(dissenting).
Nurse Brown testified,' in response to a question propounded by the Court during the introduction of the Government’s evidence in rebuttal, “She (Mrs. Shepard) said, ‘Dr. Shepard has poisoned me.’ ” The United States Attorney, apparently believing that such evidence was inadmissible, requested the Court to strike it. Thereupon the Court instructed the jury that the evidence was stricken and withdrawn from their consideration.
The following day the United States Attorney recalled Nurse Brown and undertook to lay a foundation for this evidence as a dying declaration. Nurse Brown testified that Mrs. Shepard on the second day of her illness said “she was not going to get well; she was going to die”; and that on subsequent occasions Mrs. Shepard said “she was going to die.” Following this preliminary evidence, the following proceedings occurred:
“Q. At the time she told you, on the second day that you were there, that she was going to die, did you, at that time and in that connection, have a conversation with her in reference to her condition?
“A. Yes.
“Q. What was it?
“Mr. Kagey: We object to that as hearsay, not made in the presence of defendant, incompetent, irrelevant and immaterial.
“The Court: You may answer.
“Mr. Kagey: We except.
“The Court: Read the question, Mr. Reporter. (Last question read as above recorded.)
“A. She asked me if I would do her a favor. I consented. Then she told me to go to Major Shepard’s room and, in his closet, get a quart whiskey bottle off the shelf.
“Mr. Kagey: What kind of a whiskey bottle?
“The Witness: It was a quart.
“Mr. Kagey: A quart?
“The Witness: Yes-. It was a dark green whiskey bottle, with a whiskey label, which she said was the one—
“Mr. Brewster: Did you make more than one trip before you brought the bottle?
“A. I did.
*687“Q. Go ahead and state what she said to you.
“A. She asked me to smell the contents. I did so. She then asked me if it smelled peculiar. I told her I did not know. She asked how much was in the bottle. I noticed there was not more than a tablespoonful; there was not more than a tablespoonful; and told her. •i. « *
“She said she knew there could not be but a small amount, because the last time she had taken a drink out of that bottle, she made a remark to Major Shepard, that there was not only enough for about one more drink, and she was going to save that until she needed it. She asked if that was enough to test for poison. I told her I did not know.
“Mr. Brewster: Now, go ahead and state what, if anything, she said as to how she took sick, and what she did.
“Mr. Kagey: We object to this as incompetent, irrelevant and immaterial, hearsay, not rebuttal testimony, incompetent, irrelevant and immaterial.
“The Court: She may answer.
“Mr. Kagey: We except.
“A. She stated that this was the bottle from which she drank just before collapsing on the evening of May 20.
“Mr. Brewster: Q. What did she say as to the taste of it the night she took sick, the 20 th?
“Mr. Kagey: Object to this as leading.
“Mr. Brewster: What, if anything?
“Mr. Kagey: Objected to for the further reason that it is hearsay, not rebuttal, a conversation not shown to have been made in the presence of the defendant.
“The Court: You may answer.
“Mr. Kagey: Except.
“A. It was altogether different.
“Mr. Brewster: What did she say ? Give her words.
“A. It was not good.
“Q. Did she say anything about how it tasted ?
“Mr. Kagey: Same objection.
“The Court: You may answer.
“Mr. Kagey: Except.
“A. She said that she was being poisoned.
“Mr. Brewster: What did she say ? Give her words?
“Mr. Kagey: All right; wo object to this, also, as incompetent, irrelevant and immaterial, hearsay, not made in the presence of the defendant, not rebuttal.
“The Court: You may answer.
“Mr. Kagey: Except.
“A. She said: ‘Dr. Shepard has poisoned me.’ ”
To render the statements of Mrs. Shepard admissible as dying declarations, it was essential to show that they were made under a belief of certain and almost immediate dissolution. Mattox v. United States, 146 U. S. 140, 13 S. Ct. 50, 36 L. Ed. 917; Carver v. United States, 160 U. S. 553, 16 S. Ct. 388, 40 L. Ed. 532; Carver v. United States, 164 U. S. 694, 17 S. Ct. 228, 41 L. Ed. 602. Wig-more on Evidence (2d Ed.) §§ 1438-1441.
The Government failed to establish that Mrs. Shepard, at the time she made such statements, believed her death was certain and imminent. The statements, therefore, were not admissible as evidence of the facts stated.
