tions of the power of previous governments overthrown-altering the constitution essentially. These have in turn been recognized by this and other nations. When the government of this country recognized the third emperor of the French, if any Englishman entered into contracts with his government, could it be maintained that the validity of such contracts must depend upon the law of France as settled by decree of the republic which was established on his deposition? Obviously it would follow that no Englishman could safely contract with the present government of France, or, indeed, with any existing governments, lest it in turn should be displaced by another government which might treat its acts as void. There is no authority for any such proposition. I must take the law to be that the Englishman or Frenchman might safely contract with Senor Pierola's government, if not before, at any rate after, it was recognized by the governments of England and France respectively."

DYING DECLARATIONS.

Under the common law the courts generally held that dying declarations were admissible, in the trial of criminal cases, on the ground of necessity, so that the guilty party could not, by the death of his victim, who might be the only witness against him, wholly escape the punishment denounced against the crime. They were admitted only where the offense charged was the killing of the declarant, and to show the res gestæ of the homicide, the facts and circumstances surrounding its commission. But they were not admitted to prove any threats made or ill-feeling existing against the declarant on the part of the accused, or any prior trouble between them, or anything which transpired after the meeting which resulted in the death of the declarant.

"The general principle on which this species of evidence is received is that they are declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone; when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth; a situation so solemn and so awful is considered by the law as creating

an obligation equal to that which is imposed by a positive oath administered by a court of justice."1

"Dying declarations are such as are made by the party, relating to facts of the injury of which he afterwards dies, under the fixed belief and moral conviction that his death is impending, and certain to follow almost immediately, without opportunity for repentance, and in the absence of all hope of avoidance; when he has despaired of life, and looks to death as inevitable and at hand."' 2

It is

"The objections to the admission of such testimony are of the gravest character. hearsay, it is not under the sanction of an oath, and there is no opportunity for crossexamination. It is also subject to the special objection that it comes from persons in the last stages of physical exhaustion, with mental powers necessarily impaired to a greater or less extent, and, at the best, represents the declarant's perceptions, conclusions, inferences and opinions, which may be, and often are, based upon imperfect and inadequate grounds. Nor is the reason ordinarily given for their admission at all satisfactory. It is that the declarant, in the immediate presence of death, is so conscious of the great responsibility awaiting him in the near future if he

utters falsehood that he will, in all human probability, utter only the truth.

A

far better reason in support of the rule, as it seems to us, is that dying declarations are admitted from the necessity of the case, and in order that murderers may not go unpunished. Such a reason only can justify their admission in cases involving the life of the accused." 3

"Dying declarations constitute the only exception to the rule that in all cases the accused shall have the opportunity to meet face to face and to cross-examine adverse witnesses. Such declarations are admitted upon the single ground of necessity. The necessity rests primarily and principally upon the presumption that in a majority of cases there will be no equally satisfactory proof of the same fact." 4

It seems, therefore, that the true ground upon which these declarations are admitted has not been fully and finally determined. 1 King v. Woodcock, 1 Leach Cr. L. 500.

2 Starkey v. People, 17 Ill. 21.

3 Railing v. Com., 1 Atl. Rep. 316.

4 Boyle v. State, 5 N. E. Rep. 211.

There is one point, however, upon which the courts are almost unanimous, and that is that such "evidence is admissible, in cases of homicide, only where the death of the deceased is the subject of the charge, and the circumstances of the death are the subject of the dying declarations.

When Admissible. "Dying declarations are inadmissible unless the declarant believed that death was impending. If at the time of the declarations he has any expectations or hope of recovery, however slight it may have been, and though death ensued soon afterwards, the declarations are inadmissible."6

If the declarant, at the time of making the declarations, expressed the belief that she would die, but also said she thought she might recover, she had not abandoned the hope of recovery, and her declarations were held incompetent as evidence.7

Where the last rites of the Catholic church, prescribed for the dying, had been administered to the declarant, and he had participated intelligently therein, and a short time before the declaration was made, in answer to a question, he had said that he felt that he was going to die and did not believe that he would live to see the trial, and said, also, that it was hard to die, it was held that the proof of the circumstances under which the declarations were made was sufficient to warrant the conclusion of the court that they were made under the conviction of impending death, and that they were admissible in evidence.s

Dying declarations, to be used as evidence, must be made not only in articulo mortis, but under the sense of impending death, and the party must be of such a state of mind that he had a clear understanding of the contents of the document that he is said to have signed, and they can only be used when death is the subject of the charge, and the circumstances of the death the subject of the declarations.9 The declaration of the deceased is not ad

missible merely because made after being told that his wound was necessarily fatal. It must be shown that the declaration was made under a sense of impending death, or with the expectation of immediate dissolution.10 It is admissible, though not signed by the declarant, and although it was given, not in voluntary expressions, but by assenting words to leading questions, provided the declarant was on the point of death and knew that he was, and was too weak for the mechanical exertion of signing his name."

