#### People of the State of New York, Resp’ts *v.*Peter Smith, Appl’t.1

*(Court of Appeals,*

*Filed March*1, 1887.)

1. Evidence — Dyihg declabations — Peeliminaby examination.

When the admission of the dying declarations of the person who was killed is brought in question on the trial of the indictment against the person accused of causing the killing, it becomes the duty of the court to determine as a preliminary issue whether the alleged declarations were made by the deceased under a conviction of approaching and imminent death, and such necessary preliminary examination may in the discretion of the court be conducted in the presence of the jury.

2. Same — Extent oe peeliminaby examination discbetionaby — Reviewable.

The general rule for the guidance of the trial judge in exercising his discretion is that he should confine the preliminary examination to the facts relating to the declarant's condition of body and mind at the time. How far the examination should extend in order to ascertain with accuracy and reasonable certainty the mental condition and belief of the declarant will remain discretionary with the trial judge in each case under its own peculiar circumstances. The exercise of that discretion is reviewable by the general term but not by the court of appeals, except in extraordinary cases.

3. Same — Extent to which tbial judge may examine.

After the people had laid what they deemed a sufficient foundation for the admission of the dying declaration; the trial judge pursued the inquiry, embracing many facts not coming within the class of facts which may be proved by dying declarations, stating that none of it was to be admitted yet. Subsequently he directed part of the evidence taken to be read as evidence of dying declarations and the rest to be stricken out. *Held,*there was no abuse of discretion. That the part stricken out never went to the jury. *(Andrews and Peckham, JJ., dissenting.)*

Appeal from a judgment of the supreme court, general term first department, affirming a judgment on conviction of defendant under an indictment for murder in the first degree.

*Randolph B.*Martino, dist. atty., for resp’ts; *Arthur C. Palmer*and *John O’*Brien, for appl’t.

1

 Reversing 41 Hun, 641*mem.*

*760Finch, J.

We all agree in this case tbat no error was commit-ed upon the trial, unless as to the single point which, in the opinion of ANDREWS, J., is deemed sufficient ground for ordering a new trial. That opinion states fully and accurately the facts disclosed by the proofs, and shows that the killing was admitted, and the only issue that remained was whether the fatal shot was accidental or intentional. It further holds that, when the admissibility of the dying declarations of Hannon was brought in question, it became the duty of the court to determine, as a preliminary issue, whether the alleged declarations were made by the ^deceased under a conviction of approaching and imminent death, and that such necessary preliminary examination might, in the discretion of the court, be conducted in the presence of the jury.

When the dying declarations of Hannon were offered by the prosecution, the defense objected, upon the ground that they were not such. The trial judge answered, in substance, that he could not determine that question until he knew whether or not they were made in anticipation of approaching death. The defense then claimed a right to cross-examin*e*upon that point.” The judge answered, “ Not just yet,” and fiiially said, before the preliminary examination began, “ When the district attorney gets the statements of the witness, you may cross-examine, and I will then determine whether it comes within the rule.” At this stage of the case, there seems to have been no room for a misunderstanding as to what was at the moment before the court. It was an issue of law, to be determined by the court upon facts addressed to it, and with which the jury had nothing whatever to do. The defense so understood it; for they sought to enter at once upon a cross-examination of the witness on that point. Everybody understood that the admission of any declarations of Hannon was stayed and barred until, upon the examination by the prosecution and the cross-examination by the defense, the issue of admissibility should be tried and determined by the court. During trial of that preliminary issue the jury stood merely in the attitude of spectators. They had no concern with it, and knew from the statement of the court that they had not. They understood that out of its result something might come before them as evidence, or nothing, and that, until the judge ruled, the facts developed were for his consideration, and not for theirs. The fact that their presence was not error shows that, in the judgment of the law, a jury must be deemed capable of that amount of discrimination at least. And thus the trial of the preliminary issue before the court was entered upon with the complete knowledge and understanding of all parties.

