cause against the rule, an affidavit was tendered of the dying declarations of the prosecutor as to the transaction out of which the prosecution for perjury arose; but the court were of opinion that this affidavit could not be read. R. v. Mead, 2 B. & C. 605, 9 E. C. L.; 4 D. & R. 120. So evidence of the dying declarations of the party robbed has been frequently rejected on indictments for robbery. R. v. Lloyd, 4 C. & P. 233, 19 E. C. L.; also by Bayley, J., on the Northern Spring Circuit, 1822, and by Best, J., on the Midland Spring Circuit, 1822; 1 Phill. Ev. 241, 10th ed.

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 by Coltman, J., after consulting Parke, B., to be given of the dying declarations of B.; the ground alleged being "that it was all one transaction." R. v. Baker, 2 Moo. & Rob. 53. But in R. v. Hind, 29 L. J., M. C. 148, a case similar to that of R. v. Hutchinson, supra, Pollock, C. B., said, "The rule we are supposed to adhere to is that laid down in R. v. Mead; there Abbott, C. J., says that the general rule is that evidence of this description is only admissible where the death of the deceased is the subject of the charge, and the circumstances of the death the subject of the dying declaration.1

Dying declarations-the situation of the party who makes them, Dying declarations are only admissible when made by a person who is under the influence of an impression that his dissolution is impending. There must be no hope, not only of ultimate recovery, but of a prolonged continuance of life. If that impression exist in the mind of the sufferer, it will not render the statement inadmissible that death does not in fact take place till some time afterwards.2

In order to judge whether or not such is the state of the mind of the person in question, the whole of the circumstances must be looked at. It may be as well shortly to state in chronological order some of the cases in which the statements have been admitted or rejected; premising, however, that it is by no means suggested that they can become precise precedents for any future cases that may arise; it being impossible to bring before the mind by a verbal relation, however minute, many circumstances which take place at a trial by which the mind of the presiding judge would be influenced. Without such precaution a perusal of the reports of these cases, and still more so of the

'See the Texan Code on this subject. Krebbs v. State, 3 Tex. App. 348; Wright v. State, 41 Tex. 246; Walker v. State, 52 Ala. 192; State v. Bohan, 15 Kan. 407; Brown v. Commonwealth, 73 Pa. St. 321; Crookham v. State, 5 W. Va. 510. Declarations as to previous threats are inadmissible. State v. Wood, 53 Vt. 560. The declarations can only be respecting the cause of death. State v. Garrand, 5 Oreg. 216.

? May v. State, 55 Ala. 39; Edmonson v. State, 41 Tex. 496; People v. Ah Dat, 49 Cal. 652; Johnson v. State, 50 Ala. 456; Faire v. State, 58 Ala. 74; State v. Garrand, 5 Oreg. 216; State v. Draper, 65 Mo. 335. Dying declarations are admissible when made under a sense of impending dissolution though declarant may never have expressed the conviction. Wills v. State, 74 Ala. 21. Declarations made at a time when declarant believed he would recover, but afterwards reaffirmed when he perceived that he would die are admissible. Mockabee v. Commonwealth, 78 Ky. 380; State v. McEvoy, 9 S. C 208.

abridgment which is here given, might lead to serious error, but with it they will be useful as showing the aspect under which the question has been hitherto viewed.

In R. v. Woodcock, 1 Leach, 503; and R. v. John, 1 East, 357; *35] *1 Leach, 504 (n), this kind of evidence was received under circumstances which would not now be considered sufficient to render it admissible. In the first, the surgeon distinctly stated that he did not think the deceased was aware of her situation; in the second, the deceased had never expressed the slightest apprehension of danger; and in neither case were there there any circumstances which led to a different conclusion. In R. v. Woodcock, no case was reserved by Eyre, C. B., for the opinion of the judges; but in R. v. John, the judges, on a case reserved, held that the evidence was wrongly received. These cases have been frequently misquoted.

In R. v. Christie, Carr. Supp. C. L. 202, the deceased asked his surgeon if the wound was necessarily mortal, and on being told that a recovery was just possible, and that there had been an instance where a person had recovered from such a wound, he replied, "I am satisfied," and after this made a statement; it was held by Abbott, C. J., and Park, J., to be inadmissible. In R. v. Van Butchell, 3 C. & P. 631, 14 E. C. L., the deceased said, "I feel that I have received such an injury in the bowel that I shall never recover;" and, on his doctor trying to cheer him, he said that he felt satisfied he should never recover; Hullock, J., rejected the evidence, saying that a man might receive an injury from which he might think that he should ultimately never recover, but still that would not be sufficient to dispense with an oath. See R. v. Reaney, infra, p. 36. In R. v. Crockett, 4 C. & P. 544, 19 E. C. L., the surgeon said, "I had told the deceased she would not recover, and she was perfectly aware of her danger; I told her I understood she had taken something, and she said she had, and that damned man had poisoned her. I asked her what man, and she said Crockett. She said she hoped I would do what I could for her for the sake of her family. I told her there was no chance of her recovery." Bosanquet, J., thought a degree of hope was shown, and struck out the evidence. In R. v. Hayward, 6 C. & P. 157, 25 E. C. L., Tindal, C. J., observed that "any hope of recovery, however slight, existing in the mind of the deceased at the time of the declaration being made, would undoubtedly render the evidence of such declarations inadmissible." In R. v. Spilsbury, 7 C. & P. 187, 32 E. C. L., Coleridge, J., said, "It is an extremely painful matter for me to decide upon; but when I consider that this species of proof is an anomaly, and contrary to all the rules of evidence, and that, if received, it would have the greatest weight with the jury, I think I ought not to receive the evidence, unless I feel fully convinced that the deceased was in such a