It is enough, if it satisfactorily appear, in any mode, that dying declarations were made under a sense of impending death, to admit them, whether it be directly proved by the express language of the declarant, or be inferred from his evident danger, or the opinions of the medical or other attendants stated to him, or from his conduct, or other circumstances of the case.12 But it is not necessary that the apprehension should be of immediate death. 18

To render dying declarations admissible in evidence, it is necessary to show that the declarant was, at the time of making them, conscious that he was in dying state; but it is not necessary that he should be in a situation to give a full and complete account of all the facts of the transaction, if he states the facts distinctly as far as he goes, and it does not appear that the facts were designed to be connected with others which were to form a part of a full and complete account of the transaction. And dying declarations con sisting of the words "yes, sir," spoken in answer to leading questions propounded to the declarant, are admissible in evidence.14 If the declarant, at the time he made the declarations, believed that he was about to die, the fact that he lived ten days longer and during that time expressed the hope that he might recover, will not render the declarations inadmissible.15

Preliminary Proof.-"In a prosecution for murder the offer of dying declarations should be preceded by evidence that they were actu

10 State v. Partlow, 4 S. W. Rep.

11 People v. Callaghan, 6 Pac. Rep. 49.

12 McDaniel v. State, 47 Am. Dec. 93; Moore v. State, 46 Id. 276.

13 Dunn v. State, 35 Am. Dec. 54.

14 Vass v. Com., 24 Am. Dec. 695; State v. Patterson, 12 Am. Rep. 200.

15 Swisher v. Com., 21 Am. Rep. 330.

ally made in expectation of impending death; and this may be shown by the nature of the injury, by what the injured person said or what physicians or attendants said in his hearing, and by the evident state of his mind at the time the declarations were made. It is not essential that the injured person should have stated that they were made in that expectation, or that any person should have said in his presence that death must speedily follow.16 But consciousness of approaching deeath need not be expressed. It may be inferred from circumstances. 17

Declarations may be made by signs as well as by words; and if a person in a dying condition, and so injured as to be unable to speak, is asked to squeeze the hand of the questioner if it was C who inflicted the injury, and thereupon does squeeze such hand, this is proper evidence for the consideration of the jury on the trial of C for murder.18 But the admission of the evidence, given by the declarant on the preliminary examination of the accused for assaulting the declarant with intent to kill, does not render the dying declarations incompetent or inadmissible. 19 The declarant must have given up all hope. If even slight hope of recovery remains the declarations are not admissible. Where the deceased knew she would die, but said also that if she got well she would never go to C's again, the declaration was rejected.20 It is no objection that the declaration was in writing, and the facts drawn out by questions asked by a third person, nor that some of the facts were suggested by that third person and assented to by the declarant. 21

Their Credibility a Question for the Jury.The admissibility of dying declarations must be determined by the court, but the weight to be given to them as evidence is a question for the jury.

"Various questions may arise after the court may have admitted the evidence. The jury may question its credibility, and consider its effect. As it is given and received under peculiar circumstances, great caution

16 People v. Simpson, 12 N. W. Rep. 662; State v. Wilson, 24 Kans. 189.

17 Anthony v. State, Meigs, (Tenn.) 265; People v. Gray, 61 Cal. 164; State v. Wilson, supra; Stewart v. State, 2 Lea (Tenn.), 598.

18 Com. v. Casey, 59 Am. Dec. 150.

19 State v. Wilson, supra.

20 State v. Center, 35 Vt. 378.

21 State v. Cantieny, 24 N. W. Rep. s.

*

is called for in the application and use of such evidence. To this end, it is important that all attending circumstances should be well weighed by the jury. The degree of self-possession, of observation and recollection of the deceased should be ascertained. The state of mind arising from his critical situation, added to his suffering condition, may produce indistinctness of memory, and all these may tend to shake the confidence of the jury. It may often happen that the party, without being perfectly certain, would ascribe the act to some suspected person, when, if the grounds of his suspicions could be known, they would be unsatisfactory. An enmity which had been but recently exhibited by threats would be very likely to lead the mind of a wounded person to a thorough conviction that the wound had been inflicted by the person who made the threat, and he might consequently speak of it as a fact. Hence the necessity for that degree of caution which is said to be necessary in the use of such evidence." 22

The credit to be given to dying declarations must be determined by the jury. After the admission of the evidence the question of its credibility remains for the jury. It is their province to weigh all the circumstances under which the declarations were made, including those already proved to the judge, and to give to the declarations such credit as, upon the whole, they may think them entitled to.23

It is not error to instruct the jury that dying declarations are entitled to the same weight as evidence as the testimony of a living witness.24

It is error to instruct the jury that a dying declaration should receive the same degree of credit as if made under oath at the trial.25

For what Purpose Admissible. — Dying declarations, like the testimony of any witness upon the stand, are admissible to prove facts only, and an opinion contained in the declaration is not competent; they are also restricted to the facts and circumstances immediately surrounding the act as homicide.

