Such declarations are inadmissible when the witness does not pretend to give either the words or substance of what the deceased said, or all that he said; State v. Johnson, 118 Mo. 491, 24 S. W. 229, 40 Am. St. Rep. 405. The admissibility of the declaration is not affected by the fact that subsequently to their being made and before death the de clarant entertained a belief in recovery; 14 Cox, Cr. Cas. 565, 28 Engl. Rep. 587, and note; State v. Shaffer, 23 Or. 555, 32 Pac. 545.
Dying declarations must be confined to the statement of facts, not conclusions; State v. Horn, 204 Mo. 528, 103 S. W. 69; or opinions; State v. Horn, 204 Mo. 528, 103 S. W. 69 (where a statement that declarant shot the accused in self-defense was ex cluded as a mere conclusion); although it is to be noted that the application of the "opinion rule" to such declarations has been vigorously disputed; 2 Wigm. Ey. § It is also to be noted that the controvers9 usually turns on whether the expression used is fact or opinion.
The admission of dying declarations has been uniformly held not to contravene the constitutional right of the accused to be confronted with the witnesses against him; Mattox v. U. S., 156 U. S. 237, 243, 15 Sup. Ct. 337, 39 L. Ed. 409 ; Brown v. Com., 73 Pa. 321, 13 Am. Rep. 740 ; State v. Dickin son, 41 Wis. 299 ; Robbins v. State, 8 Ohio St. 131; Com. v. Carey, 12 Cush. (Mass.) 246; 2 Wigm. Ev. § 1398, and note, citing the cases.
They are admitted either for or against the accused ; Mattox v. U. S., 146 U. S. 140, 13 Sup. Ct. 50, 36 L. Ed. 917; State v. Saun ders, 14 Or. 300, 12 Pac. 441.
It has been held that they may be dis credited by evidence of previous contradic tory statements ; State v. Lodge, 9 Houst. (Del.) 542, 33 Atl. 312 ; but with expresSions of doubt and one judge dissenting, and the case has been criticised; 9 Harv. L. Rev. 432.
For full discussion of dying declarations and collections of cases, see 2 Wigm. Ev. §§ 1430-1451; 56 L. R. A. 353, note; also an article by Wilbur Larremore urging that their admission should be abolished by stat ute; 41 Am. L. Rev. 660.
Other Declarations. Declarations as to the physical or mental condition of the declarant are sometimes admitted as an ex ception to the rule against hearsay, as the natural and necessary evidence of bodily or mental feelings, where those are material as facts to be proved. The underlying prin
ciple is thus expressed by Mellish, L. J., in the St. Leonard's Will case: "Whenever it is material to prove the state of a person's mind, or what was passing in it, and what were his intentions, then you may prove what he said, because that is the only means by which you can find out what his inten tions were." L. R. 1 P. Div. 154, 251. Thus such declarations as to one's own physical condition, as of the existence of pain, have been admitted in a suit by declarant be cause, as it was said, they "in their very nature must be evidence, though emanating from the party himself who seeks to prove them in his own favor" ; Phillips v. Kelly, 29 Ala. 628. Exclamations of pain and suf fering were held properly admitted because "this is the natural and ordinary mode in which physical pain and suffering are made known to others, and the only mode by which their nature and extent can be as certained"; Hyatt v. Adams, 16 Mich. 180. which was an action against a surgeon for malpractice causing death. Such declara tions or exclamations are admitted when made to a physician in the course of treat ment; State v. Gedicke, 43 N. J. L. 86; but not when he was "called in, not to give medical aid, but to make up medical testi mony," and the time was post titem motaim; Grand Rapids & T. R. Co. v. Huntley, 38 Mich. 537, 31 Am. Rep. 321; Consolidated Traction Co. v. Lambertson, 60 N. J. L. 452, 38 Atl. 683, where declarations were held clearly incompetent, though even under such circumstances natural expressions of pres ent pain might not be.
It is suggested in a note on the last two cases that such testimony is admissible without the qualifications of being made to a physician and before the controversy arose; 11 Harv. L. Rev. 467. As to the former point the Alabama case sustains the contention, but the tendency is to extend the cases to which the post stem motam rule is to be applied and, as appears infra, its limitations are too narrowly stated in the note cited. In the Michigan case, Judge Christiancy leaves the question open wheth er it applies to this class of cases.