admitted that homicide may not go unpunished, where the death of the declarant is the subject-matter of a criminal trial.68

In such a case, if no third person were present at the instant of the homicide (and this, it is well known, is very frequently the case), it would be impossible to procure direct evidence upon the main fact in issue, as the mouth of the accused is closed by the policy of our law unless he shall see fit to testify for himself. But the fact that the evidence is received from the necessity of the matter furnishes no basis for its exclusion where other evidence of the cause and the attendant circumstances of the death is to be had. This is so even if the other proof is uncontradicted or conclusive.“9 And dying declarations are not admissible only in cases where the evidence is wholly circumstantial.

§ 108. Opinions contained in dying declarations are not admissible. -The recitals in dying declarations, which are admissible in evidence, include recitals of fact which might have been given by the declarant if living and appearing as a witness at the trial, and may include statements of facts occurring or existing coincident with the commission of the homicide, and tending to establish every essential element of the crime. The declarations should not contain matter which would be excluded if the declarant were a witness.70 Dying declarations are not admissible if stating opinions only. He is beyond the reach of cross-examination to ascertain the grounds upon which his opinion may be based, and other reasons may exist which would exclude his opinion if he were a living witness.

30 Mich. 431; People v. Taylor, 59 Cal. 640, 645; Gardner v. State, 55 Fla. 25, 45 So. 1028; George v. State, 145 Ala. 41, 40 So. 961, 117 Am. St. 17; Connell v. State, 46 Tex. Cr. App. 259, 81 S. W. 746.

Dying declarations, as a general rule, must consist of facts, and not opinions, 86 Am. St. 649, 652, but there are circumstances under which opinion may be shown by such a declaration, 86 Am. St. 649, 652.

Opinions in dying declarations are inadmissible. It is indispensable that the dying declaration should consist solely of facts, and not of conclusions, mental impressions or opinions."1

Hence it is proper to reject from evidence a statement of the deceased to a witness that he (the witness) knew how the shooting was done, that it was uncalled for and that the trouble was between the deceased and the witness.72 Thus, a dying statement that the deceased thought or believed the accused had shot him, or that he expected the accused would try to kill him," is inadmissible where the deceased did not see his assailant, but based his declaration wholly upon threats which had been made by the accused. But opinions in dying declarations are admissible whenever they would be received, if the declarant were himself a witness.75 So a declaration that as the accused arose he was reaching in his pocket for his revolver is not a mere statement of a conclusion, but is descriptive of the act of accused in getting his revolver from his pocket, which he did. And if an expression of an opinion or of a conclusion or of some belief not based on any fact within the knowledge of declarant, which is embraced in the declaration, can be separated from it, the court may do this and then strike out

76

"United States v. Veitch, 1 Cranch C. C. (U. S.) 115, 28 Fed. Cas. 16614; People v. Shaw, 63 N. Y. 36; State v. Mace, 118 N. Car. 1244, 24 S. E. 798; Mose v. State, 35 Ala. 421; State v. Williams, 67 N. Car. 12; State v. Elkins, 101 Mo. 344, 351, 14 S. W. 116; State v. Black, 42 La. Ann. 861, 8 So. 594; Moeck v. People, 100 Ill. 242, 245, 39 Am. 38; Matherly v. Commonwealth (Ky.), 19 S. W. 977, 978, 14 Ky. L. 182; Berry v. State (Tex. 1897), 38 S. W. 1038; Baker v. State, 85 Ark. 300, 107 S. W. 983; Johnson v. Commonwealth (Ky.), 107 S. W. 768, 32 Ky. L. 1117. An objection to the declaration because containing opinions must be promptly made. State v. O'Brien, 81 Iowa 88, 46 N. W. 752.

72 Sanford v. State, 143 Ala. 78, 39 So. 370.

7 Warren v. State, 9 Tex. App. 619, 35 Am. 745; Whitley v. State, 38 Ga. 50; People v. Wasson, 65 Cal. 538, 539, 4 Pac. 555.

74

People v. Shaw, 63 N. Y. 36, 38. 75 Brotherton v. People, 75 N. Y. 159, 165; Montgomery v. State, 80 Ind. 338, 346, 41 Am. 815; Boyle v. State, 105 Ind. 469, 472, 5 N. E. 203, 55 Am. 218; Hall v. State, 132 Ind. 317, 323, 31 N. E. 536; State v. Foot You, 24 Ore. 61, 32 Pac. 1031, 33 Pac. 537; Cleveland V. Commonwealth (Ky.), 101 S. W. 931, 31 Ky. L. 115. See also, Underhill on Evidence, § 186. 76 State v. Brown, 188 Mo. 451, 87 S. W. 519.

