
    Supreme Court—General Term—First Department.
    December 18, 1895.
    PEOPLE v. CAROLINE KRAFT.
    (72 S. R. 436.)
    1. Evidence—Dying declarations.
    Declarations, made in apprehension of death, by a sick or wounded person, in respect to the cause of his condition, are admissible in trials for murder and manslaughter when the cause of the declarent’s death is a fact in issue.
    2. Same—Question of law.
    Whether the declarations were made in apprehension of death and after the declarant had lost all hope of recovery, is to be determined by the judge:
    S Same—Weight.
    The same weight should not be given to a dying declaration as would be given to the same statements testified to in the presence of the jury.
    
      Appeal from a judgment convicting the defendant of manslaughter in the first degree.
    The declaration referred to in the opinion was made under the following circumstances: On the night deceased went to the hospital, three or fonr days before her death, she was visited by the coroner, who, after eliciting her name and residence, inquired of her whether she thought she could recover, to which deceased answered, “No.” The coroner then asked deceased whether she believed she was going to die, to which she answered, “Yes,” and then proceeded to tell how she came by her injury. It did not appear that deceased suffered pain at this time, or that she had been informed of her dangerous condition, or had made any preparations for death, and, excepting her answers to the coroner’s questions, there was nothing to show that she realized that she was then about to die.
    William F. Howe, for appellant.
    John L. Lindsay, for the People.
   FOLLETT, J.

The indictment charges that the defendant on January 14, 1893 by the use of an instrument called a “catheter,” attempted to procure the miscarriage of Bertha Kern, who was then pregnant, and that by means thereof she died. The evidence upon which the defendant was convicted consisted of the dying declaration of Bertha Kern, Which was made January 28, 1893, to Michael J. B. Messemer, a coroner, and was reduced to writing, and signed by the decedent. Hearsay evidence is a statement made by a person not called as a witness, which is received in evidence on the trial, to which class dying declarations belong. Declarations made in apprehension of death, by a sick or wounded person, in respect to the cause of Ms condition, are admissible in trials tor murder and manslaughter when the cause of the declarant’s death is a fact in issue. It is unnecessary to state the reasons for this rule which has so long prevailed. Its history is given by Mr. Justice Stephen, at page 446, in the first volume of his History of the Criminal Law of England. Whether the declarations were made in apprehension of death, and after the declarant had lost all hone of recovery,; is to be determined by judge; and the ¡learned recorder rightly determined this question, and properly :received the declaration in evidence. In instructing the jury as to the weight which should be given to it, he said:

!- “ So that I charge you, gentlemen, that this testimony which has been introduced relative to the dying declaration of this girl is comnetent testimony, and proper for you to consider, and it is your duty to take it into consideration, because it is evidence for you, and it is given all the sanction of evidence which the law can give to evidence.”

To this instruction the defendant’s counsel took an exception, and it is now urged that it was error for the court to instruct the jury that “it (the dying declaration) is given all the sanction of evidence which the law can give to- -evidence.”

The highest species of testimony is that given by an intelligent and wholly disinterested witness, who- observed under favorable circumstances the facts testified to. The recorder^ by his instruction, declared that a dying declaration is given all the sanction or weight which the law can give to evidence. This was more than saying to the jury that the declaration was. entitled to the same weight as if the same facts had been testified to by the declarant under an examination and cross- examination before the jury. One of the principal means of testing the credibility of testimony i-s the right to cross-examine a witness, and develop every fact legitimately bearing upon the statement. When a dying declaration is read in evidence, there is no opportunity to cross-examine the declarant, and no-opportunity fo-r the jury to- see the witness, and determine in respect to his intelligence and fairness. So far as we know, the question as to the weight to be given to such evidence has been considered in but one reported case in thi-s state. In People v. Knapp, 1 Edm. Sel. Cas. 177, Mr. Justice Edmonds instructed the jury as follows:

“And though that statement (the dying declaration) had been made with all the solemnity of a consciousness of approaching death, and therefore entitled to- the same weight as her testi-’ mony would have been if given personally before them, yet it was not entitled to any more, and was to be weighed and tested, as to its credibility, by all the other circumstances of the case.”

