(Dissenting). I. I am not convinced of the soundness of that branch of the opinion dealing with the admissibility of the admissions, declarations or confessions made by Yon Kutzlaben, and, although the time is short for a full investigation and discussion of the subject, I am convinced that' the majority, while stating the rules adopted by the great majority of the courts, have followed a very small minority and enunciated a doctrine which, carried to its logical conclusions, will admit all declarations made by a stranger against his interest, even though it be in the form of a confession, whenever, for any reason, it is either impossible or inconvenient to take his testimony, although he be alive; thus giving effect to hearsay testimony, which, of course, is not under oath, and without any opportunity to cross-examine the declarant.
Let me say first that the discussion of the majority is broader than the question presented. The sole question here is, Is testimony as to the statements made by Von Kutzlaben, a stranger to this case, admissible purely upon the ground that they were declarations against interest? Authorities regarding the admission of testimony once taken under oath, with full privilege of cross-examination, where the person giving the testimony is not available as a witness by reason of death, absence from the jurisdiction of the trial court, etc., are not in point; for in such cases, the only proposition involved is *406whether or not such testimony, already taken under the sane-, tion of an oath, and with full cross-examination, may, in a subsequent trial, be treated as a deposition; and in such cases it matters not whether the witness’ testimony be for or against his interest. The sole question here is, other things being conceded, Is his testimony material and relevant to the issues, and competent to prove them? The introduction into the opinion, of authorities upon this proposition gives us no help, and is liable to lead us astray in deciding the real question involved, to wit, What is essential to the admission of testimony as declarations against interest, such testimony being without the sanction of an oath, and without the usual right of cross-examination ?
Testimony as to statements and declarations made by a stranger to a suit is clearly hearsay, and must be excluded unless it falls within some exception to the rule; and to come within the exception, the conditions for admission must be strictly complied with. As said by Judge Dillon, in Mahaska County v. Ingalls, 16 Iowa 81, the case so frequently referred to by the majority:
“It is the just observation of one of the most learned as well as experienced of American jurists, that ‘ The rules of evidence are of great importance, and cannot be departed from without endangering private as well as public rights. Courts are therefore extremely cautious in the introduction of any new doctrines of evidence which trench upon old and established principles.’ Per Story, J., in Nicholls v. Webb, 8 Wheat. 332.
“This species of evidence being somewhat anomalous in its character, and standing on the ultima thule of competent testimony, is not highly favored by the courts, and the tendency is rather to restrict than to enlarge the right to receive it, or at least to require the evidence to be brought clearly within all the conditions requisite for its reception. ’ ’
As announced by the English courts, where the rule originated, it was essential: (1) That the declarant be dead — and *407to this there have never been any exceptions by the courts of the mother country; (2) that the declaration be against the pecuniary or proprietary interest of the declarant — and, as a rule, confessions of crime or declarations which might create a civil or criminal liability were not admitted. These propositions are conceded by the majority, but, notwithstanding, some other exceptions adopted by a very few courts are treated as the equivalent of death, and these exceptions, if once introduced into the body of our law, must'be carried to their logical conclusion, and in the future held to cover all cases where, for any reason, the testimony of the declarant cannot be had for the trial.
Must the declarant be dead ? The rule is, Yes. Shall we introduce something else? This question was first answered by Lord Ellenborough, in Harrison v. Blades, 3 Camp. 457, 458, in this way:
"No case has gone so far and I am afraid to establish a precedent. It is difficult to determine when a patient is past all hopes of cure. If such a relaxation of the rules of evidence were permitted, there would be sudden indispositions and recoveries.”
