Dying declarations, made in cases of homi cide where the death of the deceased is the subject of the charge and the circumstances of the death are the subject of the dying declarations, are admissible; 2 B. & C. 605; 2 Mood. & R. 53; Jackson v. Kniffen, 2 Johns. (N. Y.) 31, 3 Am. Dec. 390; Wilson v. Boerene, 15 Johns. (N. Y.) 286; Anthony v. State, Meigs (Tenn.) 265, 33 Am. Dec. 143; if made under a sense of impending death ; 2 Leach 563; Montgomery v. State, 11 Ohio 424; Dunn v. State, 2 Ark. 229, 35 Am. Dec. 54; Com. v. McPike, 3 Cush. (Mass.) 181, 50 Am. Dec. 727; Smith v. State, 9 Humphr. (Tenn.) 9; Logan v. State, id. 24; State v. Untie, 115 Mo. 452, 22 S. W. 378; State v. Aldrich, 50 Kan. 666, 32 Pac. 408; Wallace v. State, 90 Ga. 117, 15 S. E. 700; .State v. Cronin, 64 Conn. 293, 29 Atl. 536. And see 3 C. & P. 269; 6 id. 386; Vass v. Com., 3 Leigh (Va.) 786, 24 Am. Dec. 695; State v. Poll, 8 N. C. 442, 9 Am. Dec. 655 ; State v. Whitson, 111 N. C. 695, 16 S. E. 332; King v. State, 91 Tenn. 617, 20 S. W. 169; Mattox v. U. S., 146 U. S. 140, 13 Sup. Ct. 50, 36 L. Ed. 917. Ordinarily they are admissible only in trials for homicide of the declarant, but they have been admitted on trial for attempted abortion on the woman who made them; State v. Meyer, 65 N. J. L. 237, 47 Att. 486, 86 Am. St. Rep. 634; Montgomery v. State, 80 Ind. 338, 41 Am. Rep. 815, where the question is discussed at large and the conclusion reached that because death resulted and that fact entered into the statutory crime, they were admissi ble. It was held otherwise in People v. Davis, 56 N. Y. 95, and in State v. Harper, 35 Ohic St. 78, 35 Am. Rep. 596, such dec larations were excluded because, although the woman died, her death was not the sub ject of the charge. The declarations must have been made by the person alleged to have been murdered; State v. Bohan, 15 Kan. 418 ; Brown v. Com., 73 Pa. 321, 13 Am. Rep. 740, where husband and wife were .killed and it was held error to admit dec larations of the latter on trial for murder of the former ; but it has also been held that, where two or more were killed at the same time, declarations of one were admis sible at the trial for the murder of the oth er ; State v. Terrell, 12 Rich. (S. C.), 321; 2 Moo. & Rob. 53. In the Pennsylvania case the court distinguished it from these cases, "supposing them to be good law." The dec larations must be connected with the death which is the subject of the trial; People v. Wong Chuey, 117 Cal. 624, 49 Pac. 833; and must concern the res not previous relations; People v. Smith, 172 N. Y. 242, 64 N. E. 814. They must be made under an actual apprehension of impending death ; People v. Evans, 40 Hun (N. Y.) 492; People v. Brecht, 120 App. Div. 769, 105 N. Y. Supp. 436 (in both of which statements were rejected because declarants had not wholly abandoned hope); State v. Hennessy, 29 Nev. 320, 90 Pac. 221, 13 Ann. Cas. 1122 (where they were admitted) ; after hope of recovery is gone; Small v. Corn., 91 Pa. 304 ; and even a faint hope excludes them; Com. v. Roberts, 108 Mass. 296; People v. Gray, 61 Cal. 164, 44 Am. Rep. 549 ; but subsequent lingering, with some expression of hope, does not, if at the time they were made there was no hope; Swisher v. Com., 26 Gratt. (Va.) 963, 21 Am. Dec. 330. A statement made in writ ing before hope was abandoned and confirm ed afterwards was admissible; Wilson v. Com., 60 S. W. 400, 22 Ky. L. Rep. 1251; State v. McEvoy, 9 S. C. 208. The fear of death need not be expressed to the person who receives the declaration, if its existence is otherwise established ; Worthington v. State, 92 Md. 222, 48 Atl. 355, 56 L. R. A. 353, 84 Am. St. Rep. 506. A statement re duced to writing may be supplemented by others made orally at the same time; Herd v. State, 43 Tex. Cr. R. 575, 67 S. W. 495 (criticised, 11 Y. L. J. 430); contra; 1 Str. 499; Whart. Horn. § 766; Gr. Ev. § 160.
Although the time elapsing between the declarations and death is proper to be con sidered, they will not be made inadmissible by a few subsequent hours of life ; People v. Weaver, 108 Mich. 649, 66 N. W. 567 ; State v. Reed, 53 Kan. 767, 37 Pac. 174, 42 Am.
