In my opinion, the alleged dying declaration was not admissible. The state undertook to prove the dying declaration alone by the witness Mackie. The direct and cross-examination of the witness Mackie, construed together, demonstrated, beyond question, it seems to me, that the statement of the deceased that the two Wade negroes had shot and killed him, and his request that a doctor be sent for to attend him, was all one connected conversation between the deceased and the witness Mackie. The pertinent part of the cross-examination follows:
"Q. Then what did you ask Jones, if anything? A. The first question I asked him?
"Q. Yes. A. I asked him who shot him.
"Q. What did he say to you? A. Lou Arthur Wade and Will Wade.
"Q. What else did he say? A. He asked me to phone his wife, and I think a young fellow named Will Owens came in my gate, and I asked him to get his wife.
"Q. Did he ask you to phone for the doctor? A. Yes, sir."
The alleged dying declaration was made some minutes after the shooting. Jones, the deceased, had gone into his pressing shop and left his pistol, and had walked about one and one-half blocks to the home of the witness Mackie.
A dying declaring is unsworn, hearsay testimony. Being without the sanctity of the usual oath, the law requires *Page 487 that the declarant must believe that the finger of death is upon him; that there is no hope of recovery, however small, and this must be proven to the trial court to a moral certainty, and beyond every reasonable doubt, before the alleged dying declaration is admissible before a jury. McNeal v. State,115 Miss. 678, 76 So. 625. Our court, in several decisions, has laid down the following principles governing the admissibility of alleged dying declarations: There must be an undoubted belief existing in the mind of the declarant, at the time of the alleged dying declaration, that death is impending; that there is no hope whatever of recovery. If it appear, in any manner, that there was hope of recovery, however faint, it may have been still lingering in the breast of the declarant, then the sanctity is gone, and the declaration is not admissible. Bell v. State, 72 Miss. 507, 17 So. 232; Sparks v. State, 113 Miss. 266, 74 So. 123;McNeal v. State, supra; Haney v. State, 129 Miss. 486, 92 So. 627; Lea v. State, 138 Miss. 761, 103 So. 368; Fannie v. State, 101 Miss. 378, 58 So. 2.
In the Bell case, the court held that, in order to render a dying declaration admissible in evidence, there must have existed in the mind of the declarant a settled belief of impending death, and that the mere fact that the declarant stated such belief was not conclusive of its existence. In the McNeal case, the alleged dying declaration was to this effect: Deceased stated that defendant came and persuaded him off, and shot him without cause, and that "now they had got him." And the witness testified that, during conscious intervals, the deceased prayed the Lord to help him, and said the Lord had helped him once before when he had prayed to Him; that about an hour after this statement was made the deceased told the witness that he (deceased) was going to die. The court held that the alleged dying declaration was inadmissible.
In the Haney case, the alleged dying declaration was made only a minute or two after the shooting in the absence *Page 488 of defendant. The alleged dying declaration was to the effect, that the accused shot the declarant, and shot him for nothing, and made a request that some one "pray for me." The court held that such alleged dying declaration failed to meet the requirements of law; that the request by declarant that some one pray for him was indication of a hope of recovery.
In the Lea case, the deceased lingered about thirty days, and then died from a wound inflicted by defendant. During that period the deceased several times stated that he had no hope of recovery, but, immediately before making the alleged dying declaration, he was asked how he felt, and replied that he felt very well. He was then told by his nurse that there was no hope of his recovery; that he would probably die during the day, to which he replied, "I reckon so." His nurse then stated to him in that connection that a declaration from him as to the facts of the homicide might be appreciated by his loved ones, in reply to which he said that he would make the statement later. Immediately thereafter he made a statement as to the facts of the homicide, which was taken down by his nurse without his knowledge. The court held that such alleged dying declaration was incompetent; that the evidence failed to show that the declarant was without any hope whatever of recovery.
In the Fannie case, the alleged dying declaration was in this language: "`Come carry me back to the doctor, I am shot to death.' And, while they were looking for the doctor, said: `I am going to die. Make haste and get the doctor. I am bleeding to death. I am going to die. Don't bother me and get the doctor.' And again: `Make haste, Mamma, and get the doctor, I am going to die.'"
The court held that the dying declaration was inadmissible.
It is stated in 30 C.J., section 504, pp. 265, 256, that the mere fact that the declarant said he would die does not necessarily show that he is without hope, or that he *Page 489 expects a speedy dissolution, and that such statement may be overcome by the surrounding circumstances.
When the witness Mackie was told by Jones, the deceased, that the Wade negroes had shot and killed him, the deceased, doubtless, intended to convey the idea that he thought he was going to die. But merely thinking he was going to die was not sufficient. He must have thought it so strongly as to exclude every hope of recovery, however faint. His asking the witness, Mackie, to send for the doctor, to say the least, I think, raises a reasonable doubt as to whether the deceased was without hope. If he was without hope, why did he want a doctor?
ETHRIDGE, J., joins in this dissent.