Finch, J.
We all agree in this case that no error was committed upon the trial, unless as to the single point which in the opinion of Andrews, J., is deemed sufficient ground for ordering a new trial. That opinion states fully and accurately the facts disclosed by the proofs, and shows that the killing was admitted, and the only issue that remained was whether the fatal shot was accidental or intentional. It further holds that, when the admissibility of the dying declarations of Hannon was brought in question, it became the duty of the court to determine, as a preliminary issue,
whether the alleged declarations were made by the deceased under a conviction of approaching and imminent death, and that such necessary preliminary examination might, in the discretion of the court, be conducted in the presence of the jury.
When the dying declarations of Hannon were offered by the prosecution, the defense objected, upon the ground that they were not such. The trial judge answered, in substance, that he could not determine that question until he knew whether or not they were made in anticipation of approaching death. The defense then claimed a right to cross-examine “ upon that point.” The judge answered, “ Hot just yet,” and finally said, before the preliminary examination began, “ When the district attorney gets the statements of the witness, you may cross-examine, and I will then determine whether it comes within the rule.” At this stage of the case there seems to have been no room for a misunderstanding as to what was at the moment before the court. It was an issue of law, to be determined by the court upon facts addressed to it, and with which the jury had nothing whatever to do, The defense so understood it; for they sought to enter at once upon a cross-examination of the witness on that point. Everybody understood that the admission of any declarations of Hannon was stayed and barred until, upon the examination by the prosecution and the cross-examination by the defense, the issue of admissibility should be tried and determined by the court. During trial of that preliminary issue the jury stood merely in the attitude of spectators. The)' had no concern with it, and knew from the statement of the court that they had not. They understood that out of its result something might come before them as evidence, or nothing, and that, until the judge ruled, the facts developed were for his consideration, and not for theirs. The fact that their presence' was not error shows that, in the judgment of the law, a jury must be deemed capable of that amount of discrimination at least. And thus the trial of the preliminary issue before the court was entered upon with the complete knowledge and understanding of all parties.
The district attorney proceeded at once to the precise point, and proved ■ the statement of Hannon to his mother that he was “going to die.” At the close of about one-half of a printed page directed to the issue before the court, the prosecution said: “Now we think we have laid the foundation for declarations.” The judge seems not to have been .entirely satisfied. The mother had given to her son the doctor’s assurance that he would get well. It had produced no apparent effect at the moment; but who could tell that, if the rest of the conversation occurring thereafter should be disclosed, there might not appear a hope of recovery born of that assurance, or a spirit of hatred'and revenge inconsistent with the solemn truths of statements in the presence of death ? The prosecution had obtained enough for its purpose ; but the court had a duty to its own conscience,—a duty not to be hasty or to be misled, and to make sure that it fully and correctly understood the frame of mind of the deceased. The learned judge, therefore, continued the examination, and at some point the district attorney apparently aided in its progress until the witness had disclosed, not a selected part, but the whole of what deceased said to her during the last two days of his life. Near its close, Hannon spoke of the influence of Sweeney with the police. The prisoner’s counsel asked the court, “ Will you admit this ? ” to which the judge replied, “ I have not admitted anything yet; I want to hear the whole statement made by the deceased before I determine whether I will or will not allow the alleged dying declarations in evidence.” Nothing could be plainer or more direct than this. All that had been said by the witness was thus again declared to be purely tentative and preliminary, not yet evidence in the case, and wholly directed to the enlightenment of the court in the performance of its duty. The statement, thus interrupted, was thereupon finished in a single sentence more, of about half a dozen lines. So far, no evidence of Hannon’s declarations had been admitted at all. They had been repeated for the information of the court, to enable it to perform the duty of ruling
whether any, and if so what, portion of them was competent evidence to be submitted to the jury. Until some such ruling was made there could be nothing to which the prisoner could except as constituting legal error.