St. Rep. 322; or even some days; 6 C. & P. 386 ; Com. v. Haney, 127 Mass. 455; Jones v. State, 71 Ind. 66; State v. Jones, 38 La. Ann. 702; Baxter v. State, 15 Lea (Tenn.)
657; State v. Yee Wee, 7 Idaho, 188, 61 Pac. 588.
It is not necessary that the declarant state that he is expecting immediate death; it is enough if, from all the circumstances, it sat isfactorily appears that such was the condi tion of his mind at the time of the declara tions; State v. Wilson, 24 Kan. 189, 36 Am. Rep. 257; but there must be a belief that there is no hope of recovery ; Com. v. Roberts, 108 Mass. 296; People v. Brecht, 120 App. Div. 769, 105 N. Y. Supp. 436; State v. Welsor, 117 Mo. 570, 21 S. W. 443 ; 65 J. P. 426; 67 id. 151, where the expres sion "I'm dying" was used and the declara tions were excluded, while in 71 id. 152, the same expression was used and they were ad mitted; as they were also when declarant said he did not know what expectation of recovery he had; State v. Thompson, 49 Or. 46, 88 Pac. 583, 124 Am. St. Rep. 1015. The belief that death is inevitable supplies the place of an oath ; Tracy v. People, 97 Ill. 106 ; People v. Sanford, 43 Cal. 29; Dixon v. State, 13 Fla. 636. Accordingly, although the common law rule was said to require that declarant should have a belief in God and a future state; 1 Str. 499; 17 Y. L. J. 403; that rule was considered abrogated in the cases just cited and the want of such belief has been held to be no ground for ex cluding declarations; State v. Hood, 63 W. Va. 182, 59 S. E. 971, 15 L. R. A. (N. S.) 448, 129 Am. St. Rep. 964; while other cases hold otherwise, though belief is presumed until the contrary is proved; Donnelly v. State, 26 N. J. L. 463 ; but if admitted in such case, they should not be relied on; State v. Elliott, 45 Ia. 486. Reckless and profane language will not render declara tions inadmissible; Kirby v. State, 151 Ala. 66, 44 South. 38; but will affect their credi bility; Nesbit v. State, 43 Ga. 238; and cross examination will be allowed as to that, as being material in showing both a reckless and irreverent state of mind and hostility towards the accused ; Tracy v. People, 97 III. 105.
The declaration may have been made by signs; 1 Greenl. Ev. § 161 b ; and in answer to questions; 7 C. & P. 238; 2 Leach 563; Vass v. Com., 3 Leigh (Va.) 786, 24 Am. Dec. 695. They may be in writing; State v. Kin dle, 47 Ohio St. 358, 24 N. E. 485; King v. State, 91 Tenn. 617, 20 S. W. 169. The sub stance only need be given by the witness; Montgomery v. State, 11 Ohio, 424; Ward v. State, 8 Blackf. (Ind.) 101; but the declara tion must have been complete; Vass v. Com., 3 Leigh (Va.) 786, 24 Am. Dec. 695; Mattox v. U. S., 146 U. S. 140, 13 Sup. Ct. 50, 36 L. Ed. 917; and the circumstances under which it was made must be shown to the court; 3 C. & P. 629; 7 id. 187; State v. Poll, 8 N. C. 444, 9 Am. Dec. 655; Hill v. Corn., 2 Gratt. (Va.) 594; McDaniel v. State, 8 Smedes & M. (Miss.) .401, 47 Am. Dec. 93.
It is for the court to determine whether the preliminary conditions make the evi dence admissible; State v. Cronin, 64 Conn. 293, 29 Atl. 536; State v. Doris, 51 Or. 136, 94 Pac. 44, 16 L. R. A. (N. S.) 660; and this includes the question of impending death; Roten v. State, 31 Fla. 514, 12 South. 910; 1 Stark. 521, and note (where the case of Rex v. Woodcock, Leach 593, contra, is dis credited); People v. Smith, 104 N. Y. 491, 504, 10 N. E. 873, 58 Am. Rep. 537; and this decision of the court comprises both fact and law, as to the first of which it is final and as to the second subject to review; State v. Williams, 67 N. C. 12; Com. v. Bishop, 165 Mass. 148, 42 N. E. 560 (Holmes, C. J.); but having been admitted, the weight of the evidence is for the jury; State v. Sexton, 147 Mo. 89, 48 S. W. 452; and this includes consideration of the circumstances under which they were made; Bush v. State, 109 Ga. 120, 34 S. E. 298; State v. Phillips, 118 Ia. 660, 92 N. W. 876; and it is error to charge that they should be treated as of the same weight and value as evidence pro duced under the usual tests and safeguards; People v. Kraft, 148 N. Y. 631, 43 N. E. 80. The conclusions of the trial court, as to the admissibility of the declarations, should not be disturbed unless it is manifest that the facts did not warrant them; Gipe v. State, 165 Ind. 433, 75 N. E. 881, 1 L. R. A. (N. S.) 419, 112 Am. St. Rep. 238; Swisher v. Com., 26 Gratt. (Va.) 963, 21 Am. Rep. 330.