The opinion of the court was delivered by
Beasley, Chief Justice.
Barclay W. Peak was convioted before the Oyer and Terminer of the county of Burlington of the willful murder of Mary Catharine Anderson.
The case is before this court on error, so that the only ■question to which we are at present called upon to respond is whether the proceedings ensuing in a conviction are in con-iormity with the laws of this state. It appears from the bills of exception that the judicial conduct of the trial was in .many respects put in question, but it will be sufficient to dis[214]*214cuss and decide- those objections that were principally relied upon by the counsel of the defendant in their arguments-before us.
The objection first urged was that the court below erred in, overruling the challenge to the array of the panel of jurors,, which was interposed in hehalf of the defendant.
The record shows that sixty persons were duly selected in Burlington county to constitute the general panel of jurors-for the term at which this case was tried, and this challenge stated as its ground “ that the list of the names of the persons selected and drawn by the sheriff of the said county of Burlington to serve as jurymen at the said April Term of said court, and certified by the Court of Common Pleas and duly filed in the clerk’s office, was not a oomplete list of the names of the persons so drawn and selected, but, on the contrary, contained the names of only twelve persons.”
- .But we do not find this objection to be sustained by the facts before us. Upon inspection we think that the entire-sixty names were upon the list that was certified and filed. It would be useless to describe the paper in question; it is-sufficient to say that we do not agree with the argument that, attempted to separate this certified list into detached parts,, but that we regard it as a unit, and in this view it is plainly unobjectionable.
The second objection to the return of the jury was because-it appeared that the sheriff had selected from the general list of sixty names, according to his judgment, the trial list of forty-eight names which had been served upon the prisoner.
This exception is not well founded. It is one of the functions of the sheriff to prepare the list of forty-eight names in-the way he did in this cáse. The course of proceeding is-prescribed in section 72 of the Criminal Procedure act, in, these words, viz.: “ In all cases where any prisoner or derfendant, in or upon any indictment, is or may be by law entitled to peremptory challenges, and to have a copy of the-panel or a list of the jury delivered to him previous to his-trial, it shall be the duty of the sheriff, or other proper officer,. [215]*215to select such panel or list of forty-eight jurors from the general panel or list of jurors at the term at which such prisoner or defendant is to be tried.” Rev., p. 280.
The contention of the counsel of the defendant was that this provision had been modified by the act of 1881 (Pamph. L., p. 49), so as to require the names of all the jurors on the-general panel to be put into the box and forty-eight names h> be drawn therefrom, and the latter names so drawn to constitute the trial panel, a copy of which was to be served on the prisoner. But this is a misconstruction of the act referred to, for very plainly it does not have the effect ascribed to it. Its words are “ that in all cases requiring a list of the jury to be served on the defendant, the names of the jurors so served shall be placed in and drawn from the jury box in the ordinary way.” Thus it appears that it is not the names on the general panel, but the names on the list to be served on the prisoner, which are to be put in the box. The statutory purpose is plain. Before its passage the forty-eight names selected by the sheriff were called, in putting a jury in the box, in the order in which they stood upon the list, the consequence being that the officer had, in a measure, the selection of the persons who would try the prisoner, and! which was a power liable to abuse, and hence the requirements in the later act to put these forty-eight names in the box and that they should be drawn therefrom as in ordinary cases. Since the passage of this act of 1881, this has been its interpretation and uniform enforcement in practice. The objection has not the least force.
But there is a second exception, arising from another matter comprised in this same challenge, which ¶ appears to the court to be of a very different character.
It is now insisted before this court that at the trial the panel containing the forty-eight names was objected to, not only on the ground just disposed of, but for the further reason that such trial list had been selected, not by the sheriff, as the act requires, but by such officer, with the co-operation of the prosecutor of the pleas of the county. The question thus. [216]*216raised is manifestly a vital one, and therefore, in order that it may be entirely comprehended, I will set out the bill of exception relative to the subject in full. These are its words, viz.:
“Mr. Gaskill — We take exception to the method by which the forty-eight men were selected. We assert and offer to •show that they were selected by the sheriff, not in accordance with the provision of the statute, which requires that the names shall be put in a box and taken out in the same way that jurors are drawn to sit upon the panel. In this case, they were merely penned off, or marked off by the officer, and were not placed in the box and taken from there. I refer the court to Pamph. L. 1881, p. 49. In cases requiring a list of jurors to be served on defendant, the names of the jurors so served shall be placed in and drawn from the jury box in the ordinary way.