80

what is inadmissible and receive what is admissible." And a statement that the killing was intentional,78 or without reason or provocation,7, or for nothing, is not such an expression of an opinion as will exclude a dying declaration. A dying declaration in these words, "Oh, Lordy! Willie shot me for nothing, without any cause," was not objectionable as a statement of a conclusion rather than a fact.81

This is the general rule and has been sustained by the majority of the cases. But in Kentucky it has been held that a declaration which either expressly or by implication states that the accused killed the deceased without cause is not competent. In that state it has been held that the statement of the decedent that the trouble "came up over" his daughters, and that there was some talk about the daughters which displeased the decedent and that the accused then shot the decedent without cause is not admissible.82

§ 109. Must refer to the res gestae of the homicide.—The declaration is admissible only so far as it points directly to the facts constituting the res gesta of the homicide; that is to say, to the act of killing and to the circumstances immediately attendant thereon.$

A dying statement showing why the deceased went to the place where the homicide was committed, or that, after the crime, he

77

Jackson v. State (Miss. 1908), 47 So. 502.

80 Lipscomb v. State, 76 Miss. 223, 25 So. 158.

7 State v. Nettlebush, 20 Iowa 257.

79

State v. Black, 42 La. Ann. 861, 8 So. 594; Powers v. State, 74 Miss. 777, 21 So. 657; Wroe v. State, 20 Ohio St. 460; House v. State (Miss. 1909), 48 So. 3; Lockhart v. State, 53 Tex. Cr. App. 589, 111 S. W. 1024. Contra, Jones v. Commonwealth (Ky.), 46 S. W. 217, 20 Ky. L. 355. A statement that accused shot him for nothing and because "of the crazy fool that was in him, or because he was just a crazy fool," were inadmissible. Johnson v. Commonwealth (Ky.), 107 S. W. 768, 32 Ky. L. 1117; Craft v. State (Tex. Civ. App., 1909), 122 S. W. 547.

81 McMillan v. State, 128 Ga. 25, 57 S. E. 309.

82

Wagner v. Commonwealth (Ky.), 108 S. W. 318, 32 Ky. L. 1185.

83 Starr v. Commonwealth, 97 Ky. 193, 30 S. W. 397, 16 Ky. L. 843; State v. Johnson, 17 Ala. 618; State v. Johnson, 26 S. Car. 152, 153, 1 S. E. 510; Wakefield v. State, 50 Tex. Cr. App. 124, 94 S. W. 1046; State v. Harris, 112 La. 937, 36 So. 810; State v. Doris (Ore. 1908), 94 Pac. 44 See comprehensive note in 86 Am. St. 647, 649. The death of declarant and not of another should be under inquiry to render declaration admissible, 86 Am. St. 665, 666; State v. Kelleher (Mo., 1909), 123 S. W. 551.

87

84

stated to a bystander that he was unarmed, or stating actions of the accused or of the deceased prior to the circumstances directly involved in the homicide as the possible motive for it, is not admissible.85 Thus a statement that enmity always existed between the prisoner and the declarant, or that they had always been friends, or describing previous altercations between them," or detailing threats made by the accused against the deceased long prior to the crime,so has been rejected. But a dying declaration describing threats is admissible if the threats are a part of the res gesta of the homicide," and generally the fact that a dying declaration, whether written or oral, is partly inadmissible, because it contains opinions or other irrelevant matter, does not exclude the whole of it if the part which is inadmissible can be separated from that which is not.91

§ 110. Mode of proof-Credibility, relevancy and weight.—The determination whether a statement should be received as a dying declaration is for the court upon all the facts.92 A prima facie case

6 State v. Shelton, 2 Jones (N. Car.) 360, 64 Am. Dec. 587; Jones v. Commonwealth (Ky.), 46 S. W. 217, 20 Ky. L. 355; Foley v. State, II Wyo. 464, 72 Pac. 627.

North v. People, 139 Ill. 81, 28 N. E. 966; State v. Wood, 53 Vt. 560; State v. Draper, 65 Mo. 335, 241, 27 Am. 287; Merrill v. State, 58 Miss. 65, 67: Hackett v. People, 54 Barb. (N. Y.) 370.