The district attorney proceeded at once to the precise point, and proved the statement of Hannon to his mother that he was *761“ going to die.” At the close of about one-half of a printed page directed to tiie issue before the court, the prosecution said: “ Now we think we have laid the foundation for declarations.”. The judge seems not to have been entirely satisfied. The mother had given to her son the doctor’s assurance that he would get well. It had produced no apparent effect at the moment; but who could tell that, if the rest of the conversation occurring thereafter should be disclosed, there might not appear a hope of recovery born of that assurance, or a spirit of hatred and revenge inconsistent with the solemn truths of statements in the presence of death ? The prosecution had obtained enough for its purpose; but the court had a duty to its own conscience,— a duty not to be hasty or to be misled, and to make sure that it fully and correctly understood the frame of mind of the deceased. The learned judge, therefore, continued the examination, and at some point the district attorney apparently aided in its progress until the witness had . disclosed, not a selected part, but the whole of what deceased said to her during the last two days of his life. Near its close, Hannon spoke of the influence of Sweeney with the police. The prisoner’s counsel asked the court, “ Will you admit this ? ” to which the judge replied, “ I have not admitted anything yef; I want to hear the whole statement made by the deceased before I determine whether I will or will not allow the alleged dying declarations in evidence.” Nothing could be plainer or more direct than this. All that had been said by the witness was thus again declared to be purely tentative and preliminary, not yet evidence in the case, and wholly directed to the enlightenment of the court in the performance of its duty. The statement, thus interrupted, was thereupon finished in a single sentence more, of about half a dozen lines. So far, no evidence of Hannon’s declarations had been admitted at all. They had been repeated for the information of the court, to enable it to perform the duty of ruling whether any, and if so what, portion of them was competent evidence to be submitted to the jury. Until some such ruling was made there could be nothing to which the prisoner could except as constituting legal error.

What followed was in some respects out of regular order. The district attorney, dropping the entire subject of the conversations with the deceased, proceeded to examine her, not upon the preliminary issue, but upon matters relating to the main issue, and belonging to the consideration of the jury. It would have been more regular to have first finished the preliminary issue. The prisoner’s counsel, however, seems to have acqui esced. He had been told that he could cross-examine upon the preliminary issue when the prosecutor had finished. That time proceeding, to interpose, and assert the right which the court had promised to give him, and ask a decision of the preliminary *762had promised to give him, and ask a decision of the preliminary issue before the trial proper was resumed. He did not do so. .He chose to sit silent while the added proof, competent upon the main issue, was being submitted to the jury. When the district attorney closed his examination of the witness, the prisoner’s counsel asked three not very important questions, and then .turning to the court, said: I move now to strike out all the evidence given by the witness in regard to the interview with the deceased, on the ground that it is inadmissible, for the reason that the necessary foundation has not been laid for such declarations.” This motion was singularly inapt, except for one purpose. As no declarations had yet been received in evidence, there was none to strike out; and the objection was to the whole of them, when some were beyond doubt admissible. If the purpose was to draw from the court the admission that they had been received, or an assent to such a claim, that purpose-failed, for the court said, in answer to the motion: “ As I understand the position of the matter now, it is this: Mr. O’Brien claims the right to cross-examine the witness in reference to *what will he claimed hy the district attorney*as evidence of dying declarations for the purpose of ascertaining whether it is admissible. Are you cross-examining on that point ? ” The prisoner’s counsel replied : “ I am not; I am in a general cross-examination.” The answer suggested to the judge the possibility of some confusion, for he at once said: “ you may enter on the record that the court will now permit the defendant’s counsel to cross-examine the witness before passing upon the question of the admissibility of the alleged dying declarations made by the deceased to the witness as testified to by her.” To this the prisoner’s counsel said: “ We cannot be estopped by any such record as that: it is a monstrous proposition.” Why that should have been said after what had occurred, it is difficult to say. We do not mean to criticise the counsel, who bore the heavy responsibility of his client’s life, or misinterpret his zeal; but, at least, we differ from him entirely. We see in the action of the trial court a steady purpose to keep the evidence of declarations out of the case until, at a proper and suitable time, it should be determined what, if any, were admissible.

