In order to make such entries evidence, it must appear that the person who made them is dead; it is not sufficient that he is abroad, and is not likely to return. Cooper v. Marsden, 1 Esp. N. P. 1. The prisoner was indicted for the murder of a constable. The constable, in the course of his duty, had made a verbal statement in the nature of a report to his superior officer (an inspector of police), which was to the effect, that he intended to watch the prisoner's movements that night. Lush, J., after consultation with Mellor, J., admitted the statement. R. v. Buckley, 13 Cox, C. C. 293.

Statements having reference to the health or sufferings of the person who makes them. Upon this exception there is scarcely any direct authority. In R. v. Blandy, 15 How. St. Tr. 1135, the prisoner *was charged with having poisoned her father, and the *32] doctor was allowed, without objection, to state all that the deceased said in answer to inquiries respecting his health; but not only was he allowed to do this, but he also went on, still without objection, to state the answers of the deceased to inquiries put by him respecting the person who administered the poison which the deceased had taken, though no evidence was given, which showed that the deceased was then in articulo mortis; this case, therefore, could not now be considered an authority for any purpose. In Aveson v. Lord Kinnaird, 6 East, 188, the facts were somewhat peculiar. The action was brought on a policy of insurance, effected by a husband on the life of his wife. The defence was that the wife was a hard drinker, and was in illhealth at the time the policy was effected. The surgeon who had examined the woman on behalf of the office was called by the plaintiff, and he swore positively to his belief of her good health at the time, and said that he formed his opinion principally from the satisfactory answers which she gave to his inquiries. A witness was then called for the defence, who stated that she saw the deceased a day or two after the surgeon had examined her; that she then complained of being unwell; and said that she was unwell when she went to see the surgeon, with other similar statements. A verdict was found for the defendant, and a rule for a new trial obtained by the plaintiff on the ground that evidence of these statements ought not to have been received, which rule was discharged. It was assumed by all the judges, that what was said by the deceased to the surgeon was evidence of her state of health at the time; and they all thought that this evidence having been produced by the plaintiff, it was open to the defendant to rebut it by showing that she had made different statements on another occasion upon the same subject. In the Gardiner Peerage case, reported by LeMarchant, a great many doctors were examined on the part of the claimant as to their experience of cases of protracted gestation. In order to ascertain the circumstances of these by one, then an agent of the company, and still living, but absent from the State, are not competent evidence of the facts therein set forth, upon the trial of a third person for crime. State v. Thomas, 64 N. C. 74. S.

But see Rogers v. State, 11 Tex. App. 608; Rizer v. Callen, 27 Kan. 339; State v. Masters, 26 La., An. 268.

cases, it was necessary to inquire into the data upon which the witnesses had formed their calculations, but these depended on the answers of women to certain medical inquiries involving facts which had taken place some months previously. Evidence of what these answers were was repeatedly objected to, and finally rejected by the committee upon the advice of Lords Giffard and Redesdale. In R. v. Johnson, 2 C. & K. 354, 61 E. C. L., the prisoner was charged with having murdered her husband, and in order to prove the state of health of the deceased prior to the day of his death, a witness was called who had seen him a day or two before that time; and on this witness being asked in what state of health the deceased appeared to be when he last saw him, he began to state a conversation which had then taken place between the deceased and himself on this subject. This was objected to on behalf of the prisoner, but Alderson, B., said that he thought that what the deceased person said to the witness was reasonable evidence to prove his state of health at the time.

The result of the cases seems to be this; that, if it becomes necessary to inquire into the state of health at a particular time of a person who is deceased, a witness may detail what the deceased person has himself said on that subject at that time; and this whether he be a medical man or not. But perhaps a medical man might go further, and, even in case of a person who is still living, state the answers to *inquiries made by him having reference to such person's health; [*33 this evidence is frequently given in cases of assault, in order to prove what the person assaulted has suffered. See per Lawrence, J., in Aveson v. Lord Kinnaird, 6 East, 198.1

Dying declarations. Evidence of this kind, which is peculiar to the case of homicide, has been considered by some to be admissible from necessity, since it often happens that there is no third person present to be an eye-witness to the fact, and the usual witness in other felonies, viz., the party injured himself, is got rid of. 1 East, P. C. 353. But it is said by Eyre, C. B., that the general principle upon which evidence of this kind is admitted is, that it is of declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone, when every motive to falsehood is silenced, and the mind is induced by the most powerful consideration 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 an oath administered in court. R. v. Woodcock, 1 Leach, 502; R. v. Bernadotti, 11 Cox, C. C. 316. Probably it is the concurrence of both these reasons which led to the admission of this species of evidence.

