The opinion of the Court was delivered by
Watkins, J.
From a conviction of murder and a sentence to lifetime imprisonment, the defendant prosecutes this appeal.
It appears from a bill of exceptions in the record, that when the dying declarations of George Anderson were offered in evidence, defendant’s counsel urged, as an objection to their admissibility, that it did not appear that they liad been made under a sense of impending dissolution. Thereupon, the State’s counsel proposed to show this fact by the testimony of other witnesses, and thus establish a basis for the introduction of said declarations; and the defendant’s counsel then “moved the court to open a note of evidence, and to reduce this testimony to writing, as it was a mixed question of law and fact reviewable by the appellate court, and as said accused was notified that the evidence would not lay a sufficient basis.”
This request was declined by the trial judge, and, inter alia, he assigns the followiwr reasons for his declination, viz:
[144]*144“ The court is not aware of any law requiring the evidence to be taken down in writing in such cases, and refuses the request, for the reason that it was a useless consumption of time; and because the counsel for the defendant had ample opportunity to incorporate the facts in a bill of exceptions, which they have not seen fit to do, although they took the precaution to state the facts in writing, in the exception book, upon which they rely.”
lie then proceeds to state the purport of what appears in “the exception book,” and follows it up with Ms own version of the entire evidence on the subject, and, thereupon, gives it as his opinion that the deceased “ gave his dying declarations under a sense of impending dissolution,” and holds that same were admissible in evidence.
In our opinion the judge’s reasons do not fairly respond to the objection that was urged.
They disclose a necessity for some fixed and definite rule upon this subject — and it is one of very great importance — in order that the rights of accused persons may be fully protected, without prejudice to those of the State.
We have, on the part of defendant, a demand that the- testimony of witnesses, on this collateral issue, be reduced to writing as detailed by them, for the express purpose of bringing it up for review on appeal, in order to have a question of law determined.
We have, on the part of the trial judge, a distinct and emphatic refusal of the defendant’s request, because Ms counsel had enjoyed the opportunity of having them incorporated in a bill of exceptions.
The judge did not rest his conclusions on the adequacy of that statement, but, at once, proceeded to make a different version of the facts, and rested his conclusions upon it. In so doing he clearly demonstrated the fact that, if the defendant’s counsel did have ample opportunity to incorporate the facts in a bill of exceptions, it was, at the same time, rendered invaluable to him, by his own, possessing, as it does, the weight of his authoritative sanction.
Under this state of facts, the accused appears in this Court, practically deprived of the evidence, on which ha solely depends, and is necessitated to rely upon that to which the judge has certified.
In the absence of such proof, we have often hold, and have felt bound to hold, with the trial judge, in case there should be a difference between his statement of the facts and that of the defendant’s counsel Such being the case, is the accused entitled, during the progress of the trial, to have the testimony of witnesses upon a collateral issue of merit, reduced to writing, for the purpose of having it annexed to a bill of ex[145]*145ceptions, and reviewed by this Court, in ordcsr to obtain a ruling upon a question of law on wliich lie relies?
Unquestionably lie has.
While it is not denied that this Court -is without jurisdiction to examine into, or pass upon any question of fact, in so far as it may appertain to the guilt or innocence of the accused of the charge preferred against him, yet it is indisputable that it has jurisdiction to examine and weigh the testimony of witnesses, in the consideration and decision of questions of law growing out of the principal issue in the case, and which ave not submitted to the jury.
If it had not the power to do so,- how could the competency of a juror, or a witness be tested, or the misconduct of a juror determined ?
The usual form in which such questions are presented, is that of a bill of exceptions, containing a brief summary of the xoroof certified by the trial judge; yet it is evidence of witnesses which is thus tendered for the consideration of the court, at least; and it has been the recognized rule of tliis tribunal to consider such statements for the purposes of the questions therein raised, with few exceptions. •
This question was fully considered and well decided by this Court in Nelson’s case, in which the following language was employed, viz:
“ The prohibition to the exercise of the jurisdiction of this Court lies to its power to find pure questions of fact, such as were submitted to and found by the jury. The inhibition does not extend to the questions of law based upon the facts submitted to and determined by the judge. Of course this court could not review, under any circumstances, the verdict of the jury, on the facts found before them, on the trial of the accused.” State vs. Nelson, 32 Ann. 845.
In a more recent case, this Court had under consideration a question quite similar to the one under discussion, and, in the course of a remarkably lucid opinion, they said:
“ The test of the admissibility of the evidence is in the belief of the deceased that death is fast approaching^; that he is, in other words, under a sense of impending dissolution, and his statements concerning the res gesta, under the circumstances, are to be accredited under the law, as would his sworn testimony in ordinary cases. The question, therefore, as to whether the circumstances under which his statements are made, should entitle them to be received as though they were clothed with the sanctity of an oath, as with ordinary witnesses, is one of law blended with facts.
