The evidence to show that the deceased came to her death from the effects of arsenic taken into her stomach was quite satisfactory; and there was strong reason to believe that she swallowed a portion of this poison during her absence from the house in Duane-street, between Saturday evening and Sunday morning. If, during that absence, she was in the company of the prisoner, the latter had an opportunity to administer it to her in food or drink. His subsequent conduct was such as to attach suspicion to him, and to lead to the belief, *600more or less strong, that, if she was poisoned during that absence, he was guilty of the act, provided it was made to appear that he had an opportunity of committing it. Hence it was an important fact l'or the prosecution to establish that these persons met together while the deceased was abroad on Saturday night. It was competent to show this by the evidence of persons who saw them in each other’s company; or it might have been proved by the prisoner’s confession. There was some evidence of the latter character; for the prisoner was proved to have asserted that the deceased did not indulge in drinking while she was away from home, at the time referred to, a fact which he could scarcely have known except by having been with her. Although the inference from this declaration was pretty strong, and might have enabled the jury to find the fact, it was not of such a conclusive character as to preclude other testimony upon the point, and the prosecution sought to furnish such other evidence by proving the declaration of the deceased, of her intention to go to her husband, when she set ■out from home on Saturday evening. The question to be determined is, whether that declaration was competent to be given in evidence.
The evidence of the witness Mary Campbell, of what the deceased said, after her return, as to her having been with her husband, was not objected to. It was, however, clearly incompetent. It was not admissible as a dying declaration; for although the deceased returned very ill, there is no evidence, nor any reason to believe, that she apprehended a fatal result. The circumstance that it was received without objection, and that' it tended even more strongly to show the existence of tlje material fact sought to be proven than the declaration which was objected against, does not relieve us from the duty of examining the validity of that objection. The jury may have disregarded the incompetent declarations made by the deceased after her return, and have relied upon the proof of her declared design on setting out, which the court had held to be competent; or the ruling of the court, admitting her declaration last mentioned to be received; may have led them to the belief that all her declarations which were- proved were competent. We must therefore determine whether the decision of *601the court below, admitting proof of the statement that she was going to see her husband, when she left the house on Saturday-night, was correct or not. It was attempted, on the argument, to be sustained as a declaration characterizing an act, and constituting, in legal understanding, part of the act itself. This is a recognized exception to the rule excluding hearsay as evidence ; for when it is necessary, in the course of a cause, to inquire into the nature of a particular act, or the intention of the person who did the act, proof of what the person said at the time of doing it is admissible in evidence for the purpose of showing its true character. 1 Phil, on Mo. 231, Gould’s ed. But to render the declaration competent, the act with which it is connected should be pertinent to the issue; for where the act is in its own nature irrelevant, and when the declaration is por so incompetent, the union of the two will not render the declaration admissible. Wright v. Doe, 7 Ad. & M. 289. The material fact here was, that the prisoner and the deceased were together on Saturday night. Even this was not a principal fact, but only a circumstance to show that the prisoner had an opportunity to commit the offense. That the deceased left the house m Duane-street at a particular time was of no materiality, unless it was also shown that during her absence she met the defendant. The act itself was indifferent to the issue, whatever the intention was with which it was done. If the deceased met the prisoner, and thus afforded an opportunity of committing the offense, it is immaterial whether she intended or expected to meet him or not; and so, of course, if she failed to meet him he could not properly be prejudiced by the circumstance that she went out with a design to go to him. The evidence was not offered to qualify an act connected with the issue, but to induce the jury to infer another act not otherwise shown to exist: that of his being in company ívith the deceased. Suppose a declaration had been made by the deceased, on the previous day, of an intention to go to her husband on that particular evening; such declaration, being unaccompanied by any act, would rest wholly in assertion, and would be clearly without the rule referred to; yet the proof would be essentially of the same character, and subject to no greater objections than the evidence we are considering. I am *602of opinion, therefore, that the ease was not within the rule admitting a declaration accompanying an act, on the ground of its bemg a part of the res gestee ; and I know of no other ground upon which the case can be taken out of the general rule which excludes, under the name of hearsay, declarations not made under the responsibility of an oath.
Enough has been said to show that the judgment of the supreme court ought to be affirmed.
TJpon a second trial the question will again arise as to the admissibility of the evidence showing that arsenic was found in the bowl which was examined by the chemist. We have looked carefully into the evidence of identity, and are of opinion that it was sufficient to authorize the court to submit the question to the jury.
The judgment of the supreme court must be affirmed.
Hand, J.The proof of what the deceased said when she was leaving the house of Mrs. Campbell was not admissible. It was no part of the res gestee, for it was no part of the principal transaction, not contemporaneous, or even incidental to it. It was spoken at a time previous to any part of the transaction constituting the supposed offense, and in the absence of the prisoner, and when the deceased had no apprehension of danger, and much less was she in extremis.
I see no objection to the testimony in relation to the bowl or its contents. Whether the evidence was sufficient to identify the former, or show what constituted the latter, were questions for the jury, and the proof given on these points was competent for their consideration. Ho one portion of it, or that given by one witness, might have been sufficient; but all of it together might be, and the prosecution was not obliged to give conclusive proof at every step.
It was also competent for the prosecution to prove that the prisoner had made payments upon the paper produced in court.
That was a mere circumstance, and the production of the paper and such proof did not contravene any rule of evidence in relation to the proof of written instruments.
But the recognizance itself was given in evidence without any proof of its execution, except what appeared upon the- face *603of the instrument, and the testimony of an agent of the governors of the alms-house that the prisoner had made payments upon it. I am inclined to the opinion this was not sufficient. A recognizance is said to be a matter of record. 1 Chit. Crim. L. 90; People v. Kane, 4 Dan. 530. But this was taken before a police justice in the city of Hew York, under the statute in relation to disorderly persons, and is but an acknowledgment, upon which, perhaps, a record might be made up. It does not appear to have been filed with any officer, and there was no proof of its execution, nor of the identity of the persons recognized, except by the payments. Using one’s own affidavit in a cause may sometimes be sufficient evidence of identity as against the party making it; but, as a general rule, even an affidavit cannot be given in evidence, at least before it is filed with the proper officer, without some proof. 1 Chit. Crim. L. 576; 1 Phil, on Ev. 379; Bellinger v. People, 8 Wend. 598; Rex v. Smith, 1 Stra. 126; 2 Cow. & E. 1100. This recognizance must have been introduced for the purpose of showing an inducement to commit the crime, or that difficulties had existed between the husband and wife. It purported to have been signed by the prisoner and another, and to have been taken before an officer; but it would be dangerous, especially in a capital case, to admit such a document without any proof whatever.
However, it is not necessary to pursue this point further, as the admission of evidence of what the deceased said before the commission of the supposed offense clearly entitled the prisoner to a new trial, and the supreme court was therefore right in reversing the judgment on that point.
The judgment should be affirmed.
A majority of the judges concurred.
Judgment affirmed.