1A sick person's representation as to the true nature, symptoms, and effect of his malady, made while he is suffering under it, are original evidence to whomsoever they may be made; but are entitled to greater weight if made to a medical attendant. Perkins v. Concord Railroad, 44 N. H. 223; Stone v. Watson, Shep. Sel. Cas. 236, S. C. 37 Ala. 279. [But see State v. Gedicke, 43 N. J. L. 86.] A narration by a patient to his physician of the cause of injuries received several months previously, is not admissible as evidence of that cause. Chapin v. Marlborough, 9 Gray, 244. S.

But see Smith v. State, 53 Ala. 486; Hays v. State, 40 Md. 633; Morrisey v. Ingham,

111 Mass. 63.

The declaration must have been made by a person who, if alive, would have been a competent witness. Thus, on an indictment for the murder of a girl four years of age, Park, J., refused to hear evidence of her declarations, observing that, however precocious her mind might be, it was impossible that she could have had that idea of a future state which is necessary to make such a declaration admissible. In this decision, Parke, B., concurred. R. v. Pike, 3 C. & P. 598, 14 E. C. L. But when the child is of an intelligent mind, impressed with the nature of an oath, and expecting to die, the declaration is receivable. See R. v. Perkins, 2 Moo. C. C. 135; 9 C. & P. 395, 38 E. C. L., where the child was eleven years old, stated post, p. 35. It is no objection to the evidence that the deceased person was particeps criminis (as a woman who has been killed in attempting to procure abortion). R. v. Tinkler, 1 East, 354. So the statement of the deceased must be such as would be admissible if he were alive and could be examined as a witness; consequently, a declaration upon matters of opinion, as distinguished from matters of fact, will not be receivable. R. v. Sellers, Carr. Supp. Cr. L. 233. Dying declarations in favor of the party charged with the death were admitted by Coleridge, J., in R. v. Scaife, 1 Moo. & R. 551. It is no objection to a dying declaration that it has been elicited by questions put to the deceased. R. v. Fagent, 7 C. & P. 238, 32 E. C. L. See also R. v. Reason, 1 Str. 499; R. v. Woodcock, 1 Leach, 500. In the last case the deceased was examined upon oath by a magistrate, and the examination signed by both. See also R. v. Smith, 1 L. & C. 607. The question, whether a dying declaration is admissible in evidence, is exclusively for the consideration of the court. Per Lord Ellenborough, R. v. Huck, 1 Stark. N. P. 523, 2 E. C. L. See also R. v. John, 1 East, P. C. 357; 1 Lea. 505 (n.). 1 Phill. Ev. 250, 10th ed.2

Dying declarations of the deceased may be received in favor of the defendant. Moore. State, 12 Ala. 764; People v. Knapp, 26 Mich. 112. Contra, Adams v. People, 47 Ill. 376; Moeck v. People, 100 Ill. 242. But they must be made under a sense of impending dissolution. People v. McLaughlin, 44 Cal. 435, following Commonwealth v. Densmore, 12 Allen, 535; People v. McCrea, 32 Cal. 100.

"State v. Ferguson, 2 Hill, (S. C.) 619; Oliver v. State, 17 Ala. 587; McLean v. State, 16 Id. 672. Dying declarations of a person who has been killed, made with regard to the circumstances which caused his death, are to be received with the same degree of credit as the testimony of the deceased would have been had he been examined on oath. Green v. State, 13 Mo. 382. [Ward v. State, 78 Ala. 441.] Contra, see Lambeth v. State, 1 Cush. 322. By the common law, in indictments for murder, the declarations of the deceased, made after the mortal wound, and under the apprehension of death are admissible in evidence. Woodside v. State, 2 How. (Miss.) 655; Campbell v. State, 11 Ga. 353; Nelson v. State, 7 Humph. 542; Smith v. State, 9 Humph. 9; Hill v. Commonwealth, 2 Gratt. 594; Moore r. State, 12 Ala. 764; Commonwealth v. Murray, 2 Ash. 41; Commonwealth v. Williams, Id. 69; Green v. State, 13 Mo. 382; Vass's Case, 3 Leigh, 786; McDaniel v. State, 8 Smed. & M. 401; Anthony v. State, 1 Meigs, 265; Donnelly v. State, 2 Dutch. 463, 601; State v. Scott, 12 La. An. 274; Brakefield . State, 1 Sneed, 215; ilpatrick v. Commonwealth, 7 Cas. 198; State v. Cornish, 5 Harring. 502; Bull's Case, 14 Gratt. 613; Thompson v. State, 24 Ga. 297; McHugh v. State, 31 Ala. 317; Brown v. State, 32 Miss. 433; Commonwealth v. Casey, 11 Cush. 417; Walston v. Commonwealth, 16 B. Mon. 15; Starkey v. People, 17 Ill. 17; State". Dominique, 30 Mo. 585; People v. Lee, 17 Cal. 76; People v. Ybarra, Id. 166; Commonwealth v. Casey, 12 Cush. 246 Burrell v. State, 18 Tex.

