The plaintiff in error was found guilty in the Yazoo circuit court of the murder of John Tate. He seeks to set aside that verdict, and reverse the judgment upon several different grounds. In stating the result to which our minds have come, it will not be necessary to notice all the evidence in the cause or all the *558points made by counsel in behalf of the accused. Such evidence only will be referred to as may be necessary to elucidate the points decided by us. Darling Hollins was the first witness introduced in behalf of the state, and from his testimony it appears, that a dispute had arisen between the deceased and the accused, in relation to the boundary line between their respective tracts of land; and that during the day on which the slaves of the deceased were engaged in removing a fence situated on the disputed land, he was shot by the accused, and died from the effects of the wounds. Upon his cross-examination the witness stated, that Tate had previously told witness, that B. J. Holliday, then surveyor of Madison County, had run the dividing line between Lambeth and himself; and that by that demarcation and line, the fence in dispute was left on Lambeth’s land, but that in the same conversation he had further stated, that he did not believe Holliday’s line was correct, because Gillespie, in 1837 or 1838, had surveyed the same land, and by his survey the fence in dispute was on Tate’s land. Gillespie was subsequently introduced by the state and proved, that in 1837 or 1838 he did run the dividing line between the tracts, and by that survey the fence in dispute was on Tate’s land. Before Gillespie’s testimony was given, a preliminary question was asked him by the counsel for the accused, namely, whether he had any personal knowledge of the length of the lines run by him in that survey. To which he replied, that he knew nothing of the distance of any of the lines, except what he learned from the chain-carriers, who were sworn chain-carriers ; and he did not know, whether, what they told him, was true or false. Defendant’s counsel then objected to his testimony in relation to the survey made by him, but the objection was overruled, and the testimony admitted, and the admission of this testimony is assigned as error.
During the progress of the trial, John Simms was introduced as a witness by the state, and proved that on the 3d of April, 1850, the day on which Tate died, witness was with him; that Tate was then in full possession of his mental faculties, and while in that condition, and when satisfied that he was about to die, he made a declaration in regard to his murder, which was *559reduced to writing at the time by the witness. The statement was then given in evidence without objection. After the testimony closed, many instructions were asked for by both parties, and several on both sides given and some refused. Among others given in behalf of the state, the defendant excepted to the 9th and 11th instructions, and the giving of those is assigned as error.
The court refused to give the 5th and 6th instructions asked for by the defendant’s counsel, but gave others in lieu of them, and this is likewise alleged to have been erroneous.
During the argument of this case, the objection to Gillespie’s testimony was earnestly pressed upon the court. We confess we cannot view this point in the same light with the prisoner’s counsel. In the first place, we may remark that the guilt or innocence of the accused is in no degree dependent upon the question of his or Tate’s title to the land or fence in dispute between them. Had Lambeth attempted to remove the fence, the law would not have excused his homicide by Tate in preventing the removal, although the fence were the rightful property of Tate; of course the converse of this proposition is equally true. If either killed the other with a deadly weapon, in order to prevent a trespass in the removal of the fence, such homicide would be murder, in the absence of proof that would tend to rebut the presumption of malice arising from the weapon used; and in the absence of such proof, the kind of weapon used determines the intent, and fixes the degree of guilt.1 McDaniel v. State, 8 S. & M., 418. Hence, in considering the questions of the guilt or innocence, the correctness of Gillespie’s survey, or whether he knew it or not to be correct, is immaterial. If his testimony had been offered in a suit about the boundary of the land, we are not prepared to say that it should have been rejected. It is true, he stated that he knew nothing of the length of the lines, except from the statements made at the time of the survey by the sworn chain-carriers. The survey was made by Gillespie, and the length of the lines fixed by him in the same manner that other surveys are usually made, and the *560length of lines determined. He had the same knowledge of the distance run by him that surveyors generally have. The mode adopted by them in surveying land, is to put down the distance as it is communicated from time to time by the chain-carriers, and these statements, made at the time of the survey, would seem to be admissible when referred to by the surveyor, rather as a part of the res gestee of the survey, than as hearsay evidence of statements by the chain-carriers.
But Gillespie was not introduced to prove Tate’s title to the land in controversy, or the correctness of the survey made by him. On the cross-examination of Hollins by the defendant, he stated, that Tate had said the dividing line between Lambeth and himself had been run by Holliday, by which survey the fence in dispute was on Lambeth’s land; but that he did not believe that survey was correct, inasmuch as Gillespie had previously surveyed it, and by his survey it was on Tate’s land. It was competent, after this testimony was given on cross-examination, to introduce Gillespie as a witness, to prove the fact, that he had made the previous survey, as stated by Tate. And in this point of view, we think the evidence was admissible, whether the survey was correctly made or not.
