delivered the opinion of the court.
This as an appeal from a conviction of the crime of murder, and two of the assignments of error are the admission of testimony of two alleged separate and distinct dying declarations made by the person appellant is alleged to have killed. One of these declarations was testified to by Dr. Bounds, and will be found on page 61 of the records, and the other by Will ITowse, and will be found on pages 65 and 66 of the record, both of which the reporter will set out in full.
The grounds of these objections are, first, that the testimony does not show that they were made under the realization and solemn sense of impending death; and, second, that the declarations themselves show that at the time they were made the declarant was laboring under such strong feeling of hatred and revenge against appellant as to remove all presumption of their trustworthiness. The first of these objections is maintainable only with reference to the declaration made to Dr. Bounds, but the second of them is maintainable with reference to each of the declarations. Consequently neither of them should have been admitted in evidence.
It is true that Dr. Bounds told the deceased “that he could not live,” but there is nothing in the evidence to indicate that the deceased understood from this, or realized for any other reason, that he was then about to die; that he did realize this when he made the second declaration, several hours thereafter, is clear. Both of *894the declarations indicate that the declarant in making them was actuated by a spirit of malice toward the defendant and a desire to be avenged 'for the wrong which he thought had been done him. The only justification for the admission of dying declarations is the presumption that the near “approach of death produces a state of mind in which the utterances of the dying person are to be taken as free from all ordinary motives to misstate.” Among such motives and probably the most powerful thereof are malice and the desire for revenge, and when it appears that the declaration is tainted therewith all guaranty of its trustworthiness is removed, and it should not be admitted. 2 Wig. on Ev., sec. 1443; 1 Whar. Crim. Ev., 541. This is true, irrespective of the declarant’s belief or not in a punishment in a future state.
Since the admission of dying declarations constitutes an exception to the rule excluding hearsay testimony, and since the influence exerted by them on juries is probably greater than they merit, courts have always admitted them with great care and caution, and never when the supposed guaranties of their trustworthiness have been overthrown. It is true that the state of the declarant’s mind at the time the declaration was made should be taken into consideration by the jury in determining the weight to be given it when admitted. Nevertheless, when this state of mind is such that the guaranty of the trustworthiness of the declaration is removed, it should not be submitted to the jury for consideration at all.
Reversed and remanded.