“The panel served upon the prisoner was not properly selected by the sheriff. The names of all the panel of jurors are required by law to be put iu the box, and the forty-eight names to be drawn and served upon the prisoner selected from the box, but in this case it had not been done in that way, but they had been selected by the sheriff and prosecutor of the pleas from the whole number of names on the panel, and not in compliance with the law.
“ But the court, after hearing argument thereon, refused to sustain the said exception, or set aside said list, but ordered the jurors to be drawn from the list of forty-eight names aforesaid, to which decision and ruling of the said court the counsel for the prisoner excepted, and prayed a bill of exceptions, and that the same be sealed, and it is allowed and sealed accordingly.
“Joel Parker, P. J. [l. s.]
“Jas. O. Glasgow. [l. s.]
“ Benj. P. Wills.” [l. s.]
It will, from this recital, be perceived that the plain interrogatory put to this court is whether, in a criminal case, if [217]*217the defendant offers to show that the forty-eight jurors constituting the panel from which are to be taken the jurors to sit in his case have not been drawn from the box, but “have been selected by the sheriff and prosecutor of the pleas from the whole number of names on the panel,” and such offer be overruled, such judicial action be or be not legal.
This is not a technical question, and consequently, should not be so treated by this court. It was suggested by the counsel of the state, in his argument before us, that this exception was not relied on before the trial court; that it was the other objection, and which has already been overruled, that was pressed • but of this we can know nothing. We have a certificate before us, under the hands and seals of the trial judges, that the exception was thus interposed, and we cannot be judicially informed as to the stress laid upon it in the argument of counsel in support of the challenge, nor' if we had such knowledge, could it in any measure affect the result, for if the point be well taken, the feebleness of its presentation or of the argument in its support can detract nothing from its legal force.
My first thought was that the objection had not been presented in proper form, inasmuch as it is a challenge to the array and was not in writing. But reflection has satisfied me that the suggestion has not the force that it was supposed to have. In the first place, a mere technicality of this kind, whose tendency is to prevent an inquiry into the fairness of the proceedings in the selection of a jury to try a person on á charge of a capital offence, should not be allowed to prevail unless from the absolute constraint of'law; and in the second place, although Mr. Chitty (1 Orim. L. 544) says that a challenge to the array must be in writing, I have failed to find any authority sustaining the assertion. ■ This author himself makes no reference to the books in maintenance of his text; and upon looking into the reports, I find cases that are adverse to the proposition thus broadly stated. Thus, in 3 Burns’ Justice 522, it is said: “ And every challenge must be propounded in such a way as that it may be put at the time [218]*218upon the Nisi Prius record, so that the adverse party may either demur, or counterplead, or deny the matter of challenge.” This seems to be all that is requisite; and it is obvious that this requisition has been complied with in the present instance. In the case of Hoare v. Broom, Cro. Eliz. 369, there occurs a challenge to the array, ore tenus, and which was acted upon by the court in a way that indicates, quite clearly, that the procedure was nothing unusual. See, likewise, Baa. Abr., tit. “ Jury.”
Besides this, if it appeared to be the practice at common law to put in these challenges in wilting, even then I should be unwilling to apply the rule to this case in its present position; for this challenge was, in point of fact, put in writing by the stenographer in the presence of the court, and was considered and passed upon by the court, and has been formally certified to this court as a part of the record of the proceedings. To turn aside from the decision of a question thus presented, on account of its want of correspondence to an uncertain mode of practice, would seem to me more like an effort to avoid than to discharge a judicial duty.
It may well be that in point of fact there is no substance in this objection, but it is not within our province to decide that question. If, as the matter now stands, we were at liberty to draw a conclusion, we would say, without a moment’s hesitation, that these facts alleged in this challenge are not and cannot be true. From the character and high professional standing of the officer whose intervention, it is claimed, has illegalized the process in question, we would say that to a moral certainty he has committed no intentional wrong, and from his well-known prudence, that it is highly improbable that any error has crept into the proceeding from an inadvertence. But such inferences as these have no place in this inquiry; on the contrary, by the plainest rules of law, we must, in the solution of the problem before us, assume as true the exact opposite of the conclusions above indicated. The rule is imperative, in the present condition of the question, that we must consider those things true which the de[219]*219fence offered to prove and was not permitted to prove. The consequence is we must accept as a datum given to us by the law that as a fact the public prosecutor co-operated with the sheriff in the selection of this panel, from which the jury that tried the defendant was taken.