Where the question has come before the courts of this country, the same result was reached. Currier v. Gale, 14 Gray (Mass.) 504; Rand v. Dodge, 17 N. H. 343; Jones v. Henry, 84 N. C. 320; Churchill v. Smith, 16 Vt. 560; Miller v. Wood, 44 Vt. 378; Lowry v. Moss, 1 Strob. (S. C.) 63; Buchanan v. Moore, 10 S. & R. (Pa.) 275; Carpenter v. Hatch (N. H.), 15 Atl. 219; Baker v. Taylor (Minn.), 55 N. W. 823; Fitch v. Chapman, 10 Conn. 8; Humes v. O ’Bryan, 74 Ala. 64. In some of the cases, the declarant was insane; in others he was beyond the jurisdiction of the courts; in others, too ill to attend trial; and in one, stricken with apoplexy so that he could not speak. In but one case to which my attention has been called has a different rule been held, and that is Griffith v. Sauls (Tex.), 14 S. W. 230. That ease was decided without any apparent investigation of the authorities, for none are *408cited, or relied upon in support of the opinion. In our own case of Mahaska County v. Ingalls, supra, Judge Dillon says that absence from the jurisdiction of the court will not answer, citing Brewster v. Doane, 2 Hill (N. Y.) 537; Moore v. Andrews, 5 Port. (Ala.) 107. True, he adds:
“We need only say that probably the courts would not be inclined to relax the rule so as to dispense with this condition (death) unless it might be in the case of confirmed insanity.”
Surely this is not a decision that insanity is the equivalent of death, and even this guarded expression says “confirmed insanity.”
As said by my brother Preston, in his dissent, even if we were to recognize insanity as the equivalent of death, it must be confirmed insanity, and here there is no proof that Yon Kutzlaben is a confirmed lunatic in the sense that he was unable to understand the nature and character of an oath. He has been released by a court, and by a proper board of insanity, is now at large, and there is no showing as to the nature of his mental disease when declared insane. As I understand it, in the celebrated Thaw case, it was contended that, as Thaw was the inmate of an insane asylum in the state of New York, this was a conclusive determination that he was so insane that he could not be guilty of a conspiracy to procure his escape. Although I have not seen the opinion of the Supreme Court of the United States, I understand that this position was declared untenable, and Thaw was sent to New York for a trial, where the question of his insanity as applied to the charge might be investigated.
In this state, every human being of sufficient capacity to understand the nature of an oath is a competent witness. When was it determined that Von Kutzlaben did not have capacity to understand the nafure of an oath ? That question could only be determined by the trial court before whom it was proposed to introduce his testimony, and it has never been determined, nor could it be until he was called to give evidence in some case; for it is his capacity at that time and as to a *409particular matter that is to be inquired into. This has never been done, and it seems to me that, conceding his insanity as to certain things, there is nothing here to show that the degree of his insanity is the same as if he were dead — that is to say, that he was unable to take an oath, and therefore as dead as if he were in his grave.
It should be stated that, since writing the foregoing, I have discovered another case which seems to hold with the majority, but that ease is also authority for the proposition that inability to produce the declarant’s testimony from any cause, as absence from jurisdiction, physical or mental incapacity, assurance that the witness would claim his privilege, or immunity from giving testimony, is the equivalent of death. Logically this is true, but none of the members of this court are prepared to go to this extent. The line must be drawn somewhere, and I think that it is safer to announce the one generally adhered to, that the declarant must be physically dead. Once say that something else is the equivalent, there is no stopping.
In Hutchinson v. Watkins, 17 Iowa 475, this court excluded testimony as to declarations because the declarant was alive, within the reach of a subpoena, and competent to testify.
II. Again, the declaration must be against the pecuniary or proprietary interest of the declarant. That the confession or declaration here involved was not against the declarant’s proprietary interest is, of course, true, and the question remains, Was it against his pecuniary interest? It is everywhere held, as I understand it, that confessions of a crime made by one, which, of course, are against his interest, are not admissible. When this matter was first broached in England, Lord Brougham said:
“To say, if a man should confess a felony for which he would be liable to prosecution, that therefore, the instant the grave closes over him, all that was said by him is to be taken as evidence in every action and prosecution against another *410person, is one of the most monstrous and untenable propositions that can be advanced.” Sussex Peerage case, 11 Clark & F. 85; Smith v. Blakey, L. R. 2 Q. B. (1866-1867) 326.