“ The fact is, the condition of the deceased, as to his chances of recovery from the wounds received; and the question of law is, whether his [146]*146condition, as shoum by the evidence, is such as to create upon his mind the belief of approaching death, under the effect of which his statements are to be received in evidence. The solution of this problem is the exclusive province of this court, and not of the jury, and is, therefore, subject to our revision.” State vs. Trivas, 32 Ann. 1088.
It has been the constant practice of this Court to examine the testimony of witnesses, for the purpose of determining the admissibility of dying declarations. State vs. Judge Spencer, 30 Ann. 361; State vs. Daniel, 31 Ann. 92; State vs. Keenan, 38 Ann. 660; State vs. Newhouse, 39 Ann. 862; 1 Greenleaf, § 158; State vs. Molisse, 36 Ann. 920; 1 Archibald, p. 140.
This being the settled rule of our jurisprudence, on the question of practice, on such collateral questions, it would seem to be a necessary corollary, that the defendant is entitled to have'this evidence reduced to writing, for the purpose of having it annexed to a bill of exceptions, and brought up with the transcript, for our interpretation, and for the purpose of enabling us to correctly determine the question of law presented by the bill.
This precise question seems to have never been decided by us, but, in State vs. Nelson, in treating of the proper course to be pursued in case of a difference of opinion between counsel and the court, we said:
“ The difficulty of a disagreement between the judge and counsel, as to the facts proved, may all be obviated by requiring the testimony to be reduced to writing, and, next, annexing it to a bill of exceptions, as a component part thereof; it being the clear duty of the judge, in case of motions for new trial, involving facts not submitted to the jury, to have such testimony put on record, at the instance of either party, as the saméis to be weighed, first by the judge a quo, and next by the appellate tribunal.”
The same line of thought was pursued in State vs. Trivas, on which we said:
“ The second bill of exceptions retained by the accused, refers to the refusal of the district judge to cause to be reduced to writing the whole evidence of tire two witnesses iir connection with the dying declarations of the deceased. He has caused to be written that part of the testimony which was intended as a basis for the introduction of the statement of Hanna, the victim, and nothing more was necessary.”
In that case, the Court had no occasion to decide, whether a refusal by tiie judge, to permit the testimony intended to establish a basis for the introduction of the dying declarations, to be reduced to writing, was correct or erroneous, because lie had caused the material part of same to [147]*147bo reduced to writing, and to appear in the record, and “nothing more was necessary.” ■ -
But, we take it to be a fair inference from the language quoted, that, had such a question been in the case, the Court would have held that the accused was so entitled, as of right.
Jt seems to be manifest, that, if we have the jurisdictional power to investigate the testimony applicable to collateral questions of law arising in a case, the testimony should be put to record, in some way, and incorporated into the transcript.
Then why should not the accused bo entitled to the full benefit of such evidence ? And how could this be done, if he is not entitled to have it reduced to writing, and annexed to a bill 1
The trial judge can certify his remembrance of the salient facts adduced, but there may be others of equal importance to the accused, of which he might have no recollection at all. Can he be rightfully deprived of them 7 Surely not. But, independent of mere reasoning on the subject, there is a substantial basis upon which the pretensions of the accused are founded, and it is this : this Court has a right to review the rulings of the district judge upon all questions of law arising upon collateral issues during the course of the trial of the accused, and to do so correctly and legally, it is entitled to have before it all the evidence upon which the judge below based his rulings in the premises.
Blit, this proposition may not be conceded, and, lest our opinion be thought to have taken too much for granted, wo will treat it as res nova, and examine it accordingly.
The principle in controversy, in our opinion, rests upon the two following propositions, viz:
1. That the admissibility of dying declarations is a question for the judge, and not for the jury.
2. That this Court has jurisdiction to examine the evidence which is adduced before the trial judge, on collateral issues, in order to decide the questions of law raised on his rulings.'
1. The elementary writers seem to be perfectly in accord on the subject.
Greenleaf, in discussing it, says:
“The circumstances under which the declarations were made, are to be shown to the judge, it being his province, and not that of the jury, to determine whether they are admissible.” 1 Gif. sec. 160.
For this opinion he cites a large number of leading English and. American cases, as authority.
Bishop says “their admissibility depends on the facts, to be ascer[148]*148tamed by the judge from evidence produced before liim, that they were uttered in the solemnity of mind which proceeds from immediate — or impending' — death. In passing on the question of fact, the judge will take into view the sayings and doings, etc.” 1 Bishop Grim. Prac. sec. 1212.