What followed was in some respects out of regular order. The district attorney, dropping the entire subject of the conversations with the deceased, proceeded to examine her, not upon the preliminary issue, but upon matters relating to the main issue, and belonging to the consideration of the jury. It would have been more regular to have first finished the preliminary issue. The prisoner’s counsel, however, seems to have acquiesced. He had been told that he could cross-examine upon the preliminary issue when the prosecutor had finished. That time had come, and he was at liberty, if he cared for the order of the proceeding, to interpose, and assert the right which the court had promised to give him, and ask a decision of the preliminary issue before the trial proper was resumed.” He did not do so. He chose to sit silent while the added proof, competent upon the main issue, was being submitted to the jury. When the district attorney closed his examination of the witness, the prisoner’s counsel asked three not very important questions, and then, turning to the court, said: “I move now.to strike out all the evidence given by the witness in regard to the interview with the deceased, on the ground that it is inadmissible, for the reason that the necessary foundation has not been laid for such declarations.” This motion was singularly inapt, except for one purpose. As no declarations had yet been received in evidence, there were none to strike
out;
and the objection was to the whole of them, when some were beyond doubt admissible. If the purpose was to draw from the court the admission that they had been received, or an assent to such claim, that purpose failed, for the court said, in answer to the motion: “ As I understand the position of the matter now, it is this: Mr. O’Byrne claims the right to cross-examine the witness in reference to
what will he claimed hy the district attorney
as evidence of dying declarations, for the purpose of ascertaining
whether it is admissible.
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Finch, J.
We all agree in this case that no error was committed upon the trial, unless as to the single point which in the opinion of Andrews, J., is deemed sufficient ground for ordering a new trial. That opinion states fully and accurately the facts disclosed by the proofs, and shows that the killing was admitted, and the only issue that remained was whether the fatal shot was accidental or intentional. It further holds that, when the admissibility of the dying declarations of Hannon was brought in question, it became the duty of the court to determine, as a preliminary issue,
whether the alleged declarations were made by the deceased under a conviction of approaching and imminent death, and that such necessary preliminary examination might, in the discretion of the court, be conducted in the presence of the jury.
When the dying declarations of Hannon were offered by the prosecution, the defense objected, upon the ground that they were not such. The trial judge answered, in substance, that he could not determine that question until he knew whether or not they were made in anticipation of approaching death. The defense then claimed a right to cross-examine “ upon that point.” The judge answered, “ Hot just yet,” and finally said, before the preliminary examination began, “ When the district attorney gets the statements of the witness, you may cross-examine, and I will then determine whether it comes within the rule.” At this stage of the case there seems to have been no room for a misunderstanding as to what was at the moment before the court. It was an issue of law, to be determined by the court upon facts addressed to it, and with which the jury had nothing whatever to do, The defense so understood it; for they sought to enter at once upon a cross-examination of the witness on that point. Everybody understood that the admission of any declarations of Hannon was stayed and barred until, upon the examination by the prosecution and the cross-examination by the defense, the issue of admissibility should be tried and determined by the court. During trial of that preliminary issue the jury stood merely in the attitude of spectators. The)' had no concern with it, and knew from the statement of the court that they had not. They understood that out of its result something might come before them as evidence, or nothing, and that, until the judge ruled, the facts developed were for his consideration, and not for theirs. The fact that their presence' was not error shows that, in the judgment of the law, a jury must be deemed capable of that amount of discrimination at least. And thus the trial of the preliminary issue before the court was entered upon with the complete knowledge and understanding of all parties.