See, also, Davis v. Lloyd, 1 Car. & K. 275, 276.
The following American cases are also to the same effect: People v. Hall (Cal.), 30 Pac. 7; Commonwealth v. Chance, 174 Mass. 245; Benton v. Starr (Conn.), 20 Atl. 450; Farrell v. Weitz, 160 Mass. 288; Ayer v. Colgrove, 81 Hun. 322; Penner v. Cooper, 4 Munf. (Va.) 458.
There is some conflict in the decisions on this point, and one case seems to hold that, if the admission made by the declarant might have been sufficient to justify a recovery against him in'a civil suit, this is sufficient to satisfy the requirement that it was against interest. See Halvorsen v. Lumber Co., referred to by the majority. I am not prepared to sa.y that this is the only case so holding, and I concede that there is a conflict upon the proposition; but, notwithstanding, we held at an early day that declarations which, if true, might be used as evidence against one in a civil case for tort, are not declarations against pecuniary interest. That ease is Ibbitson v. Brown, 5 Iowa 532, which has never been doubted or challenged since its announcement.
Quite in point on this proposition, I think, is the rule that a defendant charged with crime cannot introduce in his defense the confession made by another, then deceased, that he had committed the offense with which defendant was charged, which confession or admission would or might have made him liable in tort as well as criminally responsible. This is held by practically all the cases: Davis v. Commonwealth, 95 Ky. 19 (23 S. W. 585); State v. West (La.), 12 So. 7; Commonwealth v. Chabbock, 1 Mass. 143; Helm v. State (Miss.), 7 So. 487.
Again, we have held that a defendant charged with murder could not introduce in his defense a statement of the deceased that he (defendant) was in no way to blame. State v. Sale, 119 Iowa 1.
*411Whilst I do not regard this proposition as decisive of the question here being argued, I cite it as opposed to the doctrine of State v. Alcorn, 7 Ida. 599 (64 Pac. 1014), relied upon by the majority. Other cases support State v. Sale, supra. They are cited in 4 Chamberlayne on Evidence, See. 2779. The list includes cases from nearly every state, and shows the trend of the authorities.
Georgia R. Co. v. Fitzgerald, 108 Ga. 507, cited by the majority, announces a doctrine which I do not think the majority approve. It is this: '
“ ‘Self-disserving’ declarations made by a deceased person having peculiar opportunities to know the truth as to the matter under investigation may be proved even in eases between third parties, none of whom claim under or through him.”
If there be any such rule of evidence, I confess that I have not been able to find it announced in any other decision. Self-serving declarations are never admissible, as I understand it, unless part of the res gestae, no matter whether made by a third person or a party to a suit.
In Walker v. Brantner, 59 Kas. 117 (52 Pac. 80), the declarations admitted were of the deceased husband of the plaintiff in a suit brought by the wife for damages due to the death of the husband. It is difficult to see on what theory these were admitted, as against his (declarant’s) pecuniary or proprietary interest. They were doubtless admissible, if at all, as part of the res gestae, or as of one in privity with the plaintiff. I see no reason for departing from the rule announced in State v. Sale. It has the great weight of authority in its support.
In Mahaska County v. Ingalls, supra, the effect of the admission was that declarant had in his possession certain money which he had taken from the county, from which a promise would be implied on his part to return the same, and from which the inference would arise that in the amount of the money thus taken, he had a pecuniary or proprietary interest.
*412In Moehn v. Moehn, 105 Iowa 710, cited by the majority, the declarations of a deceased payee and indorser of a note that the note had not been paid were held inadmissible as a declaration against interest, in the absence of proof that the maker was insolvent.
In Ellis v. Newell, 120 Iowa 71, also relied upon by the majority, the declarations of a deceased donor, made subsequently to a gift and not a part of the res gestae, to the effect that the conveyance was intended as a gift, and not as an advancement, were held inadmissible, as not being against his pecuniary interest, following Westcott v. Westcott, 75 Iowa 628.
In this connection, a distinction must be made between ordinary declarations, and entries or other writings of deceased persons in the course of business. This latter is covered by statute. Code Sec. 4622.