Wharton says “the Court is to decide the question of the admissibility of the declarations, after a full examination of the facts adduced, and which, as far as they go to the question of consciousness of death, are always relevant. Consequently, the truth of the facts put in evidence, to show that the declarations were made in view of speedy death, is matter for the Gouri; and its decision on the facts it finds proven, is a matter of law, and may be reviewed.” Wharton’s Crim. Ev., sec. 297 ; Wharton’s Homicide, sec. 768.
These opinions find ample support in the numerous cases cited bj* their authors.
In Dr. Thompson’s recent treatise on trials, we find the following:
“ So, upon the question whether a declaration of a deseased person is competent as a dying declaration, in a trial of an indictment for murder, it is the duty of the Court to hear evidence by both parties, as to the circumstances under which the declaration was made, and thereupon to determine whether evidence of iv is admissible or not.” Thompson on Trials, sec. 827.
Ever since the Territorial Legislature of 1805 declared that “the method of trial, the rules of evidence, and all other proceedings whatsoever, shall be according to the common law,” such has been the law of Louisiana, as it has been enforced in our jurisprudence ; and, notably, in our own opinions, as for instance, those in State vs. Trivas, supra, and State vs. Molisse, 36 Ann. 920, and State vs. Allen and Carter, 37 Ann. 688.
On this consensus of opinion we may safely rest our conclusions, on this point.
2. The basis of our authority on this proposition is the constitutional provision which confers on this Court “ appellate jurisdiction * * in criminal cases on questions of law alone.” Art. 81.
The same provision was incorporated, for the first time, in the Constitution of 1845, and it has been repeated in all others since. Prior to 1843, appeals were not permitted in criminal cases. During that year the Legislature established a Court of Errors and Appeals, for their review. The statute provided that that Court should “have, only, appellate jurisdiction, with power to review questions of law; which questions shall be presented by bills of exceptions, taken to the opinions of the judge of the lower court, or by assignment of error apparent on [149]*149tile face of the record, taken in the manner and form as now provided by law for appeals in civil cases.”
In the course of the opinion of that court, giving' an interpretation to that statute, it ivas said, in State vs. Adam, 8 R. 571:
“ But it is the duty of the appellant, under the penalty of having his appeal dismissed, to spread upon the record, so much of the testimony as will enable this Court to pronounce, with certainty, whether any error has been committed on the trial in-the lower court. * * * A synopsis of the testimony, so -far as is necessary for the elucidation of the point, should, or ought to be, contained in a bill of exceptions, thus enabling the Court of Appeals to act lcnowinghj in the premises.”
In State vs. Charlot, 8 R. 529, the Court, when again discussing the operation and effect of this law, stated their views even more concisely. They say:
“ Questions of law are so frequently dependent upon the testimony, and so mingled with the facts, that it would, in many instances, be difficult to disconnect them. Wliat would be a correct exercise of the legal discretion of the (lower) court, upon one set of facts, would, on a different hypothesis, when the mass of testimony was of a contrary and different complexion, constitute such a perversion of the legal discretion, as imperiously to require the intervention of this Court.
“Hence the rule adopted in New York, requiring a ease to be made, appears to this Court a salutary and wise rule. Otherwise, in many instances, from the tmldness of the bill of exceptions, this Court could not be sufficiently enlightened to ascertain, with certainty, whether the judge had wisely exercised his discretion or not; and it will scarcely be denied, that as much injury may be inflicted upon the accused, by an improper exercise of this discretionary power, as by the erroneous decision of any point of law which may arise during the trial. * * *
“But to enable this Court to extend relief, it is evident that a ease must be made, and embodied in a bill of exceptions, by which the merits of the decision of the inferior court may be tested. Without this, however erroneous may have been the judgment of the lower court, thi court, not having the means of pronouncing scienter in the premises, would be obliged to refuse relief.”
In the light of these decisions, the objects and purposes to be accomplished by the creation of the Court of Errors and Appeals are manifest; and the method of procedure in the prosecution of appeals thereto is distinctly pointed out.
The Constitution of 1845 having been adopted, the Act of 1843 was therefore repealed, and in lieu thereof the Act of May 31, 1846, was [150]*150passed, one of tlie provisions of which was that appeals in criminal cases might be carried to the Supreme Court, “ as in civil cases.”
In placing an interpretation upon that act our predecessors said, in State vs. Fant, 2 Ann. 837: “ The Constitution confers appellate jurisdiction on this court “in criminal cases on questions of law alone.’ Article 63. These questions should be presented by bills of exception, or assignments of error. The practice, in this respect, stands unaffected by the repealing statute of 1846, and the necessity for observing its results, as a necessary consequence, from the constitutional limitation of. the jurisdiction of this court to questions of la.w, alone.”