The result .from such a premise cannot be a matter of doubt. There has never been a time in the history of the-common law when an act of this nature would have failed to vitiate the jury panel. Such interferences have always-been regarded as matters of substance, for an impartial trial would seldom occur unless the selection of the jury be impartial. “If any one or more of the jury be returned,” say the books, “at the nomination of the party plaintiff or defendant, the whole array shall be quashed.” 3 Burn’s Justice 517. In the case before us, the allegation is that the representative of the state participated in the choice, not of one or two of the jurors, but of the entire panel. The sheriff' is presumed to be indifferent and therefore impartial, and hence he is trusted with this highly important function. If it happens that he is interested in the litigation, he is known as the actor in returning the jury, and when the occasion calls for it, his acts can be challenged; but how could a party protect himself against the machinations of an unknown assistant of the officer, whose interest or malice, it may be, had perverted the process of the law into an instrument of injustice or oppression? If the agent of the state could thus take part in the nomination of the jury panel, so could the defendant, and yet who would doubt that a jury thus obtained would be set aside at the instance of the public. It is an essential in such procedures that the least unauthorized interference with the choice of jurymen should be rigidly and entirely prohibited. The defendant had the clear legal right to show that the panel in question had not been properly selected, and we think that the refusal of the trial court to> give him an opportunity to verify by proof his allegations in this respect constitutes such an error in law as vitiates the conviction.
[220]*220I ana likewise of opinion that there is another fatal error in 'the conduct of this trial.
There were certain so-called dying declarations that were permitted, against objection, to go to the jury as legal evidence. After full examination of the subject, I am entirely satisfied that the first of this series had no evidential value, and ought ,iaot to have been received by the court.
The particular declaration to which reference is made was •offered under the following circumstances :
On the morning of Tuesday, the 8th of February, 1887, Katie Anderson, as she was generally called, was found by the roadside in a semi-conscious condition. There was a wound •apparent on the left side of her head, caused by a pistol-ball that had traversed her brain. She was carried to the house of her aunt, who was the mother of the defendant. She exhibited no signs of being in acute pain, and she knew, when •aroused from the stupor in which, for the most part, she lay, .her father and mother, and spoke to them in detached sentences ; but when she thus spoke it was rationally and to the purpose. On the following day she was moved to her father’s house, and it was on Friday, the fourth day after the wounding, that she made the statement now in question.
To manifest the condition of the girl, and that she believed that death was impending, the state introduced the following testimony:
Her sister, Eva, was asked whether she remembered what ■the doctor said to Katie on this occasion, and she said, “Yes; he told her she was liable to die any hour, and asked her if •she expected to get well, and she said, ‘ No; she didn’t-expect to get well, but she would like to get well.’ ”
The doctor himself describes what passed at this interview. He was thus interrogated :
“ Q. Do you remember whether you said, in Katie’s presence, as to her liability to die at any hour ?
“ A. Yes, sir; I repeated it.
“ Q. I am speaking of that morning ?
“ A. Yes, sir; I said so that morning.
[221]*221“ Q. "What did you say ?
“A. I said she was liable to die at any moment.
“ Q. Did you say that to her ?
“ A. Yes, sir; I said it at the bedside.
“ Q. It was sometime during that interview that the mewing of the cat took place in the room ?
“A. I remember.
“ Q. Did you ask her what the cat said ?
“ A. I don’t remember whether I asked her, or whether it was Eva; and she said ‘mew’ [illustrating] in a smiling-way.
“ Q. Katie smiled, and said ‘ mew ’ ?
“ A. Yes, sir.”
Then he asked her if she was fond of oranges, and she said, she was.
The cross-examination elicited these further answers, viz.:
“ Q. Then all the way through this treatment of the girl you held out to her that there was no hope ?
“ A. I did, sir.
“ Q. Not a possible chance to live?
“A. Only through an operation.
“ Q. You did not hold out the hope that she might live?
“ A. That there might be; that would be the only chancer for her recovery.
“ Q. You had told her that, had you not?