Dying declarations-admissible only in cases of homicide, where the circumstances of the death are the subject of the declaration. 713; People v. Glenn, 10 Cal. 32; State v. Nash, 7 Clarke, 347; State v. Terrell, 12 Rich. Law, 321; State v. Gillich, 7 Clarke, 287; Robbins v. State, 8 O. (N. S.) 131; State v. Brunette, 13 La. 45. [Style v. Spencer, 30 La. An. 362; Pierson v. State, 21 Tex. App. 14; Kehoe v. Commonwealth, 85 Pa. St. 127; State v. Johnson, 76 Mo. 121. After the proper foundation is laid for them the defence should move to exclude them from the jury if they are indefinite or not pertinent to the issue. Scott v. People, 63 Ill. 508.] Such evidence is only admissible under a rule of necessity, and constitutes the only case in which evidence is admissible against the accused, without the opportunity of a cross-examination. Nelms v. State, 13 Smed. & M. 500. [Notwithstanding the clause in the Bill of Rights securing to the prisoner the right to meet the witnesses face to face. State v. Dickinson, 41 Wis. 299.] The proof of the deceased's apprehension of death is not confined to his declarations, but the fact may be satisfactorily established by the circumstances of the case. Hill v. Commonwealth, 2 Gratt. 594; McLean v. State, 16 Ala. 672; Commonwealth v. Murray, 2 Ash. 41; Commonwealth v. Williams, Id. 69; People v. Green, 1 Park. C. R. 11; Lewis v. State, 9 Smed. & M. 115; Montgomery v. State, 11 Stanton, 424. [People v. Gray, 61 Cal. 164; Sullivan v. Commonwealth, 93 Pa. St. 284.] In order to make dying declarations admissible in evidence, the deceased must not only be actually in a dying condition, but must believe that he is so. This belief may be inferred from the statements of the party, and also from the nature of the wound and other circumstances. Campbell v. State, 11 Ga. 353; People v. Green, 1 Park. C. R. 11; People v. Grunzig, Id. 299; People v. Knickerbocker, Id. 302; State v. Peace, 1 Jones' Law, 251. If, at the time of the declarations, he was in fact in a condition to make them competent, a hope of recovery at a subsequent time would not render them incompetent. State v. Tilghman, 11 Ired. 513. In order to make the declarations of the deceased evidence, it is not necessary that he should be in articulo mortis. State v. Tilghman, 11 Ired. 513; State v. Poll, 1 Hawks, 442. Declarations made in the last illness, by one who said he should die, but whom the physician had just told he might recover, are not admissible as dying declarations. People v. Robinson, 2 Parker C. R. 235. When a prima facie case has been made out, it is a question of fact for the jury whether or not the declarations were made in immediate prospect of death. Campbell v. State, 11 Ga. 353. [Jackson v. State, 56 Ga. 235.] The only satisfactory principle upon which the dying declarations of a person deceased can be admitted to establish the circumstances of his death, appears to be that they were made at a time when all expectation of recovery was abandoned. Dunn v. State, 2 Ark. 229. [Er parte Nettles, 58 Ala. 268.] The question whether statements offered as dying declarations are admissible as such, is for the court. State v. Howard, 32 Vt. 380. [Commonwealth v. Sullivan, 13 Phila. (Pa.) 410.] The declaration of a person wounded and bleeding that the defendant had stabbed her, made immediately after the occurrence, is competent to be put in evidence after her death, as part of the res geste. Commonwealth v. McPike, 3 Cush. 181. When on trial for murder, the declarations of the deceased have been offered in evidence, and an attempt has been made on the other side to destroy the effect of such declarations, by showing the bad character of the deceased, the State, for the purpose of corroborating the evidence, may prove that the deceased made other declarations to the same purport a few months after he was stricken, though it did not appear that he was then under the apprehension of immediate death. State v. Thomason, 1 Jones' Law, 274. [State v. Blackburn, 80 N. C. 474.] The dying declarations of a party are only admissible on a trial of homicide, when the death of the deceased is the subject of the charge and the circumstances of the subject of them. Lambeth v. State, 23 Miss. 323. The deceased was shot at night by an unknown person; his declaration that the prisoner was the only slave on the place at enmity with him, was not admitted. Moser. State, 35 Ala. 421. Dying declarations must be restricted to the act of killing, and the circumstances immediately attending the act and forming a part of the res gesta. State v. Shelton, 2 Jones' Law, 360. [People v. Olmstead, 30 Mich. 431; Luby v. Commonwealth, 12 Bush, (Ky.) 1. In Texas it has been held that dying declarations of the deceased are competent to prove his name as alleged in the indictment. Lister v. State, 1 Tex. App. 739. See State v. Hamilton, 27 La. An. 400.] On the trial of a man for the murder of his wife, her declarations made in extremis as to the cause of her death, are competent evidence against the prisoner. People v. Green, 1 Den. 614; Moore v. State, 12 Ala. 164. It makes no difference that there are other witnesses by whom the same facts might be shown which are sought to be established

