
    The People of the State of New York, Appellant, v. Caroline Kraft, Respondent.
    1. Evidence — Dying Declarations. While dying declarations, when admitted in evidence, are entitled to be considered as having the weight of an oath, they are not of the same value and weight as the direct evidence of a witness, subject to cross-examination, and whose deameanor, when upon the stand, is open to the observation of the jury; an instruction, therefore, by the court upon the trial of an indictment for manslaughter in the first degree, that such a declaration should be “ given all the sanction of evidence which the law can give to evidence,” constitutes reversible error.
    Reported below, 91 Hun, 474.
    (Argued February 21, 1896;
    decided March 3, 1896.)
    Appeal from order of the General Term of the Supreme Court in the first judicial department, made December 18,1895, which reversed for errors of law a judgment of the Court, of General Sessions of the Peace of the city and county of Kew York entered upon a verdict convicting defendant of the crime of manslaughter in the first degree, and granted a new trial.
    The facts, so far as material, are stated in the opinion.
    
      John D. Lindsay for appellant.
    The trial judge was justified in finding, as a matter of fact, the declaration of the deceased to the coroner to have been made in extremis, under a sense of impending dissolution, and after all hope of recovery was gone. (People v. Smith, 104 N. Y. 491; People v. Chase, 79 Hun, 296.) The trial judge did not err in charging that it was the duty of the jury to take the the dying declaration into consideration, “ because it is evidence for you, and it is given all the sanction of evidence which the law can give to evidence.” (Ashton’s case, 2 Lewin C. C. 147.) Exceptions which do not affect the substantial rights of the defendant ought not to be considered on appeal. (Code Crim. Pro. §§ 542, 684.)
    
      William F. Howe for respondent.
    The so-called dying declaration was illegally admitted in evidence. (1 Greenl. on Ev. § 158; Brotherton v. People, 75 N. Y. 161; People v. Robinson, 2 Parker, 246; Rex v. Spilsbury, 6 C. & P. 187; Starkey v. People, 17 Ill. 20; Smith v. State, 9 Humph. 17; People v. Evans, 4 N. Y. Cr. Rep. 221; Logan v. State, 9 Humph. 24.) Dying declarations are, in their nature, secondary evidence, and are so regarded in the law, and are not entitled to the same weight as if the declarant had testified before a jury. (Roscoe’s Crim. Ev. [10th ed.] 38; Rex v. Bonner, 6 C. & P. 386; Rex v. Spilsbury, 7 C. & P. 196; Ashton’s case, 2 Lewin C. C. 147; 1 Greenl. on Ev. [14th ed.] § 162; State v. Vansant, 80 Mo. 67; State v. Mathes, 90 Mo. 571; Walker v. State, 37 Tex. 366; Lamberth v. State, 23 Miss. 322.)
   Gray, J.

The defendant was convicted under an indictment charging her with the crime of manslaughter in the first degree, for having caused the death of Bertha Kern through the use of instruments, with intent to procure a miscarriage not necessary to preserve her life. Upon appeal, the General Term reversed the judgment of conviction, for errors of law, and not for errors of fact, and ordered a new trial.

The deceased made an ante mortem statement to the coroner while at the hospital, to which she had been removed, and an objection was made by defendant to its admission, based, among other grounds stated, upon the insufficiency of the evidence to prove it to have been a dying declaration. This kind of evidence is an exception to the rule which excludes derivative, or second-hand evidence. It has been termed an anomaly and its admission is justified upon the ground of necessity. Whether the conditions and circumstances, under which an mite mortem statement was made, constitute a sufficient foundation for its reception in evidence is a question which the trial judge must determine. That is an issue with which the jury have nothing to do and the court, upon the facts addressed to it, must try and decide it. In the present case, all the facts connected with the making of this statement by the deceased were laid before the recorder and he determined to admit it. His determination was subject to review at the General Term and, as it would appear from a memorandum filed at the General Term, two of the learned justices there did not concur with Mr. Justice Follett, who spoke for' the court, insofar as he held that the dying declaration was admissible under the proofs. But the review of this question upon the disputed facts ended at the General Term, and as the reversal of the judgment of conviction was for errors of law, only, we shall not consider the question.