“ A. Yes, sir.
“ Q. "When did you tell her that ?
“A. I told her that previous to the 13th — to the first-operation.
“ Q. How long previous to that ?
“ A. I think about two days; I think it was on the 11th I made that remark to her.”
The eleventh was the day on which the declaration now-under investigation was made, and this was the entire ground, laid by the state for the legalization of such declaration.
The method in which it was obtained is thus described by the aunt, who was present:
[222]*222“ Q. What did you hear Katie Anderson say — whom did you hear question her ?
“A. Eva.
“ Q. Her sister, Eva ?
“A. Yes, sir; she had her on her arm at her head, leaning •on her body and her arm together.
“ Q. State what was said between them ?
“ A. I heard Eva ask her how it happened, and she said to her, 'Did you do it yourself/ and Katie said, 'No;” that is the first I heard; and Eva then mentioned over two gentlemen I didn’t know at all, and she said, ' No.’
'' Q. Be a little more particular and state what she did mention ?
" A. She asked her — I can’t tell the man’s name.
'' Q. State what she said in connection with some man’s name, or person’s name ?
" A. There was one by the name of Pugh — not Pugh, Poole; she asked if he did it, and Katie spoke quite short, I thought, and said, 'No;’ then she asked her some one — but that one I can’t recollect; then Eva said, 'Who did;’ 'Why/ she said, 'Barclay/ or she said 'Bart/ just so; and Eva looked at her and said, 'Are you certain?’ and she said, 'Yes ; if he denies it fetch him here and I will face him on it.”
Upon a careful consideration of the testimony thus recited, no legal ground has been found that will justify the admission of the foregoing statemént. The fundamental principle touching the admissibility of testimony of this class is that the person making the declaration shall have a complete conviction that death is at hand. The burthen is on the state to show that such absolute conviction is present. Death, shortly to ensue, must be an absolute certainty, so far as the consciousness of the person making the accusation is concerned. If there is the least hope, no matter how faint, the requisite ■certainty of belief does not exist. This rule is so completely established that it is not open to discussion.
The doctrine was declared and defined, with succinct completeness, in the carefully considered case of Regina v. Jen[223]*223kens, L. R., 1 C. C. R. 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 burthen of proving the facts that render the declaration admissible is upon the prosecution.”
In the case of Donnelly v. State, the rule will be found to be expressed almost in the same words, both of this court and the Court of Errors.
The testimony now in question will not, it is very apparent, stand the test of this principle. Neither the expressions used by the deceased, nor the expressions addressed to her, nor the surrounding circumstances, indicated a consciousness that death was absolutely certain and was close at hand. She said no, she did not expect to get well, but she would like to; expectation implies probability, but not certainty; we expect the probable will happen, but we know the certain will occur. The words used by her convey, in their usual and natural meaning, that there was a possibility, but ■not a probability, that she would suryive.
Nor is it possible to believe that what the doctor said to her left her without hope. He told her she might die at any moment, but he did not say it was certain that she would die, but, on the contrary, told her there was one hope and that was in an operation that was to be performed in a short time. I find no case, when a hope has been expressed by the surgeon to the patient, in which the declarations of such patient have been held admissible. The decisions are all to the con[224]*224trary. Several of them are referred to by Mr. Roscoe in his Criminal Evidence (page 30.) This is one of them: 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 wound, replied, “I am satisfied,” and after this made a statement. It was held by Chief Justice Abbott and Justice Park to be inadmissible as a declaration in articulo mortis, since it did not appear that the deceased thought himself at the point of death, for being told that the wound was not necessarily mortal, he might still have had a hope of recovery.
And this was, substantially, the expression of medical opinion in the present instance, for the patient was here informed that the wound was not necessarily mortal, as a ground for hope from the anticipated operation.
These expressions thus used by the deceased and by the physician, and which were repellant of the conclusion that death was deemed to be certain and imminent, were not controlled by the circumstances attendant at the time of their utterance.' The physical and fnental condition of the deceased had perceptibly improved during the four antecedent days, and she lived afterwards for several weeks; during the interview comprising her declarations she was cheerful, imitating the mew of the cat, and smiling at her effort. She received her aunt with pleasant surprise, exclaiming: “ Why, Aunt Jane, is that you ? ” In short, there was not the faintest trace of those feelings of fear or awe, or religious resignation, which are so generally exhibited by women when they know that they stand in the very shadow of death. It was said, in the Donnelly case, that it was the “ solemn circumstances ” present at the dying hour that is supposed to “ create a sanction equally impressive with that of an oath administered in a court of justice.” In the instance before us there were no “ solemn circumstances.”
