dissenting.
I cannot bring my mind to the conclusion that this testimony was a part of the res gestee of this transaction.
I know that it is difficult to define, what does always constitute the res gestae — that it is almost impossible always to determine what is precisely the necessary contemporaneousness in the. circumstances or declarations, which it is thought serve to elucidate the main fact under consideration. And that the admissibility of these has to be entrusted very much, as Mr. Greenleaf suggests, (1 Greenl Ev. 108,) to the Judge, “in the exercise of his sound discretion.” But whilst I recognize this difficulty, I think I see, very clearly, where there is no difficulty, and that is in never admitting the dcclara-tions of a party in interest, as part of the res gestee, where .they are not plainly, impulsively made, and where it is not clear that they were made without premeditation or artifice.
Declarations of a party are admitted in evidence as part of the res gestee, only upon the presumption that they elucidate. the facts with which they are connected, having been made without premeditation or artifice, and without a view to the consequences. (1 Stark. Ev. 49. Scaggs vs. The State, 8 Smead. § M. 726.) Where such declarations are merely narrative of a past occurrence, they cannot be received as proof the existence of such occurrence. (1 Greenl. Ev. 110.)
This is certainly a safe and wise rule, if it be safe and wise to exclude hear-say testimony, and the declarations of a par-in interest, as to his own case. And to my mind, it is quite clear that the declarations of the defendant in error, in this case, do not fall within this rule.
It is admitted that the witnesses who speak to these declarations of Powell, did not come up to him after the slave was killed, until some minutes had elapsed. But it is said that Stafford, the principal of these witnesses, must have arrived a very few minutes after the slave’s death — so shortly as to render what the defendant in error- said to him, a part of the *645'transaction. The matter, however, remains in doubt, according to this proposition. It is not entirely clear, that the witness did arrive in a very few minutes after the death of the slave ; and I am strongly impressed with the opinion, that in such a case, the Court should not permit a party to make testimony for himself, unless the transaction and the declarations are clearly shown to be contemporaneous.
It was said that this might have been submitted to the Jury. But it is the province of the Judge to determine what is evidence for the Jury, and especially such evidence as 'this; and he should have fo’tmd it evidence proper for the Jury, as I think, before he submitted it to them.
But if it be admitted that the witness did arrive at the '.place of, homicide only a few minutes after the transaction; .yet, the testimony shows that the defendant had blown his •horn for him, after the killing; had come out from the edge ■of the swamp, where the slave was shot, some thirty or fifty .steps; that some two or three other persons had come to the .spot from a neighboring house or field; all before the arrival of ’the witness, and the statements made to him by the defendant. If, in these few minutes, there was time for all these things to take place, can it be said that there was not time for premeditation and artifice, on the part of the defendant, with a a vieio to the consequences ?
The witness states that a half hour was about the time which had elapsed from his last seeing the defendant ahead of him with the dogs, and his coming up to him at the place of the homicide. If the defendant' and the dogs passed rapidly over the distance between the point where he speaks of seeing the defendant with the dogs, and.the place where the slave was killed, which distance, the witness says, was about one mile and a half, a very small portion of this half hour would have been consumed before the defendant came up with the slave; and the interval between the homicide and the arrival, of the witness would have been considerable. He tells us, that not being able to cross a branch with his mule, ho had to lido round a longer distance than was probably traversed by *646the defendant and the dogs; and he also speaks of having to stop and mend his saddle girth. This is also suggestive of the conclusion, that he did not arrive immediately after the defendant. If, however, the track was winding, and the dogs moved slowly over the space alluded to, the interval of time which elapsed, was, of course, much less. It is impossible to determine this with precision. But it is not necessary, as I insist; for, in my opinion, there are circumstances enough, certainly, to prove that the defendant had abundant time for premeditation and artifice after the homicide, and before the arrival of the witness; and that his statement to that witness was a narrative of a past occurrence.
As I have said, after the killing, and before the arrival of Stafford, the defendant had time to come out from the swamp, some thirty or fifty steps, and to blow his horn for the witness. It seems that there was time for the witness, Stumps, after the transaction, to come to the place from his field, which must have been at' some littlé distance; for he says, that when he got “ within seventy-five yards of the place,” the defendant called to him and asked him to go for a doctor. There was time, too, for one or two other persons to arrive at the place before the witness. If there was time for all these things, there surely was time for the defendant to resort to premeditation and artifice, in view of the consequences.
If, under such circumstances, these declarations be admitted, I do not see what is to prevent any man, who, unseen by others, stains his hands in his brother’s blood, from premeditating his story, and making his own account of the transaction evidence on the trial.
I think the judgment should have been reversed.