Secondly. Did the court err in giving the 11th instruction asked by the state. It is in these words, “ The presumption of law is, that the declarations of Tate, made when he believed he was about to die, and shortly before his death, were made under a ‘ solemn and religious sense’ of approaching dissolution, and the jury must consider said declarations as made under such sense, unless the contrary ⅛ proved.” By our law, the dying declarations of a party are only admissible on a trial for homicide, where the death of the deceased is the subject of the charge, and the circumstances of the death are the subject of the dying declarations. A preliminary fact, essential to be proved before their admission is, that they were made under a sense of impending dissolution. 1 This preliminary proof, and the proof of the *561circumstances under which the declarations were made, are to be shown to the judge, who is the exclusive judge of their admissibility, in the same manner as the preliminary proof of documents and the competency of witnesses is always addressed to the court.1 1 Greenl. Ev., § 156, 160.
The awful situation of the party making the declarations and his belief in his immediate and impending dissolution, are considered by our law as equivalent to the sanction of an oath.2 If the declarant, by reason of infancy, or imbecility of mind, tender age, or a disbelief in a future state of accountability, would have been excluded as a witness while living, his dying declarations would, for like causes, be rejected by the court. An oath derives the value of its sanction from the religious sense of the party’s accountability to his Maker, and the deep impression that he is soon to render Him his final account. The danger of immediate and impending death, and the belief of the party therein, is, by our law, considered equivalent to this sanction. It follows as a necessary consequence of the rule which admits dying declarations made under such circumstances, that the law must presume them, in the absence of proof to the contrary, to have been made under “a solemn and religious” sense of impending dissolution; that is, under a serious sense, that the party would be soon called to account for the truth or falsehood of the statements, in the same manner as the law will presume, in the absence of evidence to the reverse, that every witness placed upon the stand and sworn to testify, believes in the existence of a God and a state of accountability in the future, for the commission of crimes perpetrated here. 1 Greenl. Ev., § 157. In this connection it is proper to notice the action of the court in overruling the motion for the defendant’s 5th instruction, by which the court was requested to charge the jury, that unless the dying declarations of Tate were deliberately *562made under a “ solemn and religious sense” of impending dissolution, they were entitled to but little weight.
We have just attempted to show, that where the court has ad-1 mitted the “ dying declarations,” as competent evidence for consideration of the jury, the law raises a presumption, that they were made by the party in a state of mind indicated by this instruction ; unless the court was satisfied that they were made so, it would have been his duty to have excluded them from the jury, and not permitted them to have any weight in the formation of the verdict. The competency of this kind of testimony we have before seen, was exclusively for the consideration of the court. Having once decided that it was competent that the-party was in the frame of mind required by the law, to authorize the admission of his dying declarations, the power of the court over that question was determined. It then became the province of the jury to decide upon its credibility, who were at liberty, in doing so, to take into consideration all the circumstances under which the declarations were made, including those already proved to the court, and to give to the evidence only such credit or force as, upon the whole, they might think it deserved.1 1 Greenl. Ev. § 160. We are of opinion, therefore, that the court did not err in refusing defendant-in-error’s 5th instruction.
Again, will this court reverse the judgment because the circuit court refused to give the defendant’s 6th instruction ? That instruction was in the following words: “ If from all the evidence the jury entertain any reasonable doubts of the guilt of Lambeth, they cannot find him guilty, but must acquit him.” As a legal proposition, this instruction was certainly correct, and we are at a loss to ascertain an adequate reason inducing the judge to refuse it. On its refusal, the jury were instructed in lieu of it, that “ To warrant the jury in-finding the defendant guilty, there should be evidence before them sutficient to satisfy their minds beyond a reasonable doubt. That which amounts to mere possibility, or conjecture, or supposition, is not what is meant by a reasonable doubt. The doubt which should properly induce a jury to withhold a verdict of guilty, should *563be sucb a doubt as would reasonably arise from the evidence before them, and if such a doubt should arise from the evidence, the prisoner should have the benefit of that doubt.” This instruction is in the precise language used by the circuit judge, in the case of Cicely v. State, 13 S. & M., 210. In that case, however, it was given by tbe circuit judge as an explanation of the words, “ reasonable doubts.” After he had given an instruction asked for by the accused, similar to that refused in this case, we think the court, in the case of Cicely v. State, adopted the safe and proper rule, that is, to give the instruction and afterwards to give the explanation, if it deemed that the instruction needed explanation. It is the safer course, and one which in criminal trials the circuit court ought to adopt, to give the instructions asked by the accused, provided the court believes them to be law, and if any explanations are needed in the opinion of the oourt, they can be afterwards given.
