specially concurring.
I concur in the conclusion and in the opinion, except as it finds no reversible error in the admission as a dying declaration of the statement of the wounded man, part of which was composed by a deputy sheriff and, part taken down as dictated by the deceased.
The introductory recital in the wounded man’s declaration, that “I Ray Butts realizing that I am about to die, and that it is impossible for me to recover, and being-apprised of my condition, and in the very article of death *643do make this my dying declaration and state the following to he the truth the whole truth and nothing hut the truth,” taken by itself and unexplained or contradicted by other evidence, might be sufficient to make the declaration admissible. There is uncontradicted testimony that the deceased did not know “that his death was imminent and inevitable and that he entertained . no hope whatever of recovery,” as is required in this State as a preliminary foundation to make such declarations admissible. Lester v. State, 37 Fla. 383,, 20 South. Rep. 232.
This preliminary, vital and essential part of the declaration was composed and written by a deputy sheriff, and taken to where the injured man was being-prepared to undergo an operation in the hope of saving his life, after which he took down the rest of the statement, and then read the whole of it to him. The purpose of reading it to the deceased was that he might know before signing that his words had been correctly transcribed, and in that frame of mind the declarant would not be apt to give special care and attention to the preliminary part, but would fix his faculties upon the part that he had dictated.
The deputy sheriff who composed the essential part of the declaration testified: “7 didn’t suppose he would know about that part of it.” “The rest of it” (meaning the dying declaration) “was his.” If the statement of how the shooting occurred was all of the declaration that “was his” that part wherein he is made to say that he realizes that he is “about to die and that it is impossible for me to recover” is not “his.” The attending physicians did not know -that it was impossible for the *644wounded mau to recover at the time he made this statement. How then could the wounded man know it?
Dr. Pittman, a witness for the State, testified: “Mr. Butts understood that he was to be operated upon. We told him the operation was a serious one; that his condition was serious and he understood that he was in a serious condition. I do not think anything was said to him about the success of the operation; that we did not know what the ultimate result of the operation might be; gave him to understand that he would better make the statement before the operation as he might not survive the operation. I do not know that he had abandoned hope of recovery at the time of making the statement. I do not know whether he had or not. I always endeavor to build up the spirits as much as I can (meaning the spirits of patients about to go -under operation) and probably did in this instance.”
Dr. Welch testified: “I think hope was held out to him as to the outcome of the operation — that hope was held out” and “I did not know that Mr. Butts could not live. We know of cases as severely wounded as that that have lived — nevertheless his chance was very small.”
The physicians who performed the operation must have felt that there was a chance of the wounded' man’s recovery else they would not have performed an operation on him. We cannot conceive of reputable physicians — such as those who were in attendance upon the Avounded man — cutting up a person if they kneAv there was no possible chance of his recovery. If they did not knoAV it, the wounded man did not know it. The very fact that an operation was to be performed upon him necessarily caused him to believe that there was a chance of recovery. The doctors did not know — the wounded *645man did not know — that “every hope of this world was gone.” Dixon v. State, 13 Fla. 636.
I cannot conceive of a person “fully conscious” — as one witness says the wounded man was — submitting to anaesthesia, and consenting to be mutilated — nor can I conceive of reputable physicians doing such a thing — if they and he “knew” that “every hope of this world was gone,” and that death was imminent and impending. It is not the belief of the certainty of death, that makes dying declarations admissible. All mankind knows of its “certainty.” The knowledge that it is imminent and impending, and that “every hope of this world had gone” is what is essential to make dying declarations admissible. The fact that he consented to the operation — the fact that the doctors were willing to and did operate on him — is an absolute negative to any belief on his or their part of the absolute inevitableness of death, and that it was imminent and impending.
I think the declaration was improperly admitted in evidence.