DISSENTING OPINION.
Eakin, J.Concurring fully with my associates upon all other points, and being, like them, indubitably satisfied of the guilt of the appellant, I am, nevertheless, unable to approve the admission of the dying declarations of the murdered man.
It would serve no useful purpose to discuss the grounds upon which dying declarations are admitted, or how the practice may be reconciled with the constitutional right of the accused to meet the witnesses face to face upon the trial. It is fixed now, beyond question, that in cases of homicide they are admissible, if made as to facts, under circumstances of known impending death, by the dying person, with regard to the agency of .the mortal injury.
Tet it is known and felt, by jurists, that they contravene all the reasons by which hearsay is excluded; that they are often made in the midst of perilous and agitating circumstances ; often under the blinding influences of hate and passion; often when the failing physical powers should make us distrust the full coherence of mental ideas ; rarely cool, deliberate and circumstantial, and always without the highest crucial test of truth, the power of cross-examination. They are apt to be made before, and repeated by, ignorant persons, who are not used to analyze the language of others, or measure their own. The idea that the awful sense of the future life, and the loss of all interests in this, is equivalent to the obligation of an oath, was only a theory, which has been abandoned by men who know the world ; and, even if it were true, there is still an absolution from all punishment for perjury, a more potent incentive to truth. Indeed, their admission in the exceptional case of homicide, and total exclusion in all other cases, civil or criminal, is an anomaly of the common law, which can have no logical justification but necessity. It is simply thought that the protection of society requires it. I can not say that it does not. But I am deeply impressed with a conviction of the danger which may lie on the other side— the conviction of the innocent — if this branch of evidence be not confined within strict limits, and, where it is not competent, excluded wholly from the jury.
Let us not confuse competency with credibility or weight. The latter is for the jury alone. The former is determined, by the court as a preliminary question, and, in determining it, the court has the same power to consider surrounding circumstances as the jury has after it is admitted.
The whole of the dying declaration is given by the court. So far as it affects defendant, it is in the simple words, “Nick Walker shot me.” It is conceded that, if it were an opinion, it should have been excluded. It was admissible only on the ground that it was a statement of a fact within the knowledge of the declarant.
So bold a statement of a general fact does not imply personal knowledge of the circumstantial facts. It is the language of a belief, as well as of personal knowledge — the natural and usual expression of a mental conviction, however derived. Standing alone and unexplained, it has been held, as the court shows, to be prima facie, a statement implying personal knowledge. I doubt whether this be a reasonable position; but, even if it were, the court shows that it has been held judicially, also, that it may be explained by qualifications showing that it was, indeed, a mere conviction of the mind. There is, generally, no opportunity for the cross-examination of a dying man on behalf of the.person charged with the death. No qualifications can, at the time, be asked by him; and the bystanders are not apt to worry the dying man with cross-interrogations. Who knows but if the deceased had been then asked if he saw his slayer, or heard his voice, he would have answered “No ! but I do not doubt it was he that did it.”
In forming an estimate of the declaration I think the honorable Circuit Judge had the power to consider the surrounding circumstances, to determine whether the deceased meant to assert a fact within his knowledge, or a mere mental conviction, which should be excluded from the jury, just as he should determine from the circumstances whether the declarations were made in view of impending death. I think, too, he might, in doing this, avail himself of his ordinary knowledge of human affairs as freely as a jury might in determining matters committed to them. It does not seem proper, in such cases, to leave it to the jury to determine first whether the statement was an expression of an opinion or a matter of personal knowledge; and then, if they found the latter, to consider its weight. When admitted, it goes at once as a statement of a fact, and leaves the jury only to determine its credibility and weight. Eor facts alone, whether testified to directly or brought in by dying declarations, are all that they can consider.
When, on the trial, exceptions were taken to this evidence, it had already been proven by the State herself that the deceased had been shot through an auger-hole in a door, whilst sitting at a table a few feet away, singing over a ham-bone which he was eating. That it wás dark out of doors ; that he fell at once unconscious ; that there were two other persons in the room, lying in the bed, wide awake, and observing what was going on, and that neither of them, testifying fully ,as they did, and minutely as to the circumstances, give any intimation of any voice or sound, or opening of the door, even for a moment, to enable any one to peer into the darkness. I think we may all judge of the meaning of an auger-hole, and the size, even a large one, through a door. It is not in the ordinary course of human affairs to use other than carpenters’ augers for holes in doors. The usual purpose in humble dwellings is to afford a fastening for a chain, which requires only a small orifice; If the deceased at the time had personal knowledge that Walker shot him, he must have seen and recognized him through this auger-hole, looking out into the darkness from his position where he sat eating and singing over a ham-bone, with his head turned away. For he was not shot in the front, but in the side of the head.
I conceive this utterly impossible to the human faculties. The deceased coaid not have had any evidence of any of his senses that it was Nick Walker who fired the shot. Circumstances made this as strong as if he had added, “but I did not see him.” It is easy enough to understand why the deceased made the assertion. He had a bitter quarrel with Walker about a prostitute. Immediately after the shooting public attention was fixed on Walker, who was arrested and in custody for the crime. No doubt the committing trial had been had, and the evidence taken, before the declaration was made. It was on the evening of his death, and he lived about nine days. What was in everybody’s mouth was a certainty in his mind. He knew Nick Walker had shot him, and naturally said so. It was an opinion, nevertheless, and should not have gone to the jury.
The opinion of the court, just rendered, is final. The case can never go to another jury, and I have, therefore, no hesitation in saying, as an individual, that my conviction of Nick Walker’s guilt is as firm as his victim’s could be. It is shown, beyond all question, by the other evidence in the case. But we can not look into the minds of jurors to speak for them, and, in my view, his Honor, the Circuit Judge, was mistaken in allowing this particular item of evidence to be added to the others, and I have felt it my duty, under the law, to express my dissent from a ruling which, I fear, may become a dangerous precedent.
If the guilt of Nick Walker can be made plain by unexceptionable evidence, the mere delay in the execution of a criminal would be more than compensated to society by preserving the certainty and consistency of our rules of evidence; and hy the assurance which every person may have, that, if indicted for crime, the courts will see to it that competent evidence alone shall he brought against him, however convincing other circumstances may be. If any difference he proper, the strictness of the rule should be in proportion to the atrocity of the crime. If it can not be made otherwise plain, he ought not to be convicted. I would much prefer to direct a new trial.
With regard to a technical point of practice, I may add that I think the bill of exceptions shows, although informally, that defendant excepted to the evidence of the dying declarations upon the trial, and made their admission one of the grounds of his motion for a new trial. This, I think, in a matter involving life, should be enough to enable us to consider of any error.