This brings to the consideration of the last proposition which we deem it necessary to notice in this opinion. Did the circuit court err in giving the 9th instruction asked for by the state ? We think it did. That instruction was as follows: “ That the dying declarations of Tate, written by the witness Simms and offered in evidence, are entitled to the same credit and force before the jury as if the statements had been regularly sworn to in court before the jury.” In connection with this point the counsel for the prisoner elaborately argued that the dying declarations of the deceased ought not to have been admitted, because the admission violated the 10th article of the bill of rights, which declares that in all criminal prosecutions “ the accused shall be confronted by the witnesses against himand we have been earnestly invoked to review the former opinions of this court on this question. It would probably be sufficient to state in reply that these declarations were admitted without objection, and, therefore, it is too late to make it in this court for the first time. If, however, the objection had been made in the court below, it would in our opinion have been wholly untenable. This view of the law has been so often held by the courts of other states, having clauses in their constitutions similar to that in our bill of rights, and this court has decided so re*564peatedly that these declarations are admissible, even if our minds could be. brought to doubt upon this point, we would not feel at liberty to disturb a principle so often settled and acquiesced in for so long a time. In Woodside v. State, 2 How. R., 665, decided in January, 1837, this question was fully discussed, and in an elaborate opinion delivered by the present chief justice, this objection to the dying declarations was pronounced untenable, and the admission of them was held in no wise to conflict with the bill of rights. If this were a new question, now arising for the first time, we could not entertain a doubt of the correctness of the principle as now settled. The admission of these declarations was established as a rule of evidence by the courts of the common law, are almost coeval with the foundations of that law itself. The general principle of the common law, on the subject of evidence, with few exceptions, has always been that “ hearsay evidence ” could not be admitted. But simultaneous with the adoption of this rule, an exception was made to it in the case of the “ dying declarations ” of the deceased, on the trial of the party charged with his murder. This exception to the rale was made upon the ground of an overruling public necessity for preserving the lives of the community by bringing man-slayers to justice. It would often happen that there was no third person present to be an eyewitness to the fact, and the usual witness in other cases of felony is himself destroyed. 1 Greenl. Ev., § 156. When the bill of rights was adopted by the framers of our constitution, they were aware of this rale of evidence of the common law. They found it adopted into, and forming a part of the jurisprudence of our country. The object they had in view in adopting the clause referred to, was not to introduce a new, or abolish an old rule of evidence. Their intention was not to declare or specify the nature, character, or degree of evidence which the courts of the country should admit. Their aim was simply to reassert a cherished principle of the common law which had sometimes been violated in the mother country in political prosecutions, leaving to the courts to decide, according to the rules of law, upon the nature and kinds of evidence which a witness, when confronted with the accused, might be permitted *565to give. Tbe dying declarations are not the witness against the accused. They are only evidence against him which the witness confronted with him is permitted to introduce. The party testifying is the witness alluded to in the bill of rights. What testimony he shall be allowed to give is, in our opinion, regulated by the principles of the law and the practice of the courts, unaffected by the bill of rights.
But in our opinion the 9th instruction was erroneous because the language was calculated to mislead the jury in respect to Tate’s declarations, which, under any circumstances, are at least but hearsay testimony, and subject to the objections which apply to that kind of evidence; nothing but an imperative sense of public necessity ever justified their admission. Hence the courts constantly declare that they should be received with great caution. It is true, some authorities lay down the rule, that “A sense of impending death is equivalent to the sanction of an oath; and that the persons whose statements are thus admitted, are considered as standing in the same situation as if they were sworn.”
In thus laying down the rule, nothing further was intended by the writers than to assert the ordinary principle of the law on this subject, to wit: thafcfor the purpose of admitting these statements to the consideration of a jury, the law substitutes the situation of the party making them in lieu of the oath which is usually required, and so renders the evidence competent. But the degree or weight to be given to such statements is left for the consideration of the jury, and depends upon a variety of circumstances which may tend to increase or diminish them. Among these circumstances are the mental and physical condition of the deceased when the declarations were made; his memory, the extent to which disease may have impaired his recollection, and the accuracy with which the witness who testifies to the declarations, repeats the language used by the deceased. When statements are regularly sworn to in court before 'a jury, there are methods by which the jury can test the truth or falsehood of the statements, which cannot be applied by them to testimony given in any other way. Hence, the provisions before referred to in the bill of rights, that the accused shall be con*566fronted with his witnesses. In addition to the solemn sanction of an oath administered to the witness and which impresses him with the necessity of speaking the truth, as he will hereafter be held to account for it, there is a salutory and restraining fear of punishment for perjury if a false statement is made; and when the witness is thus confronted with the accused before the jury, the accused has the power of cross-examination, a power as essential to the eliciting the truth as the sanction of an oath itself, as thereby an opportunity is afforded to ascertain facts omitted in the statement which may be essentially important to the truth of the narrative. 1 Greenl. Ev., § 162; 2 Pothier on Obl., 255 (Mr. Evans’ note); 2 Starkie’s Ev., 263.1 At the same time, from a personal observation of the witness, from his manner of testifying, from his willingness or unwillingness to answer questions, from the clearness of his statements or the hesitancy with which he speaks, the jury is called to judge of the truth of his statements, in a manner which gives a weight and force to testimony, which evidence given in no other way should receive.