The district attorney proceeded at once to the precise point, and proved ■ the statement of Hannon to his mother that he was “going to die.” At the close of about one-half of a printed page directed to the issue before the court, the prosecution said: “Now we think we have laid the foundation for declarations.” The judge seems not to have been .entirely satisfied. The mother had given to her son the doctor’s assurance that he would get well. It had produced no apparent effect at the moment; but who could tell that, if the rest of the conversation occurring thereafter should be disclosed, there might not appear a hope of recovery born of that assurance, or a spirit of hatred'and revenge inconsistent with the solemn truths of statements in the presence of death ? The prosecution had obtained enough for its purpose ; but the court had a duty to its own conscience,—a duty not to be hasty or to be misled, and to make sure that it fully and correctly understood the frame of mind of the deceased. The learned judge, therefore, continued the examination, and at some point the district attorney apparently aided in its progress until the witness had disclosed, not a selected part, but the whole of what deceased said to her during the last two days of his life. Near its close, Hannon spoke of the influence of Sweeney with the police. The prisoner’s counsel asked the court, “ Will you admit this ? ” to which the judge replied, “ I have not admitted anything yet; I want to hear the whole statement made by the deceased before I determine whether I will or will not allow the alleged dying declarations in evidence.” Nothing could be plainer or more direct than this. All that had been said by the witness was thus again declared to be purely tentative and preliminary, not yet evidence in the case, and wholly directed to the enlightenment of the court in the performance of its duty. The statement, thus interrupted, was thereupon finished in a single sentence more, of about half a dozen lines. So far, no evidence of Hannon’s declarations had been admitted at all. They had been repeated for the information of the court, to enable it to perform the duty of ruling
whether any, and if so what, portion of them was competent evidence to be submitted to the jury. Until some such ruling was made there could be nothing to which the prisoner could except as constituting legal error.
What followed was in some respects out of regular order. The district attorney, dropping the entire subject of the conversations with the deceased, proceeded to examine her, not upon the preliminary issue, but upon matters relating to the main issue, and belonging to the consideration of the jury. It would have been more regular to have first finished the preliminary issue. The prisoner’s counsel, however, seems to have acquiesced. He had been told that he could cross-examine upon the preliminary issue when the prosecutor had finished. That time had come, and he was at liberty, if he cared for the order of the proceeding, to interpose, and assert the right which the court had promised to give him, and ask a decision of the preliminary issue before the trial proper was resumed.” He did not do so. He chose to sit silent while the added proof, competent upon the main issue, was being submitted to the jury. When the district attorney closed his examination of the witness, the prisoner’s counsel asked three not very important questions, and then, turning to the court, said: “I move now.to strike out all the evidence given by the witness in regard to the interview with the deceased, on the ground that it is inadmissible, for the reason that the necessary foundation has not been laid for such declarations.” This motion was singularly inapt, except for one purpose. As no declarations had yet been received in evidence, there were none to strike
out;
and the objection was to the whole of them, when some were beyond doubt admissible. If the purpose was to draw from the court the admission that they had been received, or an assent to such claim, that purpose failed, for the court said, in answer to the motion: “ As I understand the position of the matter now, it is this: Mr. O’Byrne claims the right to cross-examine the witness in reference to
what will he claimed hy the district attorney
as evidence of dying declarations, for the purpose of ascertaining
whether it is admissible. Are you cross-examining on that point ? ” The prisoner’s counsel replied : “ I am not; I am in a general cross-examination.” The answer suggested to the judge the possibility of some confusion, for he at once said : “ You enter on the record that the court will now permit the defendant’s counsel to cross-examine the witness before passing upon the question of the admissibility of the alleged dying declarations made by the deceased to the witness as testified to by her.” To this the prisoner’s counsel said : “We cannot be estopped by any such record as that: it is a monstrous proposition.” Why that should have been said after what had occurred, it is difficult to say. We do not mean to criticise the counsel, who bore the heavy responsibility of his client’s life, or misinterpret his zeal; but, at least, we differ from him entirely. We see in the action of the trial court a steady purpose to keep the evidence of declarations out of the case until, at a proper and suitable time it should be determined what, if any, were admissible.
