Desmond, J.
Sometime between 10:00 p.m. and midnight on March 20, 1947, in defendant’s small apartment in Geneva, N. Y., Anna Allen, defendant’s wife, suffered a deep abdominal wound from a kitchen knife. She died in a hospital at about 11:00 p.m. on March 25, 1947. Defendant, alone with his wife when she was cut, was charged with the fatal wounding and, indicted for murder, second degree, was convicted of manslaughter, first degree.
The proof at the trial may be considered under these five heads:
1. Testimony as to the condition of the wife when found in the apartment by a lodger, and when received at the hospital a little later.
2. Testimony that the wife, after she was hurt, told the lodger, and told policemen, in defendant’s presence, that
“
Al ” (defendant)
“
stabbed her ”.
3. Testimony of a similar accusation made by the wife at the hospital about twelve hours before her death, and received in evidence as a dying declaration.
4. Defendant’s statement to the police on the day after the wounding of his wife, in which he said that there had been a drinking bout that night, then a quarrel, that his wife had picked up the knife, whereupon he had tried to take it from her and that in the ensuing struggle she had somehow been stabbed.
5. Defendant’s testimony at the trial, differing in detail only from his pre-trial statement (No. 4 above).
Obviously, the judgment of conviction needs the support either of the accusatory statements, or of the so-called dying declaration, all of which were objected to on the trial as hearsay. It is our conclusion that those objections were well-founded, that none of the testimony, noted at Nos. 2 and 3 above, was admis
sible, and that, since there was no other incriminating proof, defendant should have had, and must now have, a dismissal of the indictment.
The accusatory statements were testified to by a lodger at the apartment, who came home from work an hour or so after the wounding, and by a police officer, summoned by the lodger. The lodger, arriving at the apartment, found the bleeding wife in the bedro.om, and defendant sitting in the kitchen five or six feet away.- The wife, according to the witness, said to the witness
“
A1 stabbed me”; this witness’ testimony was self-contradictory to some extent, as to whether or not the husband immediately denied the accusation, but a fair interpretation of it is that he made a denial, but not at once. The police officer testified that, summoned to the place, he asked the lodger to ask Mrs. Allen who had stabbed her, and that the latter again answered “ Al ” and further identified “ Al ” as being her husband, this defendant. The officer then, as he testified, asked defendant why he had done it, but defendant gave an equivocal reply. Defendant was then arrested. This same police officer told the jury that defendant was so intoxicated that he was unable at that time, or later that night, to give any coherent account of what had happened. On the stand, defendant denied that he had heard his wife accuse him.
The rule is settled that such accusatory statements, not denied, may be admitted against the one accused, as admissions, but only when the accusation was “ fully known and fully understood ” by defendant
(People
v.
Koerner,
154 N. Y. 355, 374), and when defendant was ‘‘ at full liberty to make answer thereto, and then only under such circumstances as would justify the inference of assent or acquiescence as to the truth of the statement by his remaining silent ”
(People
v.
Conrow,
200 N. Y. 356, 367). The record here falls far short of meeting those tests. It is not certain that defendant even heard his "wife’s charges, he seems to have' denied guilt (to the lodger) soon afterwards, he was under no obligation to speak at all when under arrest or about to be arrested
(People
v.
Rutigliano,
261 N. Y. 103, 107), and, most important, he was to some considerable degree intoxicated. His failure to deny, or to make immediate and positive denials, could not, under such circumstances, be treated as voluntary conduct equivalent to an admission of guilt. Such hearsay evi
dence is never to be admitted unless clearly within the rule
(People
v.
Kennedy,
164 N. Y. 449, 457). It was, therefore, error to receive such testimony, and, in such a case as this, serious error.
Now as to the “ dying declaration ”. Mrs. Allen was taken to the hospital early in the morning of March 21, 1947, and lived until eleven o’clock in the evening of March 25th. Soon after admission to the hospital, she was given blood plasma: and the incision, which had penetrated the abdominal wall and perforated her intestine, was sewn up. Later she developed peritonitis and was for some time in an oxygen tent. During her four and a half days in the hospital she was unconscious at times. Her mother testified that, twelve hours before Mrs. Allen died, she told her mother, when the two were alone in the sick room, that she and her husband had an argument and
“
he grabbed up the bread knife and stabbed her ”. We pass tüe point that this narration was somewhat equivocal, and need not necessarily have been meant to describe an intentional stabbing. We address ourselves to the question of whether it was
a1 ‘
dying declaration ” within the strict rules allowing the use, on a trial, of that type of hearsay.