The recorder, in charging the jury that the dying declaration was competent testimony for them to consider, added 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 portion of the charge an exception was taken and it presents the only question of any importance for us to consider. It was the ground for reversal, which was assigned in the opinion at the General Term. The instruction conveyed to the jury, in this portion of the charge, was distinctly erroneous and there was nothing to qualify its extraordinary force, as a comment upon that species of evidence. Dying declarations, as it was previously observed, constitute an exception to the general rule. They are of the nature of hearsay, or second-hand evidence, and although for reasons of public policy, as well as because of the difficulty of getting better proof of the fact, they are deemed to be admissible, it never has been, and it is not to be, supposed that they have all the guarantees which surround evidence given under oath in a court of justice. Judge Andrews in People v. Smith (104 N. Y. at p. 501), as Judge Coleridge suggested in Rex v. Spilsbury (7 Carr. & P. at p. 190), spoke of the admission of such proof as being anomalous and as requiring clear evidence of the facts to justify it. It is, of course, true that such declarations are considered to be equal to an oath taken in a court of justice; but that is because of the circumstances surrounding them when made. It is assumed that being made-in extremity, when the party is at the point of death and believes that all hope in this world is gone, they have some-guarantee for their truth in view of the solemnity of the occasion ; or as much as an oath in court would have. But it is-clear that their value as evidence rests upon an assumption and hence it is that, while the law recognizes the necessity of admitting such proof on a par with an oath in a court of justice, it does not, and cannot, regard it as of the same value and weight as the evidence of a witness given in a. court of justice, under all the tests and safeguards which, are there afforded for discovering the truth — the bbject of judical inquiry. For there the accused has the opportunity of more fully investigating the truth of the evidence, by the means of cross-examination, and the jury have the opportunity of observing the demeanor of the person whose testimony is relied upon. (See 2 Bussell on Crimes, p. 767, and 2 Best’s Evid. p. 637, and authorities cited.) The power of cross-examination is quite as essential, in the process of eliciting the truth, as the obligation of an oath ; and where the life, or the liberty, of the defendant is at stake, the absence of the opportunity for cross-examination is a serious deprivation ; which differentiates in nature and in degree the evidence of a dying declaration from that which is direct and given upon the witness stand. Where, as in the present case, the evidence to convict the defendant is contained in an ante mor tern statement of the deceased, while it is entitled to be considered as having the weight of an oath, it would he wrong to say that it had all the weight which the law can give to evidence. Tet that is what, in effect, the recorder instructed the jury here, when he told them that the dying declarations are- “ given all the sanction of evidence, which the law can give to evidence.” Speaking in a strict sense, the sanction of an oath and the sanction of such declarations are deemed to be the same, when the state of mind of the person is considered ; but, as it was said by Baron Aldebson, in Ashton's Case (2 Lewin, 111), “ though the sanction is the same the opportunity of investigating the truth is very different and, therefore, the accused is entitled to every allowance and benefit that he may have lost by the absence of the opportunity of more full investigation by the means of cross-examination.” This defendant denied having practised an abortion, and testified as to statements by the deceased and as to facts, which, if the jury-had believed her, would have resulted in her acquittal. It was, therefore, of the utmost importance that the jury should not receive the incorrect impression that, however admissible-in evidence the dying statement, it was as valuable, or as authoritative, for the purpose of proving the defendant’s guilt, as though the inculpatory evidence had been given by a witness in a court of justice and with every opportunity to the defendant to investigate its truth by means of cross-examination. The district attorney discusses the significance of the word “sanction,” used by the recorder, and argues that it is not to he read as meeting “ weight.” But we must read the language of a charge in the sense in which it is ordinarily used and understood by plain men and, when so read, “sanction” would,convey the idea of sacredness, or of authority, and, in the connection in which used in the charge, that of weight. The General Term justices so interpreted it, themselves, and why should not the jurors. In my opinion, so would the casual hearer. The learned recorder, himself, must have intended to attach to the evidence of a dying declaration an importance equivalent to the highest, which the law could attach to evidence; or he would not have said so broadly that it was given all the sanction of evidence which the law can give to evidence.” We think the jury were incorrectly instructed as to the relative character and weight of such evidence and it is impossible to say that thereby the defendant’s substantial rights may not have been prejudiced.

The order appealed from should be affirmed.

All concur.

Order affirmed.  