Dying declarations are admitted in cases of homicide, both from necessity, and because the near approach of death is supposed to impress the mind with as solemn an obligation to speak the truth, as would the administration of an oath. *384The state of mind of the person making such declarations, is to be regarded ; it must be that he really believes that he is soon to die. Some of the cases directly decide that he must have no hope left of recovery, and such is the general tenor of the books. A late decision in New York, 2 Wheeler’s Crim. Cases 398, People v. Anderson, seems to hold that a mere, faint, lingering hope of recovery should not exclude the declaration. Without entering upon any nice inquiry, whether such a hope may coexist with the settled belief of impending dissolution, we think it best to follow the old and settled rule, that the declarations must be made, under the full and firm belief of near and approaching death.
We may well question whether the solemn impression, which impending death brings upon the mind, would not be materially lessened by any hope of recovery, however slight; 3 C. & P. 598 and 629.
Whether the declarations were made under such belief, is a question for the court to decide. It is not enough that the evidence tends that way. The court may not for that reason admit them, and leave it to the jury to decide whether they will or will not regard them But the court is in the first instance to be satisfied by the proof that the declarations were so made as to justify their introduction as evidence.
In the case at bar, the opinion of the court on this point is not expressed, but the facts are stated, and they remain for us to decide whether in law they are sufficient.
I. As to the declarations to Ann Lyford. They were made on Saturday, and the young girl who made them died on the next Friday. The length of time that elapsed between the declarations and the decease of the person making them, we do not deem a fatal objection. Death may be believed to be imminent, and yet be long deferred. Cases are referred to in the elementary works on criminal law, where “ eleven days ” and “ several weeks ” were not held so great an interval of time as to exclude the evidence. It is the state of mind of the party who makes the declarations, that furnishes the test of admissibility.
She said “ she knew she should die.” Such expressions *385standing alone would ordinarily be entitled to great weight, and warrant the admission of the evidence. They might, however, under some circumstances, be regarded as expressions wrung from a person by physical pain, — or utterances of anxiety and alarm, made to hasten or secure sympathy and aid, rather than the language of real conviction and belief. But here they do not stand alone. She said further, “ that if she lived to get well, she would never go to Mrs. Center’s again.” This expression shows the hope, if not the expectation, of recovery. When taken in connection with the further facts — that the physician was called in on that day for the first time, that he said she was sick of typhoid fever, and that neither he nor others thought her •dangerously sick, we think the evidence ought to have been excluded.
2. The declarations to Ann Lyford, and to her mother, made the day before she died, are objected to upon another ground— that they are too vague, and do not point distinctly to the cause -of her death. We think this objection tenable. To Ann Lyford she said, when asked about the cause of her sickness,— '“that she supposed she had taken cold,” “that if she had minded Mrs. Hoyt and staid at home, she should not have been sick as she was now,” “ that if she lived to get well, she would never go there, (to Mrs. Center’s,) again.” None of these expressions indicate that any such injury had been inflicted upon her as the theory of the prosecution supposes. It is only by remote inference — by conjecture, that they can be made to have even a seeming connection with any wrongful act as the cause of her death. They are entirely consistent with her dying by natural disease — by catching cold, as she said. The last expression, that she would never go there again, may most reasonably refer to her regret at having disobeyed Mrs. Hoyt, and her intention to obey her in future.
When her mother, referring to her sickness and its cause, said to her, “ my stepmother,” one of the respondents, “ is the cause of this,” she said, “ Harry, Harry,” referring to the other respondent. Now if this had been all she said, it would not be unreasonable to understand that she meant that Harry was the cause of this, and thus the declaration, in connection with the *386other evidence, would have been admissible. But the witness says further, “ that was all she said that I could understand,” implying that she said more in the same connection, which she could not understand. Now the rest of the sentence, if it could have been understood, might wholly have exculpated Harry from all connection with the cause of her death. We can not tell what she did say, nor what she meant by the words that were understood. The prisoner is entitled to the benefit of the doubts which thus arise.
The rule that dying declarations should point distinctly to the cause of death, and to the circumstances producing and attending it, is one that should not be relaxed. Declarations at the best are uncertain evidence, liable to be misunderstood, imperfectly remembered, and incorrectly related. As to dying declarations, there can be no cross examination. Tjie condition of the declarant, in his extremity, is often unfavorable to clear recollection, and to the giving of a full and complete account of all the particulars which it might be important to know. Hence all vague and indefinite expressions — all language that does not distinctly point to the cause of death, aDd its attending circumstances, but requires to be aided by inference or supposition, in order to establish facts tending to criminate the respondent, should be held inadmissible.
The conversation between Mr. and Mrs. Center, overheard by a witness who was in an adjoining room, does not belong to that class of confidential communications which the law excludes.
As to the remaining point — the charge of the court as to the negligence which would make the respondents guilty of manslaughter, while engaged in the perpetration of an indecent and immoral act, we are satisfied that it was entirely right. The case of Rex v. Van Butchell, 3 Carr. & P. 629, has no application. That was the case of a physician performing an operation upon a patient, with intent to cure him. He was engaged in a lawful employment, and endeavoring to render a beneficial service to his patient. Here the act was unlawful, if not criminal.
Judgment reversed, and case remanded for a new trial.