On Application for Rehearing.
Blanchard, J.On the night of December 31, 1897, Peter Miller was shot and mortally wounded. He was conveyed to the Charity Hospital and died there three days later. Subsequent to the shooting on the night of December 31st, he was visited by Police Captain Joumee, whose object was to acquire information relative to the shooting, who did it, etc., the better to enable him to discharge his duty as an officer of the law in the discovery and apprehension of the guilty parties.
Miller at that time believed himself to be in a dying condition and' the statements then and there made by him to Journee were, on the trial, admitted as evidence to the jury on the ground that the same were dying declarations.
This was stoutly resisted by counsel for the accused, who contended the proof was not sufficient to establish that Miller made the statements under the sense of impending dissolution, and to the adverse ruling of the trial judge, reserved a bill of exceptions.
This ruling we held, in the previous opinion handed down, to be correct and now reaffirm the same.
The accused had not then been arrested, were not in custody and were not present at tha* meeting between the deceased and Journee.
The next day, January 1, 1898, they were arrested and on the night of that day were, while in custody, conveyed to the Charity Hospital by Captain Journee and one other police officer. Arriving there Captain-Journee requested permission of the surgeon in charge to see ■Miller, the wounded man, in'order that he (Miller) might, if possible, identify the two prisoners in custody as his assailants.
*1425Permission being given, a Sister of Oliarity aroused Miller, and Tournee approached the bed with the accused and the officer. Leaving the accused near the head of the bed and as yet out of sight of Miller, Tournee, with whom Miller was acquainted, drew near the latter, spoke to him and cautioning him to be quiet and careful, told him in substance he had brought two parties for the purpose of having him (Miller) say whether or not they were the parties who had shot him. He then caused Sadler, one. of the accused, to come to the bedside, whereupon Miller said: “That is the man, Chapman; your name is not Sadler, but Chapman. You are the man who shot me.”
J ournee then caused Campbell, the other accused, to come forwardr whereupon Miller said: “You, Campbell, had a pistol in your hand also.”
Following this identification Captain Tournee made or caused to be made an affidavit, charging the two accused with the crime, and under a warrant based on this affidavit they were remanded to prison.
At the trial, Tournee and the officer, who had been with him at the hospital on the occasion referred to, were placed on the stand as witnesses for the prosecution to prove what took place at that time, including the declarations made by Miller, the deceased.
Over the objection of counsel for the accused the testimony was permitted to go to the jury, and a bill was reserved to the ruling of the Tudge.
This evidence was offered by the State to prove identification.
It was objected to by the accused on the ground that at the time referred to they were under arrest and restraint in the custody of the officers of the law; that the statement of the accused offered to be-proven was not part of the res gestae, and inadmissible because there was nothing to show, .nor any pretense, that the same was a dying-declaration ; that the accused were not told they had the right to deny the charge of the deceased and did not know they were at liberty to speak; that by the admission of this testimony defendant Sadler was forced to go upon the stand as a witness to testify concerning it in contradiction of the police officers, greatly to his prejudice, and in violation of his right as a defendant not to testify as a witness upon any but such matters as he saw fit.
The former opinion of the court held these objections untenable because it was considered that the statements of the wounded man then made were admissible as dying declarations.
*1426A re-examination of the ease in respect to the same (bill of exceptions Nos. 4 and 5), has had the effect of changing the view then entertained.
There is nothing whatever to show that the statements made by Miller on the night of Jan. 1, 1898, were made under the sense of impending dissolution.
He said nothing at the time to indicate he believed he was dying, or was about to die, or was going to die. He was awakened from slumber, confronted with the accused, identified them as his assailants, declared one of them had shot him and the other was present assisting by having a pistol in his hand.
No foundation for this statement of his as a dying declaration was made, and it was not offered or received as such.
The statements of the deceased the preceding night, that of the ■shooting, December 81, to Officer Journee were properly admitted in evidence as dying declarations. A foundation for the same as dying declarations was laid. Miller then stated in effect that he believed he was going to die, and, following this, he made the declarations which were offered and received as dying declarations.
But this was twenty-four hours previous to' the second interview •Journee had with him, and it might well be at the time of the second interview Miller did not believe he was going to die and did not say what he then said under the sanctity arising from the sense of impending dissolution. If he did it should have been established as the basis for the introduction of the evidence.
Otherwise it was not admissible.
The case of State vs. Diskin, 34 La. Ann. 919, and that of State vs Robinson, 51 La. Ann., 694, are practically identical with this one, ■■and on their authority there must needs be a reversal of the verdict .and sentence and a remanding- of the case.
The statement made by Miller on the night of the 31st of December, which we think was properly admitted as a dying declaration, was not the same he made on the night of Jany.lst, which we hold to be inadmissible because not made as a dying declaration.
In the first, his statement was that Sadler had shot him and that Campbell was in his company at the time. In the second, his statement was to the effect, referring to Sadler: “That is the man, Chapman. Your name is not Sadler, but Chapman. You are the man *1427who shot me”; and referring to Campbell: “You, Campbell, had a pistol in your hand also.”
The first statement was made outside of the presence of the accused, .and the -objection to its admissibility was that the proper foundation for it as a dying declaration had not been laid.
Ilis second statement was made while the accused were present and under arrest, and was offered and admitted to identify them. It was not a dying declaration. No foundation was laid, or attempted, showing the deceased to have been in the same condition of mind he was when twenty-four hours before he made what was received as a -dying declaration.
There is no presumption that because a man believes, shortly after he is shot, he is going to die as the immediate consequence of his wounds, that 24 hours later he continues in this belief.
In Carver vs. United States, 160 U. S. 553, the deceased woman who had been shot and mortally wounded made two statements. The first was held to have been properly admitted in evidence because it had been satisfactorily established that when the victim made it she was under the impression of almost immediate dissolution. The second was held to have been improperly admitted because it did not appear whether -at the time, when the later statement was made, she spoke under the admonition of her approaching end.
Tho statements of Miller, made at the later interview, if not coming within the category of dying declarations, were hearsay and should not have been permitted to go to the jury.
It was incumbent upon the State to lay the foundation for their admission as dying declarations. Defendants could rely upon the presumption of innocence and were not compelled to show that the deceased then believed he might recover.
Neither were the statements of the deceased on the night of January 1st admissible as a confessibn of guilt on part of the prisoners, to he inferred from their silence on the occasion. The silence of one under arrest on a criminal charge to statements made in his presence •or hearing cannot have that effect. State vs. Diskin, 34 La. Ann. 922.
The prisoner.Sadler had always elhimed his name was Sadler; denied that it was Chapman; and the killing of Miller was caused by the latter’s assertion to the fiancee of-Sadler that he (Sadler) was not named “Sadler,” but Chapman, and that his father was a negro. In view of this, Miller’s statement on the night of January 1st, when *1428Sadler was brought before him, that his name was not Sadler but Chapman, was of material consequence. Hence, it is apparent that as Miller did not use these or similar words at the interview Captain Journee had with him the preceding night, it cannot be claimed that the interview on the night of January 1st is unobjectionable as being merely cumulative — the repetition of what was said the previous' night.
Furthermore, the statement to ¿adler “your name is Chapman,, etc.,” was not admissible even as a dying declaration because it was an opinion and no part of the res gestae. Underhill Crim. Ev. p. 137; Bradner on Ev. p. 454.
For these reasons, it is ordered that the former decree of the court herein he set aside, and it is now ordered, adjudged and decreed that the verdict and sentence appealed from he annulled, avoided and reversed, and that this ease be remanded to the court a qua to be proceeded with according to law — the accused to remain in the custody of the law.
Monkoe, J., takes no part.