
    Lewis Green v. State of Mississippi.
    [42 South. Rep., 797.]
    Criminal Law and Procedure. Eomicide. Evidence. Dying declarations.
    
    In a prosecution for murder the defendant may introduce testimony showing a dying declaration of the decedent favorable to the defense.
    Eeojvi the circuit court of, second district, Perry county.
    Eon. William E. Oook, Judge.
    Lewis Green, the appellant, was indicted and tried for and convicted of the murder of William Gordon, and sentenced to the penitentiary for life, from which conviction and sentence he appealed to the supreme court.
    On the trial appellant sought, by the testimony of a witness, to prove a dying declaration of deceased, made shortly before his death. This was objected to by the prosecution. The witness testified before the court, the jury being excluded, that the deceased, Gordon, while at the point of death, asked witness to send for a physician, stating that he was going to die; that Lewis Green, appellant, had shot him, but was justifiable, as declarant was about to shoot Green at the time. The objection to the testimony was sustained, the witness was not permitted to testify touching the subject-matter before the jury, and appellant duly excepted to the ruling.
    
      Sharborough & THaion, for appellant.
    The lower court erred in not admitting in evidence the testimony of Oscar Southwick to the effect that the deceased, while at the point of death, had made statement to him of how the killing occurred. This dying declaration was favorable to the appellant, and corroborated the evidence adduced by him before the jury. It was, in substance, that the appellant was justifiable, as Gordon was about to shoot appellant, when appellant shot in self-defense.
    The declarant was conscious, when he made such statement to the witness, Southwiclc; he had received a fatal shot; death was inevitable, and, in order that no injustice be done to appellant, the dying man made the statement.
    The theory upon which the dying declaration was excluded from the jury was, that a dying declaration favorable to defendant in a case of homicide is not admissible. But if such be the laAvj we have been unable, after diligent search, to discover it.
    Wigmore, in volume 2 of his work on Evidence, section 1452, under the chapter on “Dying Declarations,” says: “Owing to the present peculiar limitation of this evidence to public prosecutions for homicide and the tenor of the declaration usually made by the dying person, it has sometimes been argued that the declaration cannot be used by the accused. But this argument has no foundation whateArer, and has been generally repudiated.” As in the case at bar, appellant’s defense was justifiable homicide, the dying declaration of Gordon would doubtless have been convincing to the jury of appellant’s legal right to kill the deceased.
    
      J. E. Davis, on the same side.
    The dying declaration of the deceased should have been admitted to the jury. The declaration Avas freely and voluntarily made to the witness, Southwick, by the dying man who, while conscious of his death, yet knew what he Avas doing in making the statement.. Tie had recoiAred a pistol shot in a vital spot, kneAv that he Avas soon to die, Avas shocked and in intense pain, and so conditioned he stated that the appellant Avas justifiable in shooting him, because he Avas at the time trying to shoot appellant.
    The period of survival of a declarant after making a dying-declaration is immaterial. 2 Wigmore on EAÚdence, sec. 1441. Dying declarations are not limited to the prosecution’s use, but may be used by either party. 2 Wigmdre on Evidence, sec. 1442; Abbott’s Grim. Trial Brief (2d ed.), 466, citing the Mattox case, 146 U. S., 140 (36 L. ed., 91*7) ; People v. Bouthern, 120 Gal., 645.
    
      R. V. Fletcher, assistant attorney-general, for appellee.
    The question whether it was error in the lower court'to exclude from the jury the testimony of Southwick in regard to the alleged dying declaration of the deceased, is respectfully submitted to the court.
   Calhoon, J.,

delivered the opinion of the court.

It was error to refuse the testimony of Oscar Southwick touching the dying declaration of William Gordon, who was killed by appellant, for which he is indicted.

Reversed and remanded.  