I am unable to agree to the conclusion reached by my fellow members of the Court because I do not construe the phrase "you should not further consider it as a dying declaration" to be an imperative instruction to set aside the court's judgment as to the admissibility of the evidence as *Page 67 a dying declaration if the jury should believe that the statement was made by the deceased without consciousness on his part of impending death, but rather that in such case the jury in the exercise of their duty to judge of the credibility of the evidence need not consider it as having been made under the sanctity of a situation deemed to be equivalent to an oath.
The phrase "dying declaration" as used in the requested instruction did not carry the technical significance which it has in the law of evidence, but to the jury it meant that while the court had admitted the evidence its credibility was for the jury to determine in the light of their opinion as to whether the statement had in fact been made as a "dying" statement, or the statement of a person dying who was conscious of the fact.
No proposition similar to that contained in the requested instruction was embraced in the general charge nor was any reference made by the court to the dying declaration admitted in evidence. While the question of the admissibility of dying declarations is one of mixed law and fact and solely within the province of the court, see Green v. State, 43 Fla. 552, 30 South. Rep. 798; Dixon v. State, 13 Fla. 636; Richard v. State,supra, and the responsibility of determining the question preliminarily cannot be shifted upon the jury, Roten and Thompson v. State, 31 Fla. 514, 12 So. R. 910, yet it is undoubtedly true that the jury in considering the question of the defendant's guilt may, where dying declarations have been admitted and constitute part of the case against the accused, consider the circumstances under which the alleged declarations were made with the view of satisfying themselves whether in fact the person making the dying statement was in the article of death, or was not conscious of his condition at the time, or *Page 68 the statement as claimed to be made was the true statement made.
The jury are the judges of the weight of the evidence; the credibility of the witnesses. The jury are not bound to accept the statement shown to have been made as true in point of fact because the court has held it to be admissible. One of the important considerations which affect the value of the declaration as trustworthy evidence is whether the declarant realized his condition to be a serious one and that death was impending. It is a matter which goes to its credibility at that stage of the proceeding and not to its admissibility.
The reason for the rule admitting dying declarations is that the serious or grave situation of the declarant assures the same degree of credibility to his statements as if they were made under oath at the trial and the accused had the opportunity to cross-examine him.
It is very easy to understand that a jury might not be able to draw the distinction between the admissibility and credibility of the evidence, mistaking the order of the court upon its admissibility as tantamount to an opinion that it should be believed. The subject has been very fully discussed by many courts and text writers and the conclusion almost invariably reached that the court should instruct the jury under what circumstances it may consider or refuse to consider the testimony so admitted. See Commonwealth v. Brewer, 164 Mass., 577, 42 N.E. R. 92; State v. Phillips, 118 Iowa 660, 92 N.W. R. 876; State v. Reed, 53 Kan., 767, 37 Pac. R. 174, 42 Am. St. R. 322; State v. Banister, 35 S.C. 290, 14 S.E. R. 678; North v. People, 139 Ill. 81, 28 N.E. R. 966; Commonwealth v. Murray, 2 Ashm. (Pa.) 41.
I think the instruction should have been given and that its refusal was a substantial error because if the jury had discovered any reason for discrediting the dying declaration *Page 69 it was have left the case for the State practically without support except for the testimony of the fourteen-year-old sister who said that she overheard Soles say to Ruby Long that he shot Clifford Long, which standing alone and unexplained might have been deemed insufficient to produce an abiding conviction to a moral certainty in the minds of the jury as to the guilt of the accused.
I think the judgment should be reversed.