It is necessary for the State to show distinctly that the deceased's opinion was that he would not recover, or the declaration cannot be admitted. Walker v. State, 52 Ala. 192. People v. Taylor, 59 Cal. 640. A reply: "It is hard for me to say," in answer to the question, Have you any hope of recovery? renders a dying declaration inadmissible. People v. Evans, 4 N. Y. Crim. Rep. 218; see People v. Sweney, Id.

state as to render the evidence clearly admissible. It appears from the evidence that the deceased said he thought he should not recover as he was very ill. Now people often make use of expressions of that kind who have no conviction that their death is near approaching. If the deceased in this case had felt that his end was drawing very near, and that he had no hope of recovering, I should expect him to be saying something of his affairs, and of who was to have his property, or giving some directions as to his funeral, or as to where he would be buried, or that he would have used expressions to his widow purporting that they were soon to be separated by death, or that he would have taken leave of his friends and relations in a way that showed he was convinced that his death was at hand. As nothing of this sort appears, I think there is not sufficient proof that he was without any hope of recovery, and that I, therefore, ought to reject the evidence." In R. v. Perkins, 9 C. & P. 395, 38 E. C. L.; 2 Moo. C. C. 135, a boy between *ten and eleven years of age was severely wounded by a gun loaded with shot, and died the next morning. On the evening [*36 of the day upon which he was wounded, he was seen by two surgeons. One of them, who was then of opinion that he could not survive many days, said to him, "My good boy, you must know you are now laboring under a severe injury, from which, in all probability, you will not recover, and the effects of it will most likely kill you." The other surgeon told him, "You may recover; it is impossible for me to say, but I don't think it likely that you will be alive by the morning.' The boy made no reply, but his countenance changed and he appeared distressed. From questions put to him, he seemed fully aware that he would be punished hereafter if he said what was untrue. He then made a statement to the surgeons. All the judges, except Bosanquet, Patteson, Coleridge, JJ., thought the statements made under the apprehension and expectation of immediate death. In R. v. Megson, 9 C. & P. 413, 38 E. C. L., two days before the death of the deceased, the surgeon told her she was in a very precarious state. On the following day, being much worse, she said to him that she had been in hopes of getting better, but as she was getting worse, she thought it her duty to mention what had taken place. She then proceeded to make a statement. Rolfe, B., held that this statement was not admissible, as it did not sufficiently appear that, at the time of making it, the deceased was without hope of recovery. In R. v. Howell, 1 Den. C. C. 1, the deceased had received a gunshot wound, and repeatedly expressed his conviction that he was mortally wounded. He was a Roman Catholic, and an offer was made to fetch a priest, which he declined. This was insisted on as showing either that the deceased had no sense of religion, or that he did not expect immediate death; but the judges, upon a case reserved, were unanimously of opinion that the evidence was properly received. In R. v. Reaney, Dears. & B. C. C. 151, the prisoner, eleven days before his death, signed a statement concluding with the words, "I have made this statement believing I shall not recover." On the same day he said, "I have seen the surgeon to-day, and he has given me some little hope that I