The People justify the trial court’s acceptance of this declaration, by pointing to testimony which, the People contend, meets all the preliminary requirements of the dying declaration rule. There was proof that Mrs. Allen had received the last rites of her church shortly after arriving at the hospital, that on the next day, reminded by a caller that her (the wife’s) birthday would come a month later, she replied that she “ wouldn’t live that long that she asked that the oxygen tent be removed because she was “ going to die anyway that on March 21st she told a relative that she did not think she would ever get well; and that on several occasions, down to the night of March 24th-25th, she told her nephew, who helped care for her, that she knew she was going to die, because all her relatives had come to see her. While in the hospital she never expressed any belief or hope of recovery but, on the other hand, no one, so far as appears, ever told her that her death was imminent, and, indeed, the attending physician, who said that at times she seemed likely to live and at others likely tó die, testified that
on the very day she died and during the morning on which she made the “ dying declaration ” to her mother, he (the physician) thought she was going to get better.
There are writings innumerable stating and applying the rules for admission of dying declarations. All of them emphasize, in one form of words or another, the absolute and unvarying necessity for these two showings, at least: that
“
the declarant was
in extremis
” and
“
was under a sense of impending death, without any hope of recovery ” (Richardson on Evidence [7th ed.], § 304).
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Desmond, J.
Sometime between 10:00 p.m. and midnight on March 20, 1947, in defendant’s small apartment in Geneva, N. Y., Anna Allen, defendant’s wife, suffered a deep abdominal wound from a kitchen knife. She died in a hospital at about 11:00 p.m. on March 25, 1947. Defendant, alone with his wife when she was cut, was charged with the fatal wounding and, indicted for murder, second degree, was convicted of manslaughter, first degree.
The proof at the trial may be considered under these five heads:
1. Testimony as to the condition of the wife when found in the apartment by a lodger, and when received at the hospital a little later.
2. Testimony that the wife, after she was hurt, told the lodger, and told policemen, in defendant’s presence, that
“
Al ” (defendant)
“
stabbed her ”.
3. Testimony of a similar accusation made by the wife at the hospital about twelve hours before her death, and received in evidence as a dying declaration.
4. Defendant’s statement to the police on the day after the wounding of his wife, in which he said that there had been a drinking bout that night, then a quarrel, that his wife had picked up the knife, whereupon he had tried to take it from her and that in the ensuing struggle she had somehow been stabbed.
5. Defendant’s testimony at the trial, differing in detail only from his pre-trial statement (No. 4 above).
Obviously, the judgment of conviction needs the support either of the accusatory statements, or of the so-called dying declaration, all of which were objected to on the trial as hearsay. It is our conclusion that those objections were well-founded, that none of the testimony, noted at Nos. 2 and 3 above, was admis
sible, and that, since there was no other incriminating proof, defendant should have had, and must now have, a dismissal of the indictment.
The accusatory statements were testified to by a lodger at the apartment, who came home from work an hour or so after the wounding, and by a police officer, summoned by the lodger. The lodger, arriving at the apartment, found the bleeding wife in the bedro.om, and defendant sitting in the kitchen five or six feet away.- The wife, according to the witness, said to the witness
“
A1 stabbed me”; this witness’ testimony was self-contradictory to some extent, as to whether or not the husband immediately denied the accusation, but a fair interpretation of it is that he made a denial, but not at once. The police officer testified that, summoned to the place, he asked the lodger to ask Mrs. Allen who had stabbed her, and that the latter again answered “ Al ” and further identified “ Al ” as being her husband, this defendant. The officer then, as he testified, asked defendant why he had done it, but defendant gave an equivocal reply. Defendant was then arrested. This same police officer told the jury that defendant was so intoxicated that he was unable at that time, or later that night, to give any coherent account of what had happened. On the stand, defendant denied that he had heard his wife accuse him.
The rule is settled that such accusatory statements, not denied, may be admitted against the one accused, as admissions, but only when the accusation was “ fully known and fully understood ” by defendant
(People
v.
Koerner,
154 N. Y. 355, 374), and when defendant was ‘‘ at full liberty to make answer thereto, and then only under such circumstances as would justify the inference of assent or acquiescence as to the truth of the statement by his remaining silent ”
(People
v.
Conrow,
200 N. Y. 356, 367). The record here falls far short of meeting those tests. It is not certain that defendant even heard his "wife’s charges, he seems to have' denied guilt (to the lodger) soon afterwards, he was under no obligation to speak at all when under arrest or about to be arrested
(People
v.
Rutigliano,
261 N. Y. 103, 107), and, most important, he was to some considerable degree intoxicated. His failure to deny, or to make immediate and positive denials, could not, under such circumstances, be treated as voluntary conduct equivalent to an admission of guilt. Such hearsay evi
dence is never to be admitted unless clearly within the rule
(People
v.
