Tbe first exception relates to tbe admission of statements by tbe deceased as dying declarations. Tbe testimony tends to show that tbe attending physician was called professionally to see deceased on tbe 7th day of May, 1891, immediately after tbe fatal shot was fired. Tbe physician testifies that deceased “was suffering very much, and was then in a dying condition;” “that be died at 6 o’clock A. M. on May 9th, 1891; that it was hardly two days from tbe time be was first called; that be told deceased that be was going to die.” "With tbe exception of a description of tbe wound, and that it caused tbe death of White, tbe deceased, tbe foregoing statement contains tbe entire predicate upon which the declarations were admitted. Before declarations of deceased are entitled to be received in evidence as dying declarations, it must appear that declarant, at tbe time they were made, was impressed with tbe belief that death was impending and would certainly ensue. It is not necessary to their admissibility, in point of fact, that they be made in articulo mortis, and that dissolution resulted immediately afterwards, but declarant' must be impressed with tbe conviction that be can not possibly recover. Hammil v. The State, 90 Ala. 580; Pulliam v. State, 88 Ala. 3; Reynolds v. State, 68 Ala. 506; Wharton on Ev., §§ 282, 286; 1 Greenl., § 158. Tbe facts and circumstances testified to by tbe physician, and tbe statement made by tbe physician to deceased, were all legitimate for tbe consideration of tbe court, which must determine tbe admissibility of tbe evidence. — Faire v. State, 58 Ala. 80. We fail to discover anything in bis testimony, or elsewhere in tbe record, which indicates directly the state of mind of tbe deceased, at tbe time tbe declarations were made. After laying tbe predicate as we have stated it, tbe witness says: ‘ “I asked deceased who shot him, and deceased replied that Bob Young shot him; that be got into a quarrel, and got scared and ran; that be did not have a knife.” We can not say from tbe statement óf tbe physician here detailed, that at tbe time deceased made tbe statements testified to be bad given up all hope of recovery. It nowhere appears that deceased expressed tbe belief that be was mortally wounded, and there is nothing to show that bis confidence in tbe opinion of bis physician was of that degree that an expression' of opinion by him to tbe deceased, that be “was going to die,” *8was of itself sufficient to convince tlie deceased of its truth. It was not necessary to render them admissible that deceased should have expressed the conviction that he would not recover; and an expression to this effect would not necessarily make them competent. The court must consider all the circumstances attending- the declarations, and if from them all the fair and reasonable inference arises that de-clarant was convinced in his own mind that his wound was mortal, that death was impending, his declarations are entitled to be considered in evidence.— Willis v. State, 74 Ala. 24; 58 Ala. 80, supra. We think a just and salutary administration of the law requires that courts should have due regard to the rules and limitations placed upon declarations made by a person in the absence of the defendant against whom they are offered in evidence, and in regard to which he has had no opportunity to cross-examine declarant, before they can be regarded as dying declarations, and thus become admissible against him. We find in the record another statement by the deceased, to-wit: “that he would get even with him [referring to the defendant] when he got up.” No question is raised on this latter statement, and it is not shown at what period of his illness the declaration was made; and we refer to it simply to show that, notwithstanding the wound and the suffering of deceased, he expected to “get up.” We do not think the predicate in this case was sufficient to authorize the introduction of the statements of deceased as dying declarations.
We find no error in the first charge given by the court defining murder. It is unnecessary to consider the other charges given, which undertake to define murder in the first degree. The defendant was convicted of murder in the second degree, and can not be re-tried for a higher offense than that for which he was convicted. There was no error in refusing the charges asked by the defendant. All oi them are objectionable, and, with the exception of the one numbered 7, ignore certain facts testified to by witnesses examined on the part of the State, from which, if believed, the jury might infer that the defendant was not free from fault m bringing on the difficulty. The definition given to a reasonable doubt, in charge number 7, finds no warrant in any decision of this court.
Eor the error in admitting the dying declarations, the case must be reversed and remanded.