am better, but I do not myself think that I shall ultimately recover." The evidence was received by Willes, J., the point being reserved for the consideration of the Court of Criminal Appeal. All the judges present (Pollock, C. B., Wightman and Willes, JJ., Martin and Watson, BB.) were of opinion that the evidence was properly received. Much reliance was placed by the counsel for the prisoner on the word " ultimately," but Pollock, C. B., said, "No doubt, in order to render the statement admissible in evidence as a dying declaration, it is necessary that the person who makes it should be under an apprehension of death, but there is no case to show that such apprehension must be of death in a certain number of hours or days. The question turns rather upon the state of the person's mind at the time of making the declaration, than upon the interval between the declaration and the death." Wightman, J., said that the statement must be made under an impression "that death must in a comparatively short lapse of time ensue." Martin, B., thought the question one for the judges at the trial exclusively, and not for the Court of Appeal, but that opinion stands alone. The case is also reported in 26 L. J., M. C. 143, and more fully in 7 Cox, Cr. Ca. 209, and there are some important discrepancies between the reports, but on the whole there does not seem to be any alteration of the law, *37] *as it previously stood, arising out of this case. Willes, J., in both the two last-mentioned reports, is said to have expressed his opinion that the deceased could not, consistently with the expression he used, have supposed that he was about to linger a long time. There must be, said Lush, "a settled hopeless expectation of immediate death." R. v. Osman, 15 Cox, C. C. 1. Erle, C. J., refused to infer from the nature of the wound alone (a gun-shot through the body), that a man must have known as soon as he had received it that he was about to die. R. v. Cleary, 2 F. & F. 851. It would seem, however, that in some circumstances it may be conceived possible to draw such an inference. R. v. Morgan, 14 Cox, C. C. 337; R. v. Bedingfield, 14 Cox, C. C. 341. In R. v. Pickersgill, Leeds Summer Assizes, 1869; the deceased, who was suffering from the effects of poison and died the same night, said: "I am getting worse. I am going to die." The doctor asked her if she thought she should get better, and she said, "No, I shall die." Cleasby, B., after consulting Brett, J., said the "evidence satisfied them that the woman was in a dying state, and that she believed it. When she said she was going to die, she meant that death was imminent." In R. v. Bernadotti, 11 Cox, C. C. 316, where the deceased had received a knife-stab in the neck, and the bleeding having been stopped, had re-commenced, so that his life was in danger, though not in immediate danger, and a magistrate was sent for, the deceased said, "Be quick or I shall die," just before making the declaration. Brett, J., after consulting Lush, J., admitted the deposition. See also R. v. Jenkins, L. R. 1 C. C. R. 187; 38 L. J., M. C. 82. Where a woman who had received severe injuries was standing at a neighbor's door fainting and apparently dying, and she said, "I'm dying; look to my children," and she died in the course of

the night, Hawkins, J., after consulting Baggallay, L. J., admitted her dying declaration. R. v. Goddard, 15 Cox, C. C. 7.

The question is, what was the belief of the person making the declaration at the time of making it, and it is immaterial that such person afterwards took a more hopeful view of his condition. R. v. Hubbard, 14 Cox, C. C. 565.

Interval of time between the declaration and death. With respect to the interval of time which may have elapsed between the uttering of the dying declarations and the moment of death, it is clear that, if the impression exists in the mind of the declarant that dissolution is shortly impending, it will not make any difference that death does not in fact take place until some time afterwards; 1 Phill. Ev. 245, 10th ed.; 3 Russ. on Cri. 556, 5th ed.; nor does there appear to be any case in which the evidence has been rejected on this ground. In most of the reported cases, however, the statements have been made within a few days of death actually taking place, and in most cases within a few hours. In the case of R. v. Bernadotti, however (cited supra), the deceased did not die until three weeks after making the declaration.1

Dying declarations-admissibility of, question for judge. It is scarcely necessary to say that the opinion expressed by Eyre, C. B., in R. v. Woodcock, Leach, 503, that the admissibility of a dying declaration is in some degree a question for the jury, is erroneous. It is for the judge alone.2

*Dying declarations—when reduced into writing. When

a dying declaration is taken formally by a magistrate and re- [*38

duced into writing, although perhaps more authentic, it is of no value as a deposition unless made in the presence of the prisoner and accompanied by the proper formalities for taking depositions. It has been

'The interval of five or six days between the declarations and the death of the party is not of itself sufficient to exclude them. State v. Center, 5 Vt. 378. Declarations made by a deceased person when he believed that he should not recover may be admitted in evidence, although he lived seventeen days after making them. Commonwealth v. Cooper, 5 Allen, 495. See also, State v. Moody, 2 Hayw. 31; State v. Poll, 1 Hawke, 442; Montgomery v. State, 11 O. 424; State v. Tilghman, 11 Ired. 513. S. Swisher v. Commonwealth, 26 Grat. (Va.) 963; Dumas v. State, 65 Ga. 471. Declarations made some days after a person is shot, who does not die, are not part of the res gesta. Green v. State, 74 Ga. 373.

* Whether declarations made in extremis are competent evidence is a question for the court and not the jury. State v. Burns, 33 Mo. 483. S. State v. Cantieny, 34 Minn. 1. But their weight and credibility when admitted are wholly for the jury. Campbell v. State, 38 Ark. 498. The court is to decide as to the admissibility of the declarations. It is error to admit them without a full investigation of the circumstances. Owens v. State, 59 Miss. 547. When the court is satisfied of their admissibility, they must be received and the jury must consider their weight with the other evidence. Kilgore v. State, 74 Ala. 1; Battle v. State, 74 Ga. 101. Where they have been admitted without objection, and subsequently evidence of the insanity of the deceased has been introduced, it is not error for the court to leave the question of sanity to the jury. Bolin v. State, 9 Lea, (Tenn.) 516.