22 Nelms v. State, 53 Am. Dec. 98.

23 People v. Abbott, 4 Pac. Rep. 772; State v. Clemons, 1 N. W. Rep. 548.

24 State v. Nash, et al., 7 Iowa, 382; Baxter v. State, 15 Lea (Tenn.), 657; Green v. State, 13 Mo. 382.

25 State v. Mathes, 2 S. W. Rep. 800; Citing State v. Vansant, 80 Mo. 67; and State v. McCanon, 51 Mo. 160.

The general rule is that matters contained in a dying declaration are not competent, unless they would have been admissible if they came from the lips of a living witness testifying in open court. 26

The following cases show what have been held to be expressions of opinion merely, and therefore not admissible in evidenc:

"I don't know any reason that Fong Ah Sing had for shooting me, unless it was that it was a few days before the shooting I was bathing my feet up-stairs over a room in which Fong Ah Sing was sitting and spilled a little water on the floor, and it leaked through and fell upon Fong Ah Sing. Fong Ah Sing was very angry thereat, and told the proprietor of the house that I must apologize and make him some present, to prevent bad luck coming upon the house. The proprietor did make some little present to Fong Ah Sing, and I supposed the matter was settled." 27

28

"I think this man, Henry Wasson," the defendant, is the man who shot me. That the shooting was not done purposely.2

"Well, I guess Taylor has poisoned me." 30 The declaration that the defendant killed the declarant "for nothing," was held to be the expression of an opinion.31

32

"I expect it was Charles and Mrs. Briggs. The following have been held to be statements of fact, and not expressions of opinion:

"Ed. Clemons (meaning the defendant) shot me; aint I right?''33

In this case, after discussing the object for which dying declarations are admitted, the court says: "In view of these well-settled principles, we think there was no error in admitting the dying declarations testified to.

The first part of the declaration is a

26 Montgomery v. State, 80 Ind. 338: Binns v. State, 46 Id. 311; Boyle v. State, 97 Id. 322; People v. Wasson, 65 Cal. 538; State v. Donnelly, 27 N. W. Rep. 369; State v. Clemons, 1 N. W. Rep. 546; Wharton's Crim. Ev., § 294; Savage v. State, 18 Florida, 909; People v. Taylor, 59 Cal. 645; 1 Greenleaf on Ev., § 159; Walker v. State, 39 Ark. 220; Collins v. Com., 2 Am. Crim. Rep. 282; 2 Fields' Lawyers' Briefs, § 416.

27 People v. Fong Ah Sing, 64 Cal. 255.

28 People v. Wasson, 65 Cal. 538.

29 State v. Donnelly, 27 N. W. Rep. 369.

30 People v. Taylor, 59 Cal. 645.

31 Collins v. Com., 2 Am. Crim. Rep. 282.

2 Shaw v. People, 3 Hun, 272.

State v. Clemons, 1 N. W. Rep. 546.

distinct assertion that the defendant did the fatal shooting. The closing part is put in the way of an interrogatory, and it may have been for the purpose of assuring himself, not that he was correct as a matter of opinion, but that bis observation of the fact was correct."

In an Indiana case, where the declarant was asked, "What reason, if any, had the man for shooting you?" and he answered, "Not any that I know of; he said he would shoot my dd heart out, this was held to be the statement of a fact. The court said: "A cause is often a fact, not merely an opinion, and is here a fact. The statement of the dying man was not the expression of an opinion as to the sufficiency of the cause or reason that the accused had for shooting, nor was it the expression of an opinion upon any subject, nor was it a narrative of a past occurrence; but it was the statement of a negative fact, namely, that there was no reason or cause whatever for the shooting. The declaration does not assume to be the expression of an opinion, but it professes to be, and in truth is, the statement of a fact; for, if there was no reason or cause whatever, no opinion could be given as to its sufficiency or iusufficiency. Whether there is any cause for an act must be a fact; but if it be conceded that there is a cause, then, whether it was or was not adequate, might well be deemed matter of opinion."

The declaration that Abbott, the defendant, was "the man who cut him with a knife, and that he had no cause for it whatever," was held admissible as a dying declaration, but the question whether it was the statement of a fact, or the expression of an opinion only, was not raised.5

Also, when the declaration was that the shot was "intentional." 36

Where the declarant stated that "it was done without any provocation on his part," the declaration was held admissible, and the court said: "Whether there was provocation or not is a fact, not stated, it is true, in the most elementary form of which it is susceptible, but sufficiently so to be admissible as evidence.' 9937

The declaration that the defendant shot 34 Boyle v. State, 5 N. E. Rep. 205.