It is a general rule, that dying declarations, though made with a full consciousness of approaching death, are only admissible in evidence *where the death of the deceased is the subject of the charge, and

*34] the circumstances of the death are the subject of the dying dec

larations. Per Abbott, C. J., R. v. Mead, 2 B. & C. 605, 9 E. C.L.; 4 D. & R. 120. Therefore, where a prisoner was indicted for administering savin to a woman pregnant, but not quick with child, with intent to procure abortion, and evidence of the woman's dying declarations was tendered, Bayley, J., rejected it, observing, that although the declarations might relate to the cause of the death, still such declarations were admissible in those cases only where the death of the party was the subject of inquiry. R. v. Hutchinson, 2 B. & C. 608 (n.), 9 E. C. L. A man having been convicted of perjury, a rule for a new trial was obtained, pending which the defendant shot the prosecutor, who died. On showing

by the dying declarations. People v. Green, 1 Parker's C. R. 302. [Dying declarations, when admissible, may always be proved, even though there is abundant evidence without them. Battle v. State, 74 Ga. 101.] The dying declarations of a wounded man as to his belief respecting the intentions of his assailant to injure him, are not competent. McPherson v. State, 22 Ga. 478. [Nor his general expressions of opinion, or his suspicions, Shaw v. People, 5 Thomp. & C. (N. Y.) 439; 3 Cow. 272. But a dying declaration, "A. B. shot me," was held admissible as a statement of fact, though the shot was fired through an auger hole. Walker v. State, 39 Ark. 221. Montgomery v. State, 80 Ind. 338. Roberts v. State, 5 Tex. App. 541.] Dying declarations are restricted to the trial of the identical homicide of the person who makes the declaration. Hudson v. State, 3 Cold. 355; State v. Fitzhugh, 2 Oreg. 227; State v. Wilson, 23 La. An. 558. The dying declarations of the deceased respecting the state of feeling which existed between himself and the prisoner, are not admissible for the prosecution. Ben v. State, Shep. Sel. Cas. 9; 37 Ala. 103. [Reynolds v. State, 68 Ala. 502.] Leading questions may be put to the declarant, and he may even be pressed to answer, subject to the effect of these acts on the value of his testimony. People v. Sanchez, 24 Cal. 17. [Ingram v. State, 67 Ala. 67.] Belief of impending death may be shown circumstantially, without proving express statements of the declarant to that effect. Id. Evidence of dying declarations may be rebutted by evidence of contradictory statements. People v. Lawrence, 21 Cal. 368. [Battle v. State, 74 Ga. 101.] If dying declarations have been admitted to prove the identity of the defendant as the person who committed a crime, evidence is admissible in reply to show that the deceased had met and talked with persons with whom he was well acquainted, mistaking them, at the time, for other persons whom they did not resemble, and that he was in the habit of thus mistaking persons. Commonwealth v. Cooper, 5 Allen, 495. The competency or sufficiency of dying declarations cannot be objected to on the ground that the deceased did not give a complete narration of all that occurred, or might be legitimately supposed to have occurred, if it does not appear but that he said all he desired to say and fully completed his declarations. State v. Nettlebush, 20 Ia. 257. A dying declaration having been admitted in evidence, it is admissible to discredit it by proof that the deceased did not believe in a future state of rewards and punishments. Goodall v. State, 1 Oreg. 333. See generally Commonwealth v. Densmore, 12 Allen, 535; People v. Knapp, 1 Edm. 177; Hatchett r. People, 54 Barb. 370; Nesbit v. State, 43 Ga. 238; State v. Williams, 67 N. C. 12; Wroe v. State, 20 O. St. 460; Dixon v. State, 13 Fla. 636; Barnet v. People, 54 Ill. 325; Commonwealth v. Britton, 1 Camp. 13; Murphy v. People, 37 Ill. 447; Hill v. State, 41 Ga. 484; Duling v. Johnson, 32 Ind. 155; State v. Quick, 15 Rich. (Law) 342; People v. Vernon, 35 Cal. 49. S.

Proof that the deceased is an atheist does not render the dying declarations incompetent. It may be received to impeach the credibility of the declarant. State v. Elliot, 45 Ia. 486. The dying declarations must be those of the murdered, not of a witness since deceased. Poteetee v. State, 9 Baxter (Tenn.) 261.

1 Railing v. Commonwealth, 16 W. N. C. (Pa.) 452; S. C. 1 Pa. Sup. Ct. Dig.