The counter-effort seemed to be to insist that the court stood in.the position of having admitted in evidence what it is clean was never admitted at all. The cross-examination then proceeded. Before it closed, it reverted to the declarations of the deceased, which had been repeated to the court. The witness was asked if she recollected the interview clearly; if she thought her son was dying; why she did not send for a priest on Wednesday; what was the subject-matter of deceased’s conversation on Thursday; and what was the whole conversation between them. As the witness began to repeat it, the counsel *763suddenly closed bis cross-examination. The court then asked if it was finished, and, receiving an affirmativé answer, proceeded to determine the preliminary issue, and decide what portion of the statement of the witness to the court should be admitted, and directed the stenographer to read to the jury, and he did read to them, “ so much and such parts thereof as are embraced within black lines,” and marked on the margin, “ allowed to stand as evidence of dying declarations,” and ordered the balance to be “ stricken from the evidence,” and, in view of what had occurred, took the added pains to caution the jury to disregard what they had heard repeated, but what the court decided it would not admit. Upon this state of the facts I cannot resist the conviction that the declarations of Hannon now objected to were never admitted in evidence, but wholly excluded; and that the case is not at all one in which erroneous proof was first admitted, and then sought to be stricken out, but one in which no error of admission existed which required correction. It seems sufficiently evident, also, that any doubt on the subject, and any confusion or mistake as to what was being done, was steadily and persistently guarded against by the court, and the admissibility of the proposed evidence determined as soon as it could be done consistently with the right of cross-examination reserved to the defense.

Since there could be no valid exception to the admission of evidence which was never admitted, the only possible inquiry becomes whether the action of the court in acquiring the needed information on which to rule is itself the subject of our review. We do not see how it can be. It rests in the judicial discretion. It never goes to the jury except so far as admitted. Some means of information the court must have. The suggestion made is “ that- it should have confined the preliminary examination to the facts relating to the declarant’s condition of body and mind at the time.” That proposition, stated as a general rule for the guidance of trial judges in exercising their discretion, need not be doubted; but the inquiry will remain in each case, under its own peculiar circumstances, how far the examination should extend in order to ascertain with accuracy and reasonable certainty the mental condition and belief of the declarant. The exercise of that discretion was reviewable by the general term, but is beyond our jurisdiction, unless we can see that such discretion was abused, and the action of the court arbitrary and without reason. We cannot say that. There was a motive that might fairly have operated upon the judicial mind to push the inquiry beyond the point at which the district attorney paused, and that motive was, as we have already suggested, to ascertain whether the assurance of survival which the deceased had been told the doctors had given, became at any time so operative upon Mm as to awaken a hope of life. *764With that circumstance before it, the court might reasonably conclude that a part of what was said would scarcely furnish as safe a basis of judgment as the whole. We can readily see that the determination of the court to hear all that the deceased said, before deciding whether any of it was admissible, should not be deemed arbitrary or an abuse of discretion under the existing facts.

Suppose that it had turned out, as from what appears seemed quite possible, that the very last thing said by Hannon, relating not at all to the facts of the shooting, had shown the presence of a lurking but confident hope of recovery. Singularly enough, the prisoner’s counsel illustrates the force of what we are saying by claiming in his able brief precisely such a result. He plants himself on the very last words of Hannon, which closed the conversation with his mother, and which were about Sweeney and the police, and argues that they show a hope of recovery. Hannon said: “ I am afraid, mother, you will get no satisfaction for your son.” She replied; “Johnny, that can’t be so.” He answered : “ I hop>e so, mother, because I would like to go agin them fellows.” The counsel claims that the expression does bear somewhat upon Hannon’s frame of mind, and yet, without what preceded it, its occasion, and even its accurate meaning, might be lost to us. -It does appear to have been deemed sufficiently material by the learned trial judge to have affected his judgment; but he could not have known that in advance; and it is easy to see that it might have assumed a form which would have been very material. The hope of survival, the lingering belief that death is not inevitable, may disclose itself to an observant mind where even the witness does not see it, and may come to the surface when the talk is far away from the facts of the killing, and from the *res gestee.*The suggestions show that the action of the court was, at least, not arbitrary, and without some apparent reason, and so its discretion was not abused. The general term, which had the power to review it, has held that the rights of the prisoner were not prejudiced, and its conclusions must therefore prevail.