That case was followed by that of State vs. Brown, 40 Ann. 505, in which the opinion quoted was strongly re-enforced, the court employing the following language, viz:
“It is well settled in courts of common law that error will not lie upon what is matter of discretion in a court; and it follows that in order to enable a court of appeal, to determine whether a decision of a judge of first instance is, or not, within the legal discretion vested inhim, all, the facts which are material to the discussion, must be presented, in order to enable the appellate court to determine on the legality of the decision on which its judgment is sought.”
Such was the settled construction which was placed upon the Statute of 1843, first, and on the Constitution of 1845, afterwards; and it remained undisturbed by any contrary opinion until tlie year 1850. But during the following twenty years it was modified by differing decisions of this Court, so it became a rule equally well established, that it would examine no question of fact which appertained to the exercise of any discretion, on the part of tlie trial judge, especially with reference to the granting of continuances, and the allowance of new trials, holding that its jurisdiction in criminal oases only extended to “ umnixed questions of law.”
This interpretation was pushed to the extremity of holding, in several cases, that a bill of exceptions detailing the evidence adduced before the trial judge, to serve as a basis for the introduction of dying declarations, “ presented questions of fact, and not of law, alone,” and for that reason the court declined to consider it and decide tlie question of law it tendered. State vs. Ross and Rogers, 18 Ann. 340.
Soon after tlie organization of this Court, under the Constitution of 1879, containing the same provision as that of 1845, the case of State vs. Nelson, cited supra, came up for consideration, in which, after citing numerous decisions of our predecessors, we said:
“ Had that jurisprudence absolutely consecrated the doctrine that the [151]*151Supreme Court lias no power to revise sucli ruling under any contingency, even when the facts are embodied in a bill of exceptions, we would iinhesitatingly decline to countenance it, and would repudiate such doctrine, however ancient. * * * The actions and rulings of judicial officers, presiding over the trial of cases in which the lives and liberties of persons are at stake, should always remain open to criticism, revision and correction by the superior legitimate authority, in proper cases.”
By many, this Court was supposed to have taken, in that case, a new departure, but, it is submitted, on the authorities we have cited, that it was only a return to the ancient landmarks of jurisprudence.
Ever since that opinion was handed down, it has been the leading case on that question, and the doctrine therein announced has been applied, with practical unanimity, in all cases decided thereafter, and in which it was involved; and, among the number, the following may be cited, viz: State vs. Given, 32 Ann. 782; State vs. Redd, do 819; State vs. Ross, do 854; State vs. Hudson, do 1052; State vs. Trivas, do 1086; State vs. Briggs, 34 Ann. 69; State vs. Chatman, do 881; State vs. Bartly, do 149; State vs. Riculfi, 35 Ann. 770; State vs. Jackson, do 760; State vs. Beldin, do 823; State vs. Highland, 36 Ann. 87; State vs. Miller, do 158; State vs. Molisse, do 920; State vs. Reddin, 37 Ann. 780; State vs. Ford, do 443; State vs. Deas, 38 Ann. 581; State vs. Wire, do 684; State vs. Kernan, do 660; State vs. Newhouse, 39 Ann. 862; State vs. Waggoner, do 919; State vs. Hubert, do 319; State vs. Allen and Carter, 37 Ann. 688; State vs. Dorsey, 40 Ann. 740; State vs. Wilson, 40 Ann. 75. Vide Section 9, Act 98 of 1880.
If any question can be considered .as settled by the might oí authority, it is submitted that the one under present consideration has been by those enumerated.
Having, as we confidently believe, clearly proven the correctness of the two propositions as announced sipra, the remaining duty is to state the legal conclusion which is deduciblc therefrom, and that is :
Having the constitutional power to decide questions of law arising in criminal cases, and the right to examine evidence adduced in aid of such decision, we have the corresponding legal right, and constitutional authority to designate the mode in which our jurisdiction may be exercised.
The accused was entitled, as of right, to have the testimony of the witnesses designated reduced to writing, and annexed to a bill of exceptions and brought up with tin; record. This is a wise and conservative rule, and it will equally protect the rights of the State and those of the accused, and it meets our unqualified approval.
[152]*152Tliis ruling will necessitate the removal of the judgment and sentence, and the remanding of the case.
It is, therefore, ordered, adjudged and decreed that the verdict of the jury, and the judgment and sentence thereon pronounced, he set aside, and that the cause bo remanded to the court below for a. new trial according to law, and the views herein expressed.