As the state, therefore, failed to show, by what was said to the deceased, or by her own expressions, or by the conditions of her situation, that she believed, with absolute certainty, [225]*225that death was at hand, her declarations thus made were, in my opinion, plainly inadmissible.
Before parting from the case, and as it must be retried, I am impelled to say a few words expressive of my own personal views, with respect to its general aspects.
No case seems to me better calculated to serve as an impressive monition against giving too great an effect to statements made by persons in a dying condition. Such statements almost invariably exercise an undue influence over juries, and hurry them into extremes. In the estimation of judges such statements are full of dangers, and on this account their admissibility is determined by a strict measure- “ Dying declarations,” such is the language of the opinion in the case cited from the Crown Cases Reserved, “ ought to be admitted with scrupulous, and I had almost said with superstitious care. They have not necessarily the sanction of an> oath; they are made in the absence of the prisoner; the person making them is not subject to cross-examination, and is-, in no peril of prosecution of peijury. There is also great danger of omissions, and of unintentional misrepresentations, both by the declarant and the witness.”
It was evidence of this dangerous kind which, in the main, led to the conviction of this defendant. In the absence of testimony of this class, a verdict against him would not have rested on any reasonable basis, and yet it is very clear that the declarations which played this thoroughly important part were marked, not only by the imperfections natural to such testimony, but were also deformed by certain conditions of their own. They were not voluntary statements, but were obtained by solicitation from the wounded girl when half aroused from-a state of unconsciousness; they were the products of interrogations and suggestions ; there were a number of them, each in the presence of several persons, and yet no two witnesses agree precisely as to the very words spoken, and in some instances such testimonies are widely variant. And these statements were all made after the arrest of the defendant, and it is-obvious that those who heard them believed in his guilt, and [226]*226were therefore subject to that bias which naturally exists in those who are performing the duty of hunting down a criminal. And, finally, we are not to forget such testimony is made up of fragmentary expressions, unexplained and unexplainable, in which the change of a word, or of its collocation, may either take or save a life. It is consequently manifest that here was a train of evidence, of most dangerous tendency, calling for the closest scrutiny and the most vigilant super- • vision on the part of the court.
By this criticism it is not to be implied that an opinion is indicated that the defendant should not have been convicted ns a guilty participant, in this tragedy. That, under all the •evidence in the cause, was a question that the jury could, not unreasonably, resolve as they have done; but the gravest doubt ■arises, in my mind, when we proceed to inquire for evidence, in a satisfactory form, showing that the homicide in question was the intentional act of the defendant. It has been so de•clared by the jury, and in this particular, this verdict seems .so questionable as to give rise to the inference that these dying •declarations have been possessed of an unwarrantable efficacy.
This attribution to this defendant of a preconceived purpose to take the life of the deceased girl, appears to me to be opposed by two of the prominent features of the case.
In the first place, there seems to be an absence of all proof of a homicidal motive. The prosecution,assigned jealousy as the cause; but the suggestion seems to me, after a careful study of the testimony, to stand upon no foundation whatever. I have found neither the existence of such a passion, nor any reason for its existence.
This consideration should be of great weight; but it is not conclusive. But what are we to say of the conduct of the defendant immediately after the homicide ?
It has been already stated that the deceased girl was found early on Tuesday morning by the roadside, in a nearly unconscious condition, whence she was taken to the house of her aunt, who was the mother of the defendant. At that point of time the defendant himself was at the house of a neighbor, [227]*227■and was there informed of the finding of the wounded girl, and that she had been taken to his mother’s house.