The counter-effort seemed to be to insist that the court stood in the position of having admitted in evidence what it is clear was never admitted at all. The cross-examination then proceeded. Before it closed, it reverted to the declarations of the deceased, which had been repeated to the court. The witness was asked if she recollected the interview clearly; if she thought her son was dying; why she did not send for a priest on Wednesday; what was the subject-matter of deceased’s conversation on Thursday; and what was the whole conversation between them. As the witness began to repeat it, the counsel closed his cross-examination. ■ The court then asked if it was finished, and, receiving an affirmative answer, proceeded to determine the preliminary issue, and decide what portion of the statement of the witness to the court should be admitted, and directed the stenographer to read to the jury, and he did read to them, “ so much and such parts thereof as are embraced within black lines,” and marked on the margin, “allowed to stand as evidence of dying declarations,” and ordered the balance to be “stricken
from the evidence,” and, in view of what had occurred, took the added pains to caution the jury to disregard what they had heard repeated, but what the court decided it would not admit. Upon this state of the facts I cannot resist the conviction that the declarations of Hannon now objected to were never admitted in evidence, but wholly excluded; and that the case is not at all one in which erroneous proof was first admitted, and then sought to be stricken out, but one in which no error of admission existed which required correction. It seems sufficiently evident, also, that any doubt on the subject, and any confusion or mistake as to what was being done, was steadily and persistently guarded against by the court, and the admissibility of the proposed evidence determined as soon as it could be done consistently with the right of cross-examination reserved to the defense.
Since there could be no valid exception to the admission of evidence which was never admitted, the only possible inquiry becomes whether the action, of the court in acquiring the needed information on which to rule is itself the subject of our review. We do not see how it can be. It rests in the judicial discretion. It never goes to the jury except so far as admitted. Some means of information the court must have. The suggestion made is “ that it should have confined the preliminary examination to the facts relating to the declarant’s condition of body and mind at the time.” That proposition, stated asa general rule for the guidance of trial judges in exercising their discretion, need not be doubted; but the inquiry will remain in each case, under its own peculliar circumstances, how far the examination should extend in order to ascertain with accuracy and reasonable certainty the mental condition and belief of the declarant. The exercise of that discretion was reviewable by the general term, but is beyond our jurisdiction, unless we can see that such discretion was abused, and the action of the court arbitrary and without reason. We cannot say that. There was a motive that might fairly have operated upon the judicial mind to push the inquiry beyond the point at which the district at
toxney paused, and that motive was, as we have already suggested, to ascertain whether the assurance of survival which the deceased had been told the doctors had given, became at any time so operative upon him as to awaken a hope of life. With that circumstance before it, the court might reasonably conclude that a part of what was said would scarcely furnish as safe a basis of judgment as the whole. We can readily see that the determination of the court to hear all that the deceased said, before deciding whether any of it was admissible, should not be deemed arbibrary or an abuse of discretion under the existing facts.
Suppose that it had turned out, as from what appears seemed quite possible, that the very last thing said by Han-non, relating not at all to the facts of the shooting, had shown the presence of a lurking but confident hope of recovery. Singularly enough, the prisoner’s counsel illustrates the force of what we are saying by claiming in his able brief jDrecisely such a result. He plants himself on the very last words of Hannon, which closed the conversation with his mother, and which were about Sweeney and the police, and argues that they show a hope of recovery. Hannon said : “ I am afraid, mother, you will get no satisfaction for your son.” She replied: “ Johnny, that qan’t be so.” He answered : “ I hope so, mother, because I would like to go agin them fellows.” The counsel claims that the expression does bear somewhat upon Hannon’s frame of mind, and yet, without what preceded it, its occasion, and even its accurate meaning, might be lost to us. It does not appear to have been deemed sufficiently material by the learned trial judge to have affected his judgment; but he could not have known that in advance; and it is easy to see that it might have assumed a form which would have been very material. The hope of survival, the lingering belief that death is not ineevitable, may disclose itself to an observant mind where even the witness does not see it, and may come to the surface when the talk is far away from the facts of the killing, and from the
res gestae.
The suggestions show that the action of
the court was, at least, not arbitrary, and without some apparent reason, and so its discretion was not abused. The general term, which had the power to review it, has held that the rights of the prisoner were not prejudiced, and its conclusions must therefore prevail.
The judgment should be affirmed.
Huger, O. J., Earl and Daneorth, JJ., concur. Andrews, J., reads dissenting opinion for reversal, and Peck-ham, J., concurs. Rapadlo, J., absent.