Defendant was tried in the circuit court of Stone county on an indictment charging him with murder in the first degree in killing one John Harris, and was convicted of murder in the second degree and sentenced to imprisonment in the penitentiary for ten years,
*573On the trial the court, over the objections of defendant, received in evidence the statements of deceased as to what took place at the time he was shot by defendant. This evidence was properly received, inasmuch as a proper foundation for its introduction had been laid by showing that they were made by deceased after he had abandoned all hope of living and in view of approaching death. 1 Greenl. Evid., sec. 108.
While the court did not err in receiving the evidence, it committed error in the sixth instruction on behalf of the state as to the weight to be given it by the jury. The instruction was: “ The court instructs the jury that the dying declarations of deceased, given in evidence on the part of the state, are to be received and considered by the jury with the same degree of credit as if testified to under oath on examination in this trial.” This instruction is condemned by the cases of State v. Vansant, 80 Mo. 67, and State v. McCannon, 51 Mo. 160, in both of which the judgments were reversed because a similar instruction to the above had been given. No specific objection is pointed out to the other instructions, which seem to present the law of the case fairly. The instructions asked by defendant, on the law of self-defence, might well have been refused on the ground that it had been sufficiently given to the jury in other instructions.
The judgment will be reversed and cause remanded for the error pointed out, and if, on a re-trial, the facts put in evidence warrant an instruction for manslaughter in any of its degrees, the court should give an. instruction upon the degree to which the facts may apply.
All concur.