Assuming that the defendant had acted the part of an ■assassin, certainly a more terrific annunciation than this could not have been made to him;' he had left his victim in supposed death by the wayside, and he was now told that she was alive. Could he doubt that she would denounce him as her slayer? And yet, witness his conduct. He at once hastened to his home, and found the neighbors in the act of laying the wounded girl on the bed; he instantly went to her .and kissed her, asking: “ Katie, who hurt you ? ” She made no reply. Then he sat by her for some time, holding her hand. Her mother arrives, and is recognized, and her father says to her’: “Katie, this is too bad!” and the reply is: “Yes, father; but I couldn’t help it.” Again, on the following morning, the defendant, in the presence of her mother, kissed the deceased, she kissing him, and he again asked: “ Katie, who shot you ? ” the response being: “ Well, he is a nasty, dirty rascal.” Again, he pressed the question, and the reply this time the mother could not remember. Shortly after this, the doctor came, who, with the mother, being alone in the room, endeavored to get the girl to disclose the manner in which she had been hurt, and failing in the effort, they resolved to call in the defendant, in the hope that she might make the disclosure to him. Under these circumstances, the defendant, without a moment’s hesitation, upon being summoned, went into the sick room, and in the presence of the ■doctor and the mother said, three several times :■ “ Katie, who shot you ? Won’t yoü tell me who shot you ? ”
This^evidenee appears to me to be utterly averse to any theory of the case involving the assumption of an intention to commit this homicide on the part of the defendant. I do not believe that any man in the possession of his senses ever has, or ever will, stand under such circumstances as are here presented, in the presence of his victim, and importune that victim to denounce him as the murderer.
These solicitations, as matters of evidence, are nowise iu [228]*228dispute, for they were proved on the part of the state; and, their effect on my mind is to lead me to the opinion that it would be unsafe, and indeed illegal, to permit, as matters stand, a conviction of the crime of murder in the first degree. An intent to kill is an element of that offence, and the ascription of such an intent, as has been said, is out of harmony with this part of the conduct of this culprit. An. hypothesis, founded on the proofs, that involves criminal misconduct of the defendant, can be readily formed, and which would not conflict with the circumstances just stated, for if we eliminate from the charge of homicide the imputation that, the act was done purposely, all difficulties of the kind referred to are at an end. A case of the sort may be readily put. Let us suppose this girl and the defendant met by appointment in the lane where the shooting occurred, and that such meeting had been arranged may well be said to be indicated by the proofs. There is much also in the testimony to justify the belief that the girl, on the day before, had, in a playful manner, taken the defendant’s pistol from him, saying that he would hurt some one or himself with it; she may, therefore, have carried it with her to the place of meeting to return it. Then, add the supposition that having thus met — it. was at a lonely place and in the evening — the man committed an indecent assault upon the girl, and that she produced the pistol, and in the struggle for its possession it was accidentally discharged, and thus the fatal wound was inflicted.
It is obvious that such a theory, unlike that involving an. intent to kill, will harmonize with all that we know of the case. It would at once dissipate the objections arising from the absence of motive, and the presence of repeated importunities. on the part of the defendant to get statements from the deceased. It would agree with all the dying declarations the girl said, in one of them, that he watched at the end of the lane, which would be a natural occurrence if they met by-appointment ; she said it was “ Bart shot her,” or “ Bart did it,” a statement not inconsistent with an accidental shooting, if the weapon was in defendant’s hands at the time of its [229]*229•discharge; so it would agree with the strange circumstance that she was reticent, and at all times reluctant to ascribe the ■ act to him, and that on no occasion did she exhibit towards him the least anger, or ever blame him. If he had shot her down in cold blood, how is such conduct on her part to be ■accounted for? Would she not have recoiled from him, and at once have proclaimed him her murderer ? Instead of this she kissed him, and spoke to him without excitement. We ■readily account for this conduct on some such theory as that • of an accidental shooting; and we also see why it was that the defendant so pressed the girl to speak on the subject, for if he ■ could procure from her such a version of the affair it would avert from him the terrible charge of murder which was then impending. It was in evidence that the morning after the • occurrence he said, confidentially, to a friend, that “ if Katie tells her story I will tell mine, and it will take a great load • off my shoulders.” It is certain that he tried, in good faith, to induce Katie to tell her story, whatever it was.
And so the girl’s description of the person wounding her as ’“a nasty, dirty rascal,” does not suggest the idea of a murderer, but an assailant of the kind supposed; and her answer ■to her father’s remark that it was “too bad,” “Yes, father, but I couldn’t help it,” is also strongly suggestive of the element of accident in the transaction.