It is my opinion that this evidence was not admissible to show a state of mind for the purpose of refuting other declarations showing a state of mind disposed to suicide.
The existence of a plan or design of a person to do a specific act is relevant to show that the act was done. Such a plan or design may be evidenced by the person’s conduct; and since a plan or design is a state of mind, its presence or absence may be evidenced by the person’s declarations relevant thereto. Mutual Life Ins. Co. v. Hillmon, 145 U. S. 285, 12 S. Ct. 909, 36 L. Ed. 706; Kerr v. Modern Woodmen of America (C. C. A. 8) 117 F. 593; Farrar v. Locomotive Engineers’ Mutual L. & A. Ins. Association, 143 Minn. 468, 173 N. W. 705; Wigmore on Evidence (2d Ed.) Vol. 3, § 1725. But such declarations are competent to show only the mental state of the person, and not the facts stated in the declaration. In re Carson’s Estate, 184 Cal. 437, 194 P. 5, 17 A. L. R. 239; In re Calkins’ Estate 112 Cal. 296, 44 P. 577, Therefore, where the declaration is a narration of a past event, it is not admissible as proof that such event happened unless it is part of tile res gesta) or a dying declaration. In re Calkins’ Estate supra; Shailer v. Bumstead, 99 Mass. 112; Potter v. Baldwin, 133 Mass. 427; Waterman v. Whitney, 11 N. Y. 157, 168, 62 Am. Dec. 71; Marx v. McGlynn, 88 N. Y. 357, 374; Bush v. Bush, 87 Mo. 480; Griffith v. Diffenderffer, 50 Md. 466.
A person disposed to commit suicide is as susceptible of being murdered as one not so disposed. Therefore, the statement that the defendant poisoned Mrs. Shepard, or that she believed that he poisoned her, would not refute the fact that she intended to commit sui*688eide. It would only show that she did not carry out any such intention. It would in no wise indicate her state of mind with respect to suicide. Its sole probative value was as evidence of the faets stated. In other words, to have any relevancy, it would have to be considered by the jury as evidence of a substantive fact, and not of a mere state of mind.
Clearly neither Mrs. Shepard’s opinion as to the cause of her death, nor her statements as to the .cause of her death—foundation for their admission as dying declarations being absent—were admissible to prove that the defendant murdered her, and therefore she did not commit suieide.
While a statement that she desired to live, that she had future plans whieh she desired to carry out, or like declarations by Mrs.. Shepard would have indicated a’present state of mind not disposed to suieide and would have been admissible to show such state of mind, a mere narration of past events not inconsistent with a disposition to commit suieide did not show a state of mind with respect to suieide and was-inadmissible for any purpose.
Furthermore, since such statements are not made in court and the deelarant is not subjected-, to the test of cross-examination, they, should only be admitted where the faets bring- ¡them within the Necessity principle, and'there are circumstantial guarantees of trustworthiness.' .Wigmdre bn Evidence (2d Ed.1) vol. 3, §§ 1725, 1714, 1421, and 1422. While the facts in the instant ease bring the declarations within the Necessity principle, such guarantees are not present. The statements occurred after the cause of Mrs. Shepard’s death had been set in motion. They were not in the nature of verbal acts indicating a present state of mind, but were a narration'of past events.. Had she taken'poison with suicidal intent,, she might have been disposed tó' conceal it,' and 'it would have been no' more than a human failing to have laid it at the door of her husband, for whom she ' had' confessedly Ipst all love and respect. At the-time-they'were-made she was ill, her mental condition was abnormal, and there was no showing that she believed- her death was certain and imminent. The facts, instead of indicating the presence of circumstantial guarantees of trustworthiness, east doubt'upon the reliability of the statements: There^fpr,e, -even, if such declarations tended to show the- state of Mrs. Shepard’s mind, they were inadmissible. , .Wigmpre on Evidence (2d; Ed.) vol. 3, § Í722. -
But if such declaration's were admissible, not as evidence of the-faets stated'but to show Mrs. Shepard’s state of mind to rebut any inference of suieide from other statements she had made, it was the duty of the Court to so limit them by proper instructions. Minner v. United States (C. C. A. 10) 57 F.(2d) 506; Wilson v. State, 37 Tex. Cr. R. 373, 35 S. W. 390, 38 S. W. 624, 39 S. W. 373; Maines v. State, 23 Tex. App. 576, 5 S. W. 123, 125. In the latter case the court said: “The general rule is ‘that whenever extraneous matter is admitted in evidence for a specific purpose, incidental to, but which is not admissible directly to prove, the main -issue, and whieh might tend, if not explained, to exercise a strong, undue, or improper influence upon the jury as to the main issue, injurious and prejudicial to the rights of a party; then it becomes the imperative duty of the court in its charge to so limit and restrict it as that such unwarranted results cannot- ensue; and a failure to do so will be radical and revisable error, even though the charge be not excepted to.’ ” The majority say the failure to give such instruction was waived by the omission of defendant’s counsel to request it, and by their failure to except to the charge as given.