The judgment should be affirmed.

Ruger, C. J.,Earl and DaNeoeth, JJ., concur. Andrews, J., reads dissenting opinion for reversal, and Peckham, J., concurs. Rapadlo, J., absent.

Andrews, J.,

*(dissenting).*— The defendant was jointly indicted with one Alexander Sweeney, in the court of general •sessions in the city of New York, for the murder of John Han-non, by shooting with a pistol, April, 1885. He was separately tried, and was convicted of murder in the first • degree. The transaction took place at about 6 o’clock in the evening, at a *765shanty at the foot of Thirty-eighth street in the city of New York, where the deceased was employed as a watchman in the street-cleaning department. The deceased was at the time sitting or lying on a bench in the shanty, and a man named Tracy was in the room, sitting by and leaning upon a table, Tracy saw Smith and Sweeney enter the door, and he pretended to be asleep. He testifies that they had some conversation in a whisper, which was followed almost immediately by the report of a pistol, and they then turned and left the place. Tracy, seeing that Hannon was shot, followed the two men, and pointed them out to officers, who arrested them. The shooting was done on Tuesday evening. Hannon was taken the same evening to Bellevue Hospital, and died there the Saturday following. It was found that a ball had penetrated the skull over the right eye, entering the brain. There was no controversy on the trial that the shot proceeded from a pistol in the hands of the defendant. The defense was that the shooting was unintentional and accidental. The testimony of the defendant, who was sworn as a witness in his own behalf, tended to support this explanation.

The theory of the prosecution was that it was a deliberate and premeditated murder, committed by Smith and Sweeney, acting in concert, from enmity, each having a grudge against the deceased. The prosecution, in support of this- theory, proved that Smith and. Sweeney had known each other from boyhood, and were intimate friends, and were also acquaintances of the deceased. For the purpose of showing the hostility of Sweeney to the deceased, the prosecution was permitted, against the objection of the defendant’s -counsel, to show that a fight had occurred between them on the day before the homicide. It was also shown by the evidence of the mother- and sister of the deceased that, about two years prior to the homicide, an altercation took place between the defendant and the deceased, during which the former drew a pistol, and that on that occasion the defendant threatened to kill Hannon, “ if it is 20 years to come.”

The people, further, to support the indictment, offered evidence of declarations made by the deceased to his mother at the hospital on Wednesday morning, the day after the shooting, and also to his sister on Thursday morning. The principal and serious allegations of error relate to this *evidence*— First, as to whether the declarant made the declarations under a sense of impending death, within the rules governing the admission of dying declarations; and, second, whether the court committed a legal error in permitting declarations of the deceased to be proved in the first instance, not relating to the immediate circumstances of the death, and which the court subsequently ordered to be stricken out.

*766In respect to tbe first question, viz., whether the deceased at the time of making the declarations was in such condition of body and mind, and had such a sense of impending dissolution as to make his dying declarations admissible as such, we entertain no doubt. As the sequel proved, he had received a mortal wound. His conversation with his mother indicated that he considered his condition hopeless. He said: “ Yes, mother, I am shot. Mother, will you take me home ? The Bellevue people are good. They are good enough j but they can do nothing for me.” The mother said : “ Johnny, the doctor don’t say so; the doctor says you will get well.” He said: “ Mother, lift me *up;*kiss me, kiss me, because I am going to die. The bullet that Pete Smith put in my head, it is in it, and it will fetch me, and leave you without your only son.” There was other conversation not necessary to repeat. Suffice it to say that all his statements as to his condition indicate that, both on Wednesday and Thursday mornings, he had a settled conviction that he was fatally wounded, and that death was imminent.