In that case the defendant was acquitted, and the instruction was not reviewed.

The question as to the weight of such declarations has been discussed by many text writers, and all agree that it is not entitled to the same weight as though the declarant had stated the same facts on the trial, and an opportunity given to cross-examine, and observe the demeanor of the witness. 3' Buss. Crimes (5th Ed.) 361, 362; 1 Tayl. Ev. (6th Ed.) p. 646, § 652; Bose .Or. Ev. (9th Ed.) 37; Field Ev. (4hh Ed.) 157 et seq.; Best, Ev. (5th Ed.) 637; Whart. Horn. (2d Ed.) § 472; Whart. Or. Ev. (8th Ed.) § 276; 1 Grecnl. Ev. (13th Ed.) § 162; 1 Phil. Ev. (Edward’s Ed.) 298; 2 Path. Obi. (3d Am. Ed.) 250. The dangers of implicitly relying on dying declarations are clearly pointed out by Mr. Justice Appleton, in his learned work on Evidence, .at page 202 et seq. But we are not left wholly to the authority of text writers. The question has been considered in three of the states of this Union, where it was held that the same weight .should not he given to a dying declaration as would be given to the same statements testified to in the presence of the jury. State v. Green, 13 Mo. 382; State v. McCannon, 51 id. 160; State v. Vansant, 80 id. 67; State v. Mathes, 90 id. 571; Lambeth v. State, 23 Miss. 358; Walker v. State, 37 Tex. 366. Upon principle, such declarations are not entitled to as much weight ns should be given to the highest species of testimony, nor to as great weight as should be given to the same statements testified to by the declarant when in health, and subjected to a cross-examination before the trial court. The person receiving the declaration seldom has sufficient knowledge of the circumstances of the alleged offense to conduct a proper cross-examination, and the situation of the dying person usually prevents a searching inquiry. Again, it is not the experience of mankind that the apprehension of immediate death, from which there is no hope of escape, is always sufficient to induce persons so situated to speak the truth. Criminals convicted on the most ■convincing evidence often assert their innocence while standing face to face with their executioners,-and.those-who have committed offenses frequently impute their downfall to .others, on the theory that their conduct will seem less culpable in the eyes of their friends and of the world; and in such eases the conduct of each wrongdoer is seldom as fully and accurately disclosed in the dying declaration as it would be by an examination in court. Without further giving the reasons why such declarations are not entitled to the highest degree of credit, which are fully stated in the authorities cited, we are of the opinion that the court erred in instructing the jury in respect to the weight which should be given to the declaration, and, for this reason, that the judgment should be reversed, and a new trial granted.

VAN BRUNT, P. J., and PARKER, J.

We concur in the opinion of Mr. Justice FOLLETT, except in so far as it holds that the dying declaration was admissible under the proofs in this case. We think it was not.

NOTE ON “DYING DECLARATIONS.”

For rule governing admission of dying declarations, see People v. Chase, 79 Hun, 396.

The admissibility of dying declarations depends on the facts of each case. People v. Chase, 79 Hun, 296.

Dying declarations are not of same value and weight as the direct evidence of a witness. People v. Kraft, 148 N. Y. 631; aff’g 91 Hun, 474; 72 R. S. 436. An instruction that such a declaration should be “given all the sanction of evidence which the law can give to evidence,” constitutes reversible error. Id.

It is for the court to determine, as a preliminary issue, whether the alleged dying declarations were made by the deceased under a conviction of approaching and imminent death. People v. Smith, 104 N. Y. 491.

Though such preliminary examination may, in the discretion of the court, be conducted in the presence of the jury, they have no concern with the testimony, until, by the court’s ruling, some portion is presented to them as competent evidence in the case. People v. Smith, 104 N. Y. 491.

No exception can be based upon the reception of such preliminary examination of statements, though not relating to the immediate circumstances of the death, which is not so presented to the jury. People v. Smith, 104 N. Y. 491.

It is within discretion of court to determine the extent of such examination. People v. Smith, 104 N. Y. 491. The exercise of such discretion is reviewable by the appellate division, but not by court of anneals unless abused, and action of court is arbitrary and unreasonable. Id.  