. At the October term, 1909, of the circuit court of the Second district of Chickasaw county, the appellant, Yester Guest, was tried, convicted, and sentenced to the state penitentiary for a term of fifteen years, upon a charge of manslaughter, from which, judgment and sentence he prosecutes this appeal. To have a clear conception of the questions of law presented by this appeal, we deem it necessary to give a brief statement of the facts.
■ On July 4, 1907, James Ward, the deceased, and his brother,. Benjamin Ward, along with their families were returning home-from a picnic, and while en route the two brothers, James and Benjamin Ward became involved in a fist fight, and before the fight ceased Yester Guest, the appellant, a brother-in-law to-Benjamin Ward, came upon the scene, and at a certain stage of the difficulty it is alleged that he ran up behind the deceased,. J ames Ward, at a time when the two brothers seem to have been separated, and stabbed him with a knife, striking him between the third and fourth ribs, in the left side, about two inches ábove-the heart. About fourteen days thereafter James Ward, the deceased, died from the result of this wound. There is much conflicting testimony by the witnesses in giving their version of *878this difficulty; but we deem it wholly unnecessary to go into the ■details of it, further than to say that the appellant, Vester Guest, stoutly denied that he was the party who stabbed James "Ward. Upon the trial of this case his chief effort was to show that the fatal wound was not inflicted by him, but, on the contrary, was inflicted by Benjamin Ward, the party who was engaged in the fist fight with James Ward, the deceased:. This was the sole is■sue in this case before the jury.
We have thoroughly considered the record in this case, and so far as the facts are concerned the jury was, in our opinion, fully warranted in returning a verdict of guilty. While appellant assigned many errors, there are only three that are seriously pressed and discussed in counsel’s brief.
Appellant earnestly and seriously contends that the instruction, the only one asked by the state, is fatally erroneous. The instruction reads: “The court charges the jury that if you believe from the evidence beyond a reasonable doubt that the defendant stabbed and killed the deceased, without authority of law and not in necessary self-defense, you should find the defendant •guilty as charged.” One of the instructions for the defendant •charges “that if there is any possibility from the evidence that Benjamin Ward, or any one else than the defendant, stabbed the deceased, James Ward, then a reasonable doubt as to his •guilt does appear, and under these circumstances it is the duty of the jury to find the defendant not guilty, and the jury ■under such circumstances should return a verdict of not guilty.” The sole issue before the jury in this case was whether Benjamin Ward or Vester Guest inflicted the fatal wound. The criticism made upon the instruction of the state is that it leaves out the words “without malice” and “in the heat of passion” as defined by section 1236 of the Code of 1906. It is true a man may kill another without authority of law, and not in necessary self-defense, and still not be guilty of manslaughter. As an abstract proposition the instruction is open to criticism, but as ap*879plied and interpreted in tbe light of the facts of this case we cannot conceive how the defendant was harmed or prejudiced by .the state’s instruction, by leaving out the words “without malice” and “in the heat of passion,” when considered in the light ■of the facts of this particular case.
Complaint is made against some of the expressions used by the district attorney in his argument before the jury. District attorneys are subject to restraint by the court as other members of the bar; but upon an investigation of this record it is clear the district attorney did not abuse his privilege in the argument, and it is manifest that he did not exceed the bounds of legitimate debate.
It is contended by the appellant with much zeal that the trial court committed a fatal error in admitting as evidence the dying declaration of the deceased, to the effect that defendant cut him. When objection was made by the appellant to the introduction of this evidence, the court caused the jury to retire with • a view to ascertain and determine for itself whether or not the declaration would be admissible. For this purpose the court examined Dr. Evans, the attending physician, who testified that deceased told'him that he thought he was severely hurt all the time and claimed that he was going to die. Not at any time did he hold out any hope of recovery, and did not think he was going to get well. He suffered severely all the time, except when under the influence of opiates. Deceased had difficulty in breathing. During his sickness he was conscious and was at himself. Mabel Wa-rd testified that, after he was stabbed, “he suffered like he couldn’t stand it. He never talked to me like he could get well. He told me several times during his sickness that he was going to die.” The court also examined R. A. Ward, who testified that deceased said to him “that he never could get well;” “I am bound to die.” He asked deceased, “Do you realize that you are going to die ?” and he said, “I am bound to die.” He stated,-further, that the deceased never at any time *880expressed any hope of recovery, from the time be was stabbed, to the hour of death. It was further shown to the court that the day before he died, on the suggestion of friends to call in. another doctor, the deceased stated that it was no use; that he could not do any good; that he was bound to die.
Under this showing, the court, over the objection of the appellant, admitted the dying declaration to the jury. Mrs. Ward, and B,. A. Ward testified that the deceased told them that appel~_ lant stabbed him. The rules governing the admission in evidence of a dying declaration have been announced by this court time and again, and especially are they thoroughly discussed im the case of Lipscomb v. State, 75 Wis. 559, 23 South. 210, 230. The recognized rules are: “They must have been made under the realization and solemn sense of impending death. They must have been the utterances of a sane mind. They must be-restricted to the homicide, and the circumstances immediately attending it, and forming a part of-the res gestee. A declaration, or a part of it, is not admissible, unless it would be competent and relevant if it were the testimony of a living witness; and great caution should be observed in the admission of dying-declarations, and the rules which restrict their admission should be carefully guarded.” This court has held, further, “that as-a "preliminary question the admissibility of a dying declaration, is determined by the court, and the degree of proof required to-establish that the declarant realized he was m extremis, is such, as to exclude all reasonable doubt.”
Tested by the foregoing principle, we are of the opinion thatthe judgment of the court below was right in holding that the-foundation was sufficiently laid to admit as evidence the dying-declaration of the deceased. Three witnesses testified that deceased had, during his entire sickness, a fixed conviction that he-was going to die, and one witness testified that he said, “I am-bound to die.” There is positive testimony that the deceased,, during the entire time of his sickness, was sane. Indeed, it is: *881nowhere hinted or suggested in the record that the deceased was not of sane mind; nor is it suggested in the record anywhere that the deceased, at any time during his last illness, had or expressed any hope of recovery. Taking this in the light of the n'ature and extent of his wound, his physical state, his evident danger, his conduct, the occurrence of death soon thereafter, and all other circumstances connected therewith, we are of the opinion that the trial court committed no error in admitting as evidence the dying declaration of the deceased.
Taking the record upon the whole, we are of the opinion that the defendant had’a fair and impartial trial as guaranteed to him by the laws and Constitution of the state, and, we accordingly affirm the judgment.
Pee. Cueiam;. Por the reasons set out in the foregoing opinion of the Commissioner, the judgment is affirmed.
Affirmed.