It would not be profitable to go over the cases as to the preliminary proof necessary to entitle dying declarations to be given in evidence. Each case differs in its circumstances, and the cases are not all reconcilable. The rule admitting dying declarations is anomalous, and courts are strict in requiring that, before admitting them, it shall be made clearly to appear that the declarant was in fact resting under the shadow of death from the fatal stroke, and so believed, entertaining no hope of recovery. The circumstances proved in this case bring it within the rule according to the best-considered authorities. *Reg. v. Howell,*1 Car & *K. 689; Queen v.*Reany, 26 Law J. M. Cas. *48; Reg.*v. Jenkins, 11 Cox, Crim. Cas. 250; *Reg.*v. Peel, 2 Fost. & F. 21; 3 Russ. Cr. (4th Eng. Ed.) 250 *et seq.;*1 Greenl Ev. c. 9.

The more serious question arises in respect to the alleged error of the court in admitting declarations made by the deceased in relation to matters not the proper subject of proof by dying declarations. The course of the trial upon this point, as disclosed by the record, was this: The mother of the deceased, on being called and sworn as a witness for the people, was asked by the prosecuting attorney to state the conversation she had with the deceased at the hospital on Wednesday morning. The defendant’s counsel interposed an objection that it was not “in the nature of an *ante*mortem, and was inadmissible.” The court replied: “ I cannot determine whether it is or not till I hear it.” On the defendant’s counsel repeating the objec-' tion, the court stated: “ Mr. Palmer, rather than you should interrupt at every question put to the witness, you may consider an objection and exception to every question put to the witness.” The witness was again asked to state the conversa*767tion, when the defendant’s counsel asked tbe court if it had decided to admit declarations of Hannon when not in fear of imminent death, and the court replied that it had not, adding: “ How do I know as yet but that they were made in anticipation of immediate death ? ” The defendant’s counsel then asked to be permitted to cross-examine the witness on that point: but the court denied his request, saying that when the district attorney got the statement of the witness the defendant’s counsel could then cross-examine, and the court would decide whether it came within the rule; and to this ruling an exception was taken. The district attorney then proved by the mother the declarations of the son heretofore stated, and said: “ Now I think we have laid the foundation for declarations.” The court then took up the examination of the witness, and she proceeded, in answer to the questions of the court and the district attorney, to give testimony occupying four printed pages of the case, narrating the whole conversation with her son. Much of the evidence was elicited by answers to the specific questions as to declarations having no relation to the *res gestee*of the homicide.

After an examination of the witness covering 20 printed pages, embracing many subjects other than the interview at the hospital, the court directed the stenographer to read to the jury from his stenographic notes a part of the evidence of the witness pointed out by the court of the conversation with her son, which embraced the evidence which has been detailed, showing Hannon’s expectation of death, and also his declarations as to the circumstances of the murder, and directed that the further evidence of the witness of what transpired at the interview should be stricken out and disregarded by the jury. The portion of the evidence directed to be read to the jury is inclosed in black lines in the error book, and occupies about a printed page of the testimony of the witness. Following the testimony admitted, is the testimony stricken out, which occupies three printed pages.

In the testimony stricken out is the following : To a question by the mother, “ Johnny, what did they shoot you for ?” the deceased replied, “ Very little cause, mother ; but Pete Smith has promised me this for a long time.” To another remark by the mother, “ Johnny, horv early they went down to shoot you,” he replied, “ That was their best chance, mother, because the carts never came in with their first loads before seven or half-past seven in the evening. Smith and Sweeny knew the time the loads came in just as well as I did; they thought they would catch me alone.” The mother asked: “ How came Tracy to be with you, Johnny ?” He answered : “Because I asked him to remain with me all night. I was afraid. I asked Tracy to stay with me. He said he would stay. I asked William Curry to remain with me the night before. He also did stay. Mother, I *768think I would get shot Tuesday morning only for haying William Curry with me.” The mother asked : “ Johnny, why do you think that ? ” He replied : “ Because Sweeny and another man came down in the morning between five and six, I think it “’as.”