35 People v. Abbott, 4 Pac. Rep. 770.

36 State v. Nettlebush, 20 lowa, 257.

37 Wroe v. State, 20 Ohio State, 469.

him without cause was held to be admissible. 38 The declaration, "he shot me down like a dog," has been held to be competent.39,

It is even more important to exclude an opinion declared in articulo mortis than in an ordinary case, where the witness may be subjected to a cross-examination.40

A dylng declaration to the effect that the declarant did not believe that the accused intended to hurt him was rejected as the expression of an opinion, although in favor of the defendant.41 But where the declarant said "he brought it all on himself; he did not blame John Haney for shooting him; I did not think the negro would kill me; I brought it all about myself; I was to blame for the whole thing," the court held that, although it was the expression of an opinion by the declarant, it was admissible, because made. in favor of the defendant. 42

The declaration must be confined to the res gestæ, the facts and circumstances immediately surrounding the homicide, and the declarant must be the party injured.

Where the husband was found dead three hundred yards from his dwelling, and the wife was discovered lying across her bed in the house, in an insensible condition and with her face and head terribly beaten and disfigured, it was held that her dying declarations were not admissible as evidence against the defendant on his trial for the murder of the husband.43

Their admissibility is limited to the perpetrator of the crime and the circumstances of the homicide.44 They are not competent as evidence on the trial where the defendant is charged with the statutory offense of homicide resulting from an attempted abortion.45

The declarations may be discredited by showing that the deceased was not of such a character as was likely to be impressed with a religious sense of his approaching dissolution; 46 by showing that the deceased was a

Payne v. State, 61 Miss. 161.

39 State v. Saunders, 14 Oreg. 300.
40 Shaw v. People, 3 Hun, 272.
41 McPherson v. State, 22 Ga. 478.

42 Haney v. Com., 5 Crim. Law Mag. 48.

43 Brown v. Com., 13 Am. Rep. 740. Contra: State v. Terrell, 12 Rich. 321.

Felder v. State, 23 Tex. Ct. App. 477; Savage v. State, 18 Fla. 909; People v. Fong Ah Sing, 64 Cal. 255; Haney v. Com., 5 Crim. Law Mag. 47; Montgomery v. State, 41 Am. Rep. 815; Boyle v..State, supra.

45 Railing v. Com., 1 Atl. Rep. 314. Contra: Montgomery v. State, 41 Am. Rep. 815.

disbeliever in a future state of rewards and punishments; 47 by evidence showing that the declarant had made statements inconsistent with such declarations. 48

The conduct of the party making the declarations may be shown to the jury for the purpose of affecting their credibility.49 The admissibility of such declarations in cases of homicide, under the provisions of State constitutions to the effect that the defendant shall be entitled to meet face to face all the witnesses against him, seems to be well settled; and Thayer, J., in the case of State v. Saunders, 50 says that such evidence has been universally admitted, notwithstanding such constitutional provisions. Yet doubts have been expressed by eminent judges as to its admissibility where disinterested living witnesses had testified fully to all the circumstances. 51

46 State v. Nash, et al., 7 Iowa, 393.

47 Goodall v. State, 1 Oreg. 333; Hill v. State, 1 South. Rep. 494; Donnelly v. State. 26 N. J. Law, 463.

48 Nelms v. State, 53 Am. Dec. 94; Wyatt v. Com., 1 S. W. Rep. 198; People v. Lawrence, 21 Cal. 368. See also Felder v. State, 23 Tex. Ct. App. 477, which cites McPherson v. State, 9 Yerg. 269; Moore v. State, 12 Ala. 764.

49 Donnelly v. State, supra. 50 14 Oreg. 300.

51 Binfield v. State, 19 N. W. Rep. 603; Collins v. Com., 2 Am. Crim. Rep. 282.

ACTIONS FOR FOULING STREAMS.

The vigilance with which owners of property now pursue and seek to abate nuisances, contrasts favorably with the laxity of former days, when the growth and gradual encroachment of new trades outstripped the slow intellects of neighbors, whose property in time became hopelessly entangled with novel burdens. The court of chancery, which used to deal with most of these cases, was always most indulgent to those who had obtained a considerable length of user at the expense of apathetic neighbors; and the remedy was too often sought when too late. The activity of sanitary authorities, bustling sometimes for and sometimes against all kinds of nuisances, has sharpened the wits of proprietors, and the courts have lately been compelled to investigate and administer the appropriate remedies, greatly to the advantage of the public.