1573.

#### Denton *v.*The State.

Conviction of manslaughter, from Jefferson superior court— Judge Eawlings. November 13, 1908.

Argued January 13, —

Decided March 23, 1909.

The homicide occurred at night on a country road near a house where a dancing party had been in progress, and where a quarrel had arisen among some of the male guests, among whom were the accused and the deceased. The testimony was in conflict, and was in some measure confusing. The accused in his statement contended that the deceased with others made a felonious and unprovoked assault upon him with a knife, etc., and that he fired his pistol in self-defense. A witness 'testified, that he saw the deceased between one and two o’clock on 'the night he was shot; his whole body was paralyzed, and he seemed to be in a dying condition; and in answer to the witness’s question, “What in the world is the matter with you; how came you to *4get shot?” he said, “I went out there where them boys was fussing; to try to stop the fuss; one of them Denton bo}^s shot me.” He died about seven hours later.

*3Russeix, J.

It is error requiring tlie grant of a new trial, in a ease where testimony tending to show a dying declaration is submitted to the jury, not to inform them that caution should be observed in the use of such evidence; and that although they may be satisfied that the alleged statement was made by the declarant in articulo mortis and in the consciousness of approaching dissolution, yet, in determining its probative value, the circumstances under which these statements were made may be considered with a view of ascertaining whether the deceased', at the time of his dying declaration, knew the facts related by him, or was only stating inferences and conclusions from facts which may or may not have rested in his knowledge, and whether the physical condition of the declarant or the circumstances of violence and surprise were calculated to impair his powers of observation or his memory. The jury should also be instructed, where the evidence authorizes such instruction, that they may consider whether the declarant’s account of the occasion was influenced by resentment, and therefore was biased and incomplete. *Judgment reversed.*

*4The court charged the jury: “One of the contentions of the State is that they have introduced proof of what is known as dying declaration. I charge you that dying declarations made by any person in the article of death, who is conscious of his condition, as to the cause of his death and the person who killed him, are admissible in evidence in a prosecution for the homicide. 1 charge you further, that if there was a statement made by the deceased after he was wounded and before he died, and at a time when he was conscious of his approaching end, his approaching death, as to the cause of his death and the party who killed, you may consider such statement along with the other testimony in the case, in ascertaining what the truth of the transaction is. I charge you further, that if there was a statement made by the deceased after he was wounded and before he died, but made at a time when, he was not conscious of his approaching death, that he made a statement, but when he made it he was not aware that he would die and was not conscious of his approaching death, you would not be authorized to consider it at all, but you would disregard it entirely and look to the other evidence in the case in making up your verdict.”

There was no complaint of the charge as given, but error was assigned on the refusal of a request to charge (on the same subject) as follows: “I charge you that great caution is necessary in the use of this kind of testimony; because, although there may have been an utter abandonment of all hope of recovery, it may often happen that the particulars of the violence of which the deceased has spoken occurred under circumstances of confusion and surprise, calculated to prevent their being accurately observed. The consequences also of the violence may occasion an injury to the mind and an indistinctness of memory as to the particular transaction. The deceased may have stated his inference from facts concerning which he may have drawn a wrong conclusion; or he may have omitted particulars, from not having his attention called to them. Such evidence is therefore liable to be incomplete. He may naturally also be disposed to give a partial account of the occurrence, although possibly not influenced by *5animosity or ill will. From these considerations the law recognizes and declares that dying declarations shall be received and used as testimony with great caution.”

*B. L. Gamble,*for plaintiff in error.

*Alfred Herrington, solicitor-general, Hines & Jordan,*contra.