*State v. Wood, 53 Vt. 560, 565.

State v. Bridgham (Wash. 1908),

97 Pac. 1096. The court should charge that the declaration is admitted only to prove the fact and manner of the homicide and should direct the jury to disregard parts of it referring to other matters.

2 State v. Baldwin, 79 Iowa 714, 45 N. W. 297, 299; People v. Kraft, 148 N. Y. 631, 43 N. E. 80; Whitaker v. State, 79 Ga. 87, 92, 3 S. E. 403; Kehoe v. Commonwealth, 85 Pa. St. 127; Evans v. State, 58 Ark. 47, 22 S. W. 1026, 1027; People v. Del Vermo, 192 N. Y. 470, 85 N. E. 690; State v. Doris (Ore., 1908), 94 Pac. 44; Bateson v. State, 46 Tex. Cr. App. 34, 80 S. W. 88; Park v. State, 126 Ga. 575, 55 S. E. 489; State v. Crone, 209 Mo. 316, 108 S. W. 555; Sims v. State, 139 Ala. 74, 36 So. 138, 101 Am. St. 17; State v. Zorn, 202 Mo. 12, 100 S. W. 591; Sailsberry v. Commonwealth (Ky.), 107 S. W. 774, 32 Ky. L. 1085; Tarver v. State, 137 Ala. 29, 34 So.

93

is sufficient to authorize a submission of dying declarations to the jury. But this prima facie proof must be strong, and unless the court is firmly convinced that the declaration was made in actual expectation of immediate death it should not be received. To avoid creating prejudice against the accused in the minds of the jurors, it is advisable, as a matter of practice, to take the preliminary proof out of their presence and hearing, though evidence may be received in the presence of the jurors, they being instructed that it must be dismissed from their consideration if the dying declaration is rejected.95

627; Coyle v. Commonwealth (Ky.), 93 S. W. 584, 29 Ky. L. 340; Bilton v. Territory (Okla., 1909), 99 Pac. 163; State v. Gallman, 79 S. Car. 229, 60 S. E. 682; State v. Franklin, 80 S. Car. 332, 60 S. E. 953; Brennan v. People, 37 Colo. 256, 86 Pac. 79.

94

What admissible as dying declarations and in what cases, 86 Am. St. 637, 668; in prosecution for abortion, 86 Am. St. 666, 667; in prosecution for burglary, 2 Am. St. 398; in prosecution for homicide, 86 Am. St. 665, 666, 63 L. R. A. 916; in prosecution

* State v. Fuller (Ore., 1908), 96 for seduction, 86 Am. St. 667, 668. Pac. 456.

Grounds of admissibility of dying declarations-note, 86 Am. St. 638, 639, 56 L. R. A. 353; character of to be admissible, 86 Am. St. 647, 654; religious belief of declarant immaterial, 86 Am. St. 641, 642; but such fact may affect weight of testimony, 86 Am. St. 642; declarant must have been sane, 86 Am. St. 640; whether actual danger of death essential to admissibility, 86 Am. St. 654, 655; right of jury to determine existence facts essential to admissibility, 16 L. R. A. (N. S.) 660; whose declarations admissible, 86 Am. St. 640; competency of declarant as witness, 86 Am. St. 640, 642; intention or motive cannot generally be shown by, 86 Am. St. 652, 654; when intention or motive may be shown by, 86 Am. St. 652, 654; written dying declarations admissible, 86 Am. St. 642, 644; declarations of husband or wife, when admissible against the other, 86 Am. St. 641.

Doles v. State, 97 Ind. 555, 559; State v. Furney, 41 Kan. 115, 13 Am. St. 262; Swisher v. Commonwealth, 26 Gratt. (Va.) 963, 21 Am. 330; State v. Crone, 209 Mo. 316, 108 S. W. 555.

95 Price v. State, 72 Ga. 441, 555; People v. Smith, 104 N. Y. 491, 493, 498, 10 N. E. 873, 58 Am. 537n; Johnson v. State, 47 Ala. 9; Doles v. State, 97 Ind. 555, 559, 560. Dying declarations are admissible from the necessities of the case, but they should be received with caution, for the reason that the declarant has not been administered an oath, and an opportunity for cross-examination has not been afforded defendant, and that the declarant might be influenced against defendant; and for the further reason that the physical condition of the declarant might render the statement more or less unreliable. Circumstances surrounding the declaration should be weighed the same as those surrounding other evidence”—