There are other harmonies that might be pointed out, but ■ enough has been said for the purpose in hand; the proofs in ■the case are consistent with the imputation to the defendant -of a lesser crime than that of murder in the first degree, while ■-they cannot, as it seems to me, be made to support, in a satisfactory manner, a conviction of this latter crime. I have entirely failed to see how the state can be said to have proved, beyond a reasonable doubt, that this homicide was the high ■ crime of murder in the first degree.
These suggestions, proceeding from myself alone, have been -made so that the case, in these aspects, may receive consideration at the retrial.
Let the judgment be reversed, and a venire de novo issue.
[230]*230Dixon, J.
I do not dissent from the judgment of reversal pronounced in this case, but I cannot concur in the ruling of the court upon the subject of “ dying declarations.”
The admissibility of these declarations at the trial of the-plaintiff in error for the murder of Catharine Anderson, depended upon the preliminary decision of a question of fact. That that question of fact was correctly apprehended by the court below is manifest from the terms in which it was stated by the learned justice who presided at the trial, when announcing the decision of the court upon the admission of the-declarations. He said: “Before “’dying declarations’ are admissible in evidence, it must appear that they were made-under the consciousness of what is termed ‘ impending death/ * * * a present apprehension and belief that death will certainly come from the effect of the wound; that it is near at hand and may at any moment seize the declarant. A wounded person may pot die for days or weeks after making the declarations, yet if at the time they were made, he believes he will not recover, that he will surely die of the-wound, and that death may come speedily, he has a sense of impending death which will render the declarations admissible. The evidence is admissible, if the testimony shows, from all the circumstances that he expected to die from that wound speedily, that hope of recovery had departed, and that he was fully conscious of approaching dissolution.” The-learned justice also quoted the language of Chief Justice Green and of Mr. Justice Ogden in the case of State v. Donnelly, as reported in 2 Dutcher 500, 618. These statements embody the legal rule on this subject as it exists in New Jersey.
The next point of our inquiry concerns the decision by the ■ court below of this preliminary question.
It must bs borne in mind that the matter comes before us-by writ of error. We are not dealing with a rule to show cause, or a certified case, or a case reserved, where we might consider the evidence at large as if a trial court; but we are dealing with a writ of error, where the only matters open for-[231]*231review are questions of law. Cox v. Drake, 17 Vroom 167. Now, undoubtedly the preliminary question above referred to was one of fact. What state of mind must be shown to render a declaration admissible in evidence as a dying declaration is a question of law; but whether in- the particular case that state of mind exists is a question of fact. The decision of that question cannot be reviewed on writ of error. But behind the decision of such' a question, and necessarily entering into it, there is another question, viz.: Whether the evidence relative to' the fact is such as furnishes legal support for the decision rendered. This question is one of law, and therefore open to review on error. Such seems to ‘be the opinion expressed by Chief Justice Green in State v. Donnelly, 2 Dutcher 498, 500, where he said, in discussing the subject: “ Upon the mere credibility of the testimony upon this preliminary issue, the decision of the court below must be regarded as. final. * * * The question here is not a question of the weight of testimony, but whether there were facts before the court below which warranted them in admitting the evidence of” the declarations of the deceased. While this language is not so perspicuous as usually were the judicial utterances of that distinguished jurist, I deem its purport to be that which I have above stated. At any rate, I am unable to put the' question in any form which will be broader than that above proposed and yet will keep the question one of law and not, of fact.
The question thus stated is simply one of ratiocination. Legal evidence relevant to a question of fact affords legal support for any decision of the question which is a reasonable deduction from the evidence. The decision need not be that deduction which to the judge sitting in review appears the most reasonable; it is enough if he can see that it has been drawn from the evidence by the exercise of the reasoning faculty in normal operation.
So considered, I think it plain that the decision of the court below, to the effect that Catherine Anderson, on February 11th, when she made the declarations which are now [232]*232adjudged inadmissible, was in such a frame of mind as rendered her statements “ dying declarations,” had legal support in the evidence.