A very pretty question will arise upon a retrial of this case, if one be had, if it be shown on that trial that Von Kutzlaben was insane when he made the declarations. If the majority is correct, his declarations cannot be received in evidence at all, because of his being a lunatic. Whereas, according to at least one case, declarations made by an infant, who was not permitted to testify on the trial of a case because he did not understand the nature of an oath, were permitted to be shown as admissions against interest. See Atchison, T. & S. F. R. Co. v. Potter (Kans.), 72 Am. St. 385.
I admit that there is considerable confusion in the cases upon the proposition now being considered, due to the failure of courts to observe the distinction between admissions .and confessions, declarations explanatory of possession, dying declarations, declarations or statements which were a part of the res gestae, and declarations in form of testimony given in a prior proceeding, the witness having died after his testimony was taken; and entries made by a deceased person in the course of his business, as books of account, or as a public official.
The question before us is clear and distinct. Was the *413testimony as to what Yon Kutzlaben said admissible as a declaration against interest ? After as careful an investigation as I have been able to make in a limited time, I think that the testimony was inadmissible.
In view of the concurring opinion written by brother Salinger, since this dissent was prepared, it seems appropriate to make some further observations in an attempt to clarify the law.
In the first place, the argument for the establishment of a new rule of evidence, based upon the decision in the Mentzer case, which applied old principles to new situations due to changes in the industrial and commercial world — changes not foreseen or to be reasonably apprehended when another basic rule was established — is rather a forced analogy. Damages for mental anguish had always been allowed before the Morse invention, and when a telegraph company failed in its duty, either arising out of contract or one imposed by law, the question of the measure of damages of necessity became a new question, upon which either the rule to award damages for mental anguish or to deny them might be established. It was the opinion of this court that, following old and established principles, damages for mental anguish might be allowed. Other courts were of contrary opinion, and no recent count of eases has been made on this proposition. One thing may safely be assumed from the establishment of the rule for this state: that telegraph companies have been more diligent in doing their duty with reference to death messages; and it may also be noticed that the apprehended flood of litigation from the establishment of the rule has not occurred. In the instant case, for more than a century there never has been any doubt about the rule as to declarations against interest, until not more than two courts in this country, apparently without consideration of authorities, announced another rule with reference thereto. One of these cases is so thoroughly discredited in both the majority and. concurring opinions that it is no longer a staff upon which to lean; and the other, as an examination will *414show, is so poorly considered that it, too, affords feeble support.
It is to be noted that no new conditions have arisen, calling for a different rule of evidence. From the time of its original pronouncement, witnesses were bound to die, were likely to become insane, or to be stricken with apoplexy, or to go beyond the seas, or to be ill. None of these things are of modern invention, and the reasons for their inclusion, as exceptions to the hearsay rule, were quite as potent as in this day and age of the world.
The substantive law must, if it is to meet the needs of a changing civilization, of the progress of events of the industrial evolution and revolution, continue to grow and to expand. The adjective and remedial law, being in their essence either analysis or logic, must also grow; but in this growth it can never get away from established principles, except by legislative enactment.
The fundamental rules of evidence should be stable; for, after all is said, they are the only safeguards to the ascertainment of truth in a judicial investigation. So that every circumstance which the majority now considers as having a bearing upon what the rules and exceptions to the hearsay rule should be were just as clear to the judges who established them as they are to us. At this point, it is well to recall Judge Dillon’s reference to the dangers to be apprehended in departing from well-settled rules of evidence.