Kennedy,
164 N. Y. 449, 457). It was, therefore, error to receive such testimony, and, in such a case as this, serious error.
Now as to the “ dying declaration ”. Mrs. Allen was taken to the hospital early in the morning of March 21, 1947, and lived until eleven o’clock in the evening of March 25th. Soon after admission to the hospital, she was given blood plasma: and the incision, which had penetrated the abdominal wall and perforated her intestine, was sewn up. Later she developed peritonitis and was for some time in an oxygen tent. During her four and a half days in the hospital she was unconscious at times. Her mother testified that, twelve hours before Mrs. Allen died, she told her mother, when the two were alone in the sick room, that she and her husband had an argument and
“
he grabbed up the bread knife and stabbed her ”. We pass tüe point that this narration was somewhat equivocal, and need not necessarily have been meant to describe an intentional stabbing. We address ourselves to the question of whether it was
a1 ‘
dying declaration ” within the strict rules allowing the use, on a trial, of that type of hearsay.
The People justify the trial court’s acceptance of this declaration, by pointing to testimony which, the People contend, meets all the preliminary requirements of the dying declaration rule. There was proof that Mrs. Allen had received the last rites of her church shortly after arriving at the hospital, that on the next day, reminded by a caller that her (the wife’s) birthday would come a month later, she replied that she “ wouldn’t live that long that she asked that the oxygen tent be removed because she was “ going to die anyway that on March 21st she told a relative that she did not think she would ever get well; and that on several occasions, down to the night of March 24th-25th, she told her nephew, who helped care for her, that she knew she was going to die, because all her relatives had come to see her. While in the hospital she never expressed any belief or hope of recovery but, on the other hand, no one, so far as appears, ever told her that her death was imminent, and, indeed, the attending physician, who said that at times she seemed likely to live and at others likely tó die, testified that
on the very day she died and during the morning on which she made the “ dying declaration ” to her mother, he (the physician) thought she was going to get better.
There are writings innumerable stating and applying the rules for admission of dying declarations. All of them emphasize, in one form of words or another, the absolute and unvarying necessity for these two showings, at least: that
“
the declarant was
in extremis
” and
“
was under a sense of impending death, without any hope of recovery ” (Richardson on Evidence [7th ed.], § 304). “ The principle upon which dying declarations are received in evidence is that the mind, impressed with the awful idea of approaching dissolution, acts under a sanction equally powerful with that which it is presumed to feel by a solemn appeal to Grod upon an oath. * * * Safety in receiving such declarations lies only in the fact that the declarant is so controlled by a belief that his death is certain and imminent that malice, hatred, passion and other feelings of like nature are overwhelmed and banished by it. The evidence should be clear that the declarations were made under a sense of impending death without any hope of recovery ”
(People
v.
Sarzano,
212 N. Y. 231, 234-235). In
People
v.
Ludkowitz
(266 N. Y. 233, 239) this court said that the expressions quoted above from the
8ar-sano
opinion
{supra)
mean that it must be shown that
“
the deceased was, at the time, under the sense of impending death and without any hope ”. (As to the requirement that this be
“
at the time ” of the statement, see, also,
People
v.
Becker,
215 N. Y. 126, 145.) Competency of the declaration as evidence depends on the state of declarant’s mind
“
when he made it ”
(People
v.
Falletto,
202 N. Y. 494,502). Thus, two of the unyielding requirements are that the dying declaration must be the product of a considered certainty of death near at hand,' not a mere “ suspicion or conjecture ”
(People
v.
Bartelini,
285 N. Y. 433,440), and that the statement must be made under, and result from, a present sense of that impending death. Here there was not shown any certainty on declarant’s part that she was about to die, and, more conspicuously, there was absent the slightest intimation that her statements to her mother, as to her husband’s stabbing her, were made under a sense of, or because of, or were controlled by, any such belief. Not only were her predic
tians of death made casually and not solemnly, but her accusation was not shown to have any near relation, in time or thought, to those earlier expressions as to nearness of death. What she said about her husband was disconnected from what she had said about her own prospects for life or death, and what she said about death could not have been based on more than suspicion or conjecture, since no one had told her she was going to die, and her physician thought she was recovering.
The settled rules as to dying declarations
“
may not be broadened except by statute ”
(People
v.
Becker, supra,
215 N. Y. at p. 146). It is indeed a broadening, and a dangerous one, that we are asked to agree to here.
Our conclusion is that there is in this record no admissible evidence of guilt. This conclusion makes it unnecessary to discuss appellant’s other arguments except to say that we agree with appellant — and the District Attorney’s commendable concession —• that the proceedings had against this defendant in the County Court of Ontario County on June 30, 1933, on another criminal charge, did not amount to a conviction.
The judgments should be reversed, and the indictment dismissed.