If, then, the court, by the 9th instruction, intended to charge the jury, that the same weight and force was to be given to Tate’s statements as if Tate himself had been a witness in the court, it was certainly erroneous; and whether such was the meaning of the court or not, the language used would bear such a construction, and. the jury may have so considered it, inasmuch as Tate could not have regularly sworn in court before them in regard to these statements, except as a witness. But the instruction, in our opinion, is objectionable jn another point of view. The jury is directed to give to the statement of Tate, written by Simms, the same degree of weight and force as if it had been made directly by Tate in their presence ; thus giving to secondary evidence the same weight which is due to direct testimony. Although the witness Simms intended to communicate accurately the statements made to him by Tate, and the circumstances under which they were made, it is impossible for. him to communicate the tone and manner of Tate in making *567these statements. It is impossible for the witness to do more than convey to the jury the impression made on his own mind at the time. Every day’s experience teaches ns that we cannot and ought not to rely with the same confidence upon what is communicated to us, as upon those things which we see and hear ourselves; nor are such statements entitled to the same weight and force, however anxious the informant may be to communicate accurately what he has seen and heard; he can only give the impressions that were made upon his own mind; and if, from any cause, that impression is inaccurate, is incorrect, he will, of course, make an inaccurate and false impression on the mind of the party to whom the communication is addressed. We do not think, therefore, that Tate’s statements, written out and offered in evidence by Simms, were entitled to the same weight as if Tate had been regularly sworn in court before the jury; because, in the latter case, the jury could have judged for themselves, by personal observation, in relation to Tate’s meutal and physical condition, how much his mind had been affected by his wounds and impending death; to what extent his memory and recollection had been impaired thereby ; how far the passion of anger or feelings of revenge operated upon his mind and affected the truth and accuracy of his statements. In short, they could have decided in regard to these things, by impressions made immediately on their minds, and not made mediately upon them by information derived from another. It is, therefore, our opinion, that the statement of Tate, if sworn to regularly in court, before the jury, would have been entitled to greater weight and force, than when communicated to them by the witness Simms. Let the judgment be reversed, a new trial granted, and the cause remanded.
Wharton on Homicide, 233; 1 Hale, 473, 486; 1 East P. C., ch. 5, § 58, p. 289; Archbold Cr. Pr. & Pl., 846, notes ; ib., 805; Foster, 291.
1 Archbold Cr. Pr. & Pl., 449; 1 East P. C., 354, 358; Rex v. Woodcock, 1 Leach, 652; Rex v. Wilborn, 1 East P. C., 358; Rex v. Van Butchell, 3 C. & P., 629; Com. v. Williams, 2 Ashmead, 69; 1 Greenl. Ev., 158; 2 Russ. on Crimes, 752; Hill’s case, 2 Grat., 594; Nilson v. State, 7 Humph., 542; Moore v. State, 12 Ala., 764; Brakefleld v. State, 1 Sneed, 215; Starkie v. People, 17 Ills., 17; Robbins v. State, 8 *561Ohio St. R., 131; Brown v. State, 32 Miss., 433; Kilpatrick v. Commonwealth, 7 Casey, 198; Commonwealth v. Densmore, 12 Allen, 535; Rex v. Pike, 3 C. & P., 589; Rex v. Crockett, 4 C. & P., 544; Rex v. Hayard, 7 C. & P., 187; Montgomery v. State, 11 Ohio, 424; State v. Poll, 1 Hawks, 442; Dunn v. State, 2 Pike, 229.
See cases cited in note * supra.
Archbold Cr. Pr. & Pl., 449; 1 East P. C., 354; 2 Russ. on Crimes, 752; Wharton Am. Cr. Law., 669; 1 Greenl. Ev., 158.
Vide cases cited supra.
See also Phil. & Ames on Evidence, 305, 306; 2 Johns., 35, 36; Rex v. Ashton, 2 Lewin Cr. Cases, 147, per Alderson, B.