They undertake to distinguish the instant case from the Minner Case by saying that the record in the latter case was long and involved. With all deference to the majority, the record in this case* is larger and more involved than was the record in the Minner Case.
That a defendant may be “waived” into the penitentiary for life is repugnant -to my conception of justice.
Furthermore, since the evidence was offered and admitted as dying declarations, that is, as proof of the substantive fact, and not to show a state of mind, it is apparent such a request or objection would have been futile. An instruction so limiting it would have been inconsistent with the theory upon whieh it was offered and received. ;
However, even if this court is not bound to notice such error, our rules provide and we have held that it may not do so.
In Bogileno v. United States (C. C. A. 10) 38 F.(2d) 584, 587, the court said:
“We recognize the general rule that a complaining party must call the attention of the'court to any claimed error in the trial proceedings at the time it occurs, and if he fails to do so an appellate court will'not, usually, consider; such claims, although the errors complained of are clearly prejudicial. # if? #
“ ‘But there is an exception to this rule as *689well established, as just and equitable, as the rule itself. It is that in criminal cases, involving the life or liberty of- the accused, the appellate courts of the United States may notice and correct, in the interest of a just enforcement of the law, serious errors in the trial of their cases, fatal to the defendant’s rights, although these errors were not challenged or reserved by objections, exceptions, or assignments of error.’ ”
In New York Cent. R. Co. v. Johnson, 279 U. S. 310, 49 S. Ct. 300, 303, 73 L. Ed. 706, the court said:
“The state, whose interest it is the duty of court and counsel alike to uphold, is concerned that every litigation be fairly and impartially conducted. * * * The public interest requires that the court of its own motion, as is its power and duty, protect suitors in their right to a verdict, uninfluenced by the appeals of counsel to passion or prejudice. * * * Where such paramount considerations are involved, the failure of counsel to particularize an exception will not preclude this court from correcting the error.”
See, also, Lamento v. United States (C. C. A. 8) 4 F.(2d) 901, 904; Van Gorder v. United States (C. C. A. 8) 21 F.(2d) 939; Crawford v. United States, 212 U. S. 183, 194, 29 S. Ct. 260, 53 L. Ed. 465, 15 Ann. Cas. 392.
There was evidence that shortly after Mrs. Shepard became ill she developed a severe ease of Vincent’s angina (Trench Mouth), and that a major in the Dental Corps of the United States Army, of broad experience in the treatment of that disease, diagnosed it as such and prescribed a mouthwash containing mercuric chloride, and that she used about five pints of such mouthwash. The history of her ease indicates she received -the mercury in small quantities over a period of time and not in one lethal dose, and reputable medical experts testified she might have absorbed it through the membrane of the mouth in sufficient amounts to have caused her death. There was other evidence tending to show that Mrs. Shepard may have taken bichloride of mercury accidentally, or with suicidal intent. It is a well known modieal fact that acute nephritis is always present in eases of bichloride of mercury poisoning, and the autopsy disclosed little, if any, inflammation of the kidneys. The absence of nephritis makes it doubtful that Mrs. Shepard received sufficient quantities of the mercury to have caused her death. In view of these facts, it cannot be said that the proof of guilt was conclusive.
The statements of Mrs. Shepard, admitted broadly as evidence of the facts stated, undoubtedly were largely responsible for the jury’s verdict of guilty.
I think the admission of the declarations for any purpose was error. But, if they were admissible for a limited purpose, it was error not to confine the jury’s consideration thereof to that limited purpose by proper instructions. Such error was not negative like a mere failure to instruct upon a point, but positive in that the jury was permitted to consider the evidence as proof of a fact of which it was no proof.
For these reasons I am of the opinion that the defendant should be granted a new trial.