Bob Battle was indicted for murder, in Crawford superior court, for killing Nelson Jackson; he was found guilty, and, under the recommendation of the jury, sentenced to serve in the penitentiary for life. . Defendant moved for a new trial, on several grounds, which was overruled by the court, and he excepted, and the case is brought here on those exceptions.
There are but two exceptions insisted upon in this court:
(1.) That the court erred in admitting the dying declarations of the deceased in evidence.
1. These declarations were properly admitted under our law and the various rulings of this court It is doubtful if they were admissible, originally,' at common law. The English judges admitted such evidence, originally, with great caution, and then only from necessity, and when declarant was in extremis, with a full knowledge of his condition, such condition being equivalent in its solemnities to the sanction of an oath; but it has always been considered that this rule was a departure from the general rule excluding hearsay evidence ; and while the circumstances under which the declaration was made were considered equivalent to an oath, yet these circumstances furnish no equivalent to the defendant for his right of cross-examination; Originally this testimony was resorted to from necessity, but now it may be had, notwithstanding there may be abundant *104evidence as to the homicide and the circumstances attending it. Whereas the judges at one time admitted this evidence with great caution and hesitation, now it seems to be resorted to by the prosecuting officers and admitted as a matter of course, provided the statute be complied with.
(2.) The next ground of the motion for new trial insisted on here is, that the court erred in rejecting the testimony of several witnesses to prove the sayings of the deceased after he was cut; that “ if they had not caught the ax which he had, as he drew it back to strike Bob, they would have had to carry him off in a wagon, as he intended to kill him, and would have done so.”
2. It has been held at the common law that the accused could prove the general bad character of the deceased, that he was unworthy of belief, and any other matter which might legitimately affect the credit of his statement. Why can it not be shown that he made a statement or statements at different times different, from his (lying declaration ? If a witness is sought to be impeached as to a statement made under oath by showing he has made statements previously not under oath different from the statement deposed to, this has always been allowed, if the witness’s attention is called to the time, place and circumstances under which the former statements were made. It cannot be easily seen, if the dying declarations of the deceased, made exparte in the presence of his own friends and relatives, and notin the presence of the accused or his friends, without a cross-examination, and testified to by his friends and relatives, are to be admitted against the accused from the necessity of the case, why the declarations of the deceased, after the mortal blow is given, to other persons and at other times, different from the dying declarations, should not be admitted in evidence to impeach the dying statement. If the one is admitted contrary to the general rule, why should not the other be likewise admitted ? The former is admitted in favor of public justice, why not the latter in favor of life *105and liberty ? The main objection urged to its admissibility is that the attention of the deceased was not called to the time, place and circumstances under which the statements were made, but a sufficient reply to this is that the necessity of the case, the declarant being dead, makes this impossible ; it stands on a like necesssity as the admission of dying declarations. If public policy requires the admission of dying declarations in advancement of public j ustice, the like policy requires the admission of different statements of the accused at different times in favor of life and liberty. See 10 Cal., 36; 21 Cal, 368; Roscoe’s Crim. Ev., 36; Wharton Crim. Ev., 298; 9 Yerger, 278, 280; 25 Mich., 405; Arch. Crim. Pl. and Pr., 434; 43 Ga., 238.
It is to be admitted that none of these authorities are fully up to this point, except the 10 and 21 Cal. R., above cited, and it is to bo conceded that there are decisions the other way. But when it is considered that the prosecuting officers of the state, on all occasions when they can, put in the dying declarations of deceased persons, whether there be a necessity for it or not, it is but right that the accused should have whatever benefit he may derive from contrary statements of the deceased.
The judgment of the court below should be reversed.
Judgment reversed.
- Hall, Justice, concurred, but furnished no written opinion. Jackson, Chief Justice, dissented, but furnished no written opinion.