The pertinent facts which had then been directly proven were thus summarized by the learned justice presiding at the trial, the quotations being made from the bill of exceptions:
“ On Monday, the 7th day of February last, Katie Anderson, a young girl of sixteen, light of heart and buoyant in spirit, physically well developed and apparently in perfect health, in the early evening, left the house of her employer, with nothing but a shawl upon her head, as if to be only temporarily absent. She did not return. Early the next morning she was found by the roadside, not far from the end of the lane which leads to the house which she had left the previous evening, with a wound in her head, caused by a ball shot from a pistol. She was paralyzed in body and almost ¡totally unconscious. It was found upon examination that the bullet had gone almost through the brain. The wound was a terrible one, and baffled the skill of eminent surgeons. On Friday, the 11th day of February, Katie Anderson became conscious. The immediate effect of the concussion or shock had passed away, and compression had scarcely begun to do its work. The attending surgeon, observing her return to consciousness, believed it his duty, in view of her critical condition, to have her make a statement of the circumstances •attending the shooting. Accordingly, Dr. Brown, on the morning of that day, told her that in her condition of impending death, she ought to state how she came by that wound. The doctor told her she was’liable to die at any moment. Then her sister told her she ought to say something, and she expressed her willingness to make a statement. Katie was raised up at her request; she asked for a drink of water, which was given her. Then the doctor repeated to her what he had before said about her impending death and her danger of dying at any moment. Katie then repeated a few words in prayer. She was then asked by her sister if she expected to get well, and she said, “ No.” It was under such circumstances, with [233]*233the bullet still in her brain, with her limbs paralyzed and almost motionless, the family at her bedside, her faithful surgeon notifying her of her critical condition, her danger of dying at any moment, that she expressed her belief that she would die, that she would not get well; and after breathing a prayer to her Maker, she made the declarations as to the shooting which it is proposed to put in evidence. The court think that when, on the morning of the 11th of February, she made those declarations as to the shooting, Katie Anderson was under a sense of impending death.”
Besides the facts thus enumerated, there were two or three other circumstances which might be regarded as suggestive of her mental condition. One was that a cat, in the room, having mewed, she was asked what the cat said, and she answered in a smiling way, “ Mew;” and being also asked whether she liked oranges, she replied that she did. This conversation I understand to have been held before she was told of her liability to die at any hour, and with the design of learning whether her consciousness had fully returned. St» viewed, it seems unimportant on the present inquiry.
Another circumstance was that when asked if she expected to get well, she added to her negative response the remark that she would like to get well. This, possibly, may have resulted from a lurking hope of recovery, but more probably it sprang from that '“longing, lingering look” with which youth, at least, is apt to leave “ the warm precincts of the cheerful day.” Its real source the trial court alone could legally determine.
A third circumstance may, perhaps, be gathered from the following cross-examination of the physician:
“ Q. Then all the way through this treatment to this girl you held out to her that there was no hope ?
“ Q. Not a possible chance to live ?
“ A. Only through an operation.
“ Q. You did not hold out the hope that she might live ?
[234]*234“ A. That there might be; that would be the only chance for her recovery.
“ Q. You had told her that, had you not ? ”
“A. Yes, sir.
“ Q. When did you tell her that ?
“ A. I told her that previous to the 43th, to the first operation.
“A. I think about two days; I think it was on the 11th when I made that remark to her.
“ Q. Did you not give her any encouragement ?
“ A. No, sir; I never gave her any encouragement.
“ Q. And during the whole two weeks, the first two weeks of her sickness, you never held out to her a particle of encouragement about there being a possible chance for her recovery ?
“ A. Never at any time.
“ Q. You never spoke an encouraging word to her ?
“ A. Never, sir.
“ Q. You néver said anything to her that would lead her for an instant to hope that she might possibly recover from the effects of this injury ?
“A. Never, sir.”
With regard to this testimony, several remarks are obvious. First, the meaning of the witness is uncertain; with one breath, he says he had told his patient that through an operation would be the only chance for her recovery; with the next, he avers that he had never said anything to her that would lead her for an instant to hope that she might possibly recover. Secondly, it is left doubtful whether he had spoken of the operation before she made the declarations which were received in evidence. These declarations were made on the morning of the ,11th; the witness saw the patient on the evening also of that day, and no preparations for an operation were made till the 13th. Thirdly, it is by no means clear that the physician’s remark about a chance through an operation created any hope in the patient’s mind. She saw no attempt to perform an operation. She was told that death [235]*235was impending, liable to come at any hour, and she never wavered from her statement that she did not expect to recover.. While in all this I see ground for debate as to her mental condition, I see no ground for a judgment that the conclusion of the court below on this point was unreasonable, and therefore legally erroneous.
In my opinion there is no error in this branch of the record-