The particulars of the interview between Sweeny and deceased on Tuesday morning, as related by the latter, were then called out by specific questions by the district attorney. It appeared from his statement to his mother that Sweeny called the deceased out of the shanty, and Sweeny said : “ What talk have you had about what you can do to me and Smith?” The deceased replied : “ I have no talk about what I can do to you.” Sweeny then called him a liar, and on the deceased saying, “ If you want any more satisfaction, I am man enough for you, if I only get fair play.” Sweeney said, “ We will not mind it now; we will have another time to fix this.” Further declarations of the deceased were proved to the effect that Sweeney and Smith had relatives in the police force, who would be able to prevent the mother “ getting any satisfaction for her son.”

We are of opinion that the court committed a legal- error, under the circumstances, in permitting proof of declarations of deceased in respect to facts not coming within the class of facts which may be proved by dying declarations from the record, and directing the jury to disregard them. There is no doubt of the proposition stated by the counsel for the people, that the question whether circumstances exist which make declarations admissible as dying declarations is a preliminary fact to be determined by the court, and that it cannot be left to the jury to say whether the deceased thought he was dying or not; for that must be decided by the judge, whose decision is reviewable on error, before he permits the declarations to be given in evidence. This was decided at a conference of all the judges of England in 1790, and has been generally accepted as'the rule in this country. 3 Russ. Cr. (4th Eng. Ed.) 266, and cases cited; *Donnelly*v. *State,*26 N. J. Law, *463;*1 Whart. § 681. It is a necessary result of this doctrine that the court must in the first instance hear the evidence bearing upon the condition of the declarant, and his sense of impending death. If on this inquiry the court determines that the circumstances justify the introduction of dying declarations, then, on their being offered, the question whether they relate to facts which may be proved by dying declarations arises, and is to be determined by the court in the ordinary way.

It is also well settled that dying declarations relating to transactions prior to the homicide, and not a part of the *res*gestae, are not admissible. The rule is stated by Abbott, C. J., in *Rex*v. Mead, 2 Barn. & C. 605, in language often quoted with *769approval, “ that evidence of this description is only admissible where tbe death of the deceased is the subject of the charge, and the circumstances of tbe death the subject of the dying dec-, laration.” 1 Greenl. Ev., § 156; *People*v. *Davis,*56 N. Y., 95; *Insurance Co.*v. *Mosley,*8 Wall., 397. The declarations of Hannon, to which we have referred, which were stricken out by the court, were clearly inadmissible under the rule, and were calculated seriously to prejudice the defendant. They supplemented with great force the evidence tending to show concert, deliberation, and premeditation. We think it was the duty of the court to have confined the preliminary examination to the facts relating to the declarant’s condition of mind and body at the time.

The whole examination was taken before the jury in the ordinary manner of taking testimony on the trial of an issue. It was, we think, the duty of the court, in fairness to the prisoner, and that a discreet administration of the criminal law required the court, to have called the attention of the witness, on the preliminary inquiry, to the particular point to which the inquiry was directed, and not to have permitted her to testify to declarations, not only irrelevant to the preliminary fact, but inadmissible on the main issue. The court not only omitted to call the attention of the witness to the point, but refused to permit the defendant’s counsel to examine her on the preliminary question until after the examination of the district attorney, covering the whole interview, had been concluded. The testimony stricken out was received after all the testimony admitted bearing upon the preliminary inquiry had been elicited. The part stricken out was evidence received subsequent to the evidence retained. It might happen that- a witness called to testify to dying declarations might, on the preliminary examination, through ignorance or want of discrimination, intermingle declarations as to the condition of the deceased with declarations relating to the crime. Such prejudice as the defendant might suffer in such a case he would have to bear as an unavoidable incident of the trial. But that is not this case.

We think the judge erred, and that, according to the suggestion of the court, made to counsel on the trial, an exception must be deemed to have been taken to the objectionable evidence and we think it quite clear that the error was not cured by striking it from the record, and instructing the jury to disregard it. *Erben*v. *Lorillard,*19 N. Y. 299; Allen, J., *Lindsay*v. People, 63 N. Y. *154; Furst v. Second-avenue R. R.,*72 N. Y. 542.

The judgment and conviction should therefore be reversed, and a new trial granted.

Peckham, J., concurs.