It is not clear whether the author of the concurring opinion is announcing the rule that everyone committed to a state hospital for the insane is presumed to be there for confirmed insanity, is totally insane, and incompetent to be sworn as a witness, — which presumption cannot be rebutted by showing that, notwithstanding the adjudication, he does in fact understand the nature and obligation of an oath, — or whether it is a rebuttable presumption which is subject to proof as to the fact of his competency. Again, it is difficult to understand whether the majority of the court means to hold that *415one adjudged insane is conclusively presumed to be incompetent to give testimony. The majority uses the words “total insanity” and “confirmed insanity” as the same thing. I do not think they are the same, although the majority is doubtless logical in saying that insanity established is confirmed, and, being confirmed, is total. Total insanity means, to my mind, utter, absolute insanity; the equivalent of imbecility or idiocy. It seems to me that it must be this to be the equivalent of death. What is there in this record to show any such degree of insanity? Nothing but a record that Von Kutzlaben was insane and ordered committed until he became sane. Nothing more was determined than that he was a fit subject for confinement in the hospital until he became sane. He was then released on habeas corpus and sent to the Jones County board of insane commissioners for hearing, and, upon that hearing, it was found that it was safe for him to be discharged; but he was ordered taken and delivered to the custody of his mother; and the record shows that this confirmed lunatic, this man who is the same as dead, is now. at large, residing either in Chicago, or at some place in New Jersey. I do not think that there is any finding anywhere that he is, or at any time was, the same as dead, mentally incompetent to give testimony, or that he was ever adjudged to be totally insane.
To cap the climax at this point, it appears that the defendant, through its counsel, sued out papers to take the testimony of this witness, went to Anamosa, had him sworn as a witness, and would undoubtedly have taken his full deposition, but was thwarted in its efforts to do so, because this witness, on advice of counsel, claimed his privilege, on the ground that answers might tend to incriminate him. This attempt to take the deposition was in July, 1907, and the confession was made in March of the year 1905. It seems, then, that the real reason for claiming that his confession is admissible is because he voluntarily, when sane, closed his mouth *416on advice of counsel, which he had the right to do, and no power on earth could compel him to open it.
Although the majority says that he was then sane, he was dead so far as that no power could make him speak. Is this the equivalent of death ? To be logical, the majority must so affirm, and this is really what I understand the opinions to hold; for, no matter what his condition thereafter, sane or insane, it is not his insanity which prevented defendant from getting his testimony,
Where is the finding that, when the declaration was offered in evidence, the witness Von Kutzlaben, who had then been discharged both by a court on habeas corpus and by the board of insane commissioners, was then at liberty and not in the custody of anyone, was then totally insane, to the same extent as if he were dead, and could not speak? Does the majority hold that, because a witness claims his privilege from testifying, his declarations against interest may be received as if he were dead? There is more reason for so saying than to affirm that, as he is insane, and although he may speak and testify, his declaration against interest may be received. Especially where defendant undertook to get his deposition, thus affirming his sanity, but was prevented because the witness claimed his privilege.
Again, it seems to me that the majority is bound to say that one found to be insane, no matter what the degree of his insanity in fact, is conclusively presumed to be incompetent, and therefore cannot be permitted to even take an oath, or that the presumption is rebuttable, and if rebuttable, it then becomes a question of fact as to whether or not he was in fact of sufficient capacity to understand the nature and obligation of an oath, with nothing more, at best, than a mere rebut-table presumption of incompeteney. If the majority insists upon the former rule, then I most emphatically dissent. If the latter, then it must be conceded that the question of the admissibility of the evidence was primarily for the court, and there was testimony to sustain the ruling. If the ruling was *417correct, it matters not on what ground it was placed, and the objection to the testimony was sufficient to justify the trial court in sustaining it on the ground suggested.. As already noted, at one time the defendant itself conceded that the witness was competent to testify. It had him sworn, and proceeded as far as it could in taking his testimony, and is now complaining in this very case because plaintiff's counsel suggested to the witness that he should not answer some of the questions propounded. It thus appears that the witness is not only at large, having the same liberty as normal persons, but, in addition, there is a judicial and semi-judicial finding that he should be discharged from custody, and that it was safe for him to be at large, and the further fact that at one time defendant itself had him sworn as a witness, and is now complaining because he was not permitted to testify. It was not insanity which closed his mouth.
In the face of this record, what becomes of the presumption that he was an incompetent witness, totally insane, and dead to the world ?
On other matters, I concur with Justice Preston, and would affirm.