerous, and the possibility of recovery from it very doubtful; that in point of fact the deceased died from the effect of the wound soon after its infliction; that after receiving the injury, he had raised the cry of murder, and had followed the murderer through an adjoining room into the hall, bleeding very profusely; that a few steps from the door of the room, he had fallen, and had there lost a large quantity of blood; that he thence entered the room adjoining his own and had laid himself upon the bed, from which he never rose; that Mr. Smith, the first person who entered the room, found him bleeding very profusely. The wounded man threw up his hands, called the witness by name, and repeated that he had been stabbed; that he had been murdered; that his throat had been cut. The witness then stated 'I asked him who by; he said, Donnelly, your book-keeper.' This is one of the declarations objected to. Upon this evidence alone, excluding all the testimony regarding the condition of the deceased from this moment till the time of his death, was not the court below justified in admitting this statement in evidence as a dying declaration? The facts before the court were, that the deceased had received a most dangerous wound, from which recovery was very improbable, and from which in fact the injured man died within an hour. That the statement was voluntarily made, immediately after the injury, to the first person that he spoke to while lying upon his bed weakened by loss of blood; that in fact he was at the moment bleeding to death. Was not that statement made under a sense of impending death? Is there any evidence to warrant the belief, that at that time or at any time afterwards, he had the least expectation or hope of recovery. It is not necessary that the party injured should state, at the time of making the declarations, that they were made under a sense of impending death. It is enough, if it satisfactorily appears in any mode, that they were made under that sanction. It may be directly proved by the express language of the declarant, but it may also be inferred from his evident danger, or the opinion of his attendants stated to him, or from his conduct, or other circumstances of the case, all of which are resorted to in order to ascertain the state of the declarant's mind at the time of making the declarations. 1 Greenl. Ev. § 158; 1 East, P. C. 358; Rex v. Woodcock, 1 Leach, C. C. 500; Hill v. Com. 2 Gratt. 594; State v. Freeman, 1 Speer, L. 57.