Opinion Per PARKER, J. [58 Wash. We are then con them in evidence as her dying declaration. fronted with the single question, Was there such a certain reference to and reaffirmance of the former written and signed statements by the latter, as to make the former in fact her dying declarations, as if they had been actually made or repeated on December 10th? Dying declarations are to be received in evidence with great caution. As was said by this court in State v. Eddon, 8 Wash. 292, 297, 36 Pac. 139: "The trouble with this character of evidence is, that it is in its nature hearsay evidence and is in practical conflict with the constitutional right of the defendant to meet the witnesses, that testify against him, face to face; and is in conflict with his right to cross-examine such witnesses; and it is only tolerated on the ground of necessity growing out of the fact that murderers, by putting the witnesses, who are generally sole witnesses of the crime, beyond the power of testifying by killing them, will escape the consequences of their crime. It can only be justified on the presumption that the solemn realization of impending and inevitable death will take the place of the solemnity of an oath; and the greatest care and caution ought, therefore, to be exercised in the admission of this character of testimony." These views have been asserted in varying language by many courts and text writers. State v. Johnson, 118 Mo. 491, 502, 24 S. W. 229, 40 Am. St. 405; State v. Medlicott, 9 Kan. 357; Bell v. State, 72 Miss. 507, 513, 17 South. 232; Wharton, Homicide (3d ed.), p. 975. Not only must great care be exercised when considering the frame of mind of deceased at the time of making the statements, but it must also appear, with a great degree of certainty, that the statements attributed to the deceased are in fact the statements of the deceased. And when it is sought to show that former statements of the deceased were reaffirmed under a sense of impending death, then such statements must be referred to and reaffirmed with such a degree of certainty that there can be no doubt as to what previous statements are meant by the deceased to be reaffirmed. Where the statements sought to be Mar. 1910] Opinion Per PARKER, J. introduced in evidence are all made at one time without any reference to other previous statements made by deceased, there will usually be but little difficulty in determining what such statements really are; but when the words uttered at the time of the dying declaration are meaningless except as they refer to some former statement, there may be, as in this case, room for doubts to arise upon the question of the identity of the statements previously made and then referred to. Learned counsel for the state have cited cases from other states in support of the general rule that previous statements may become admissible as dying declarations by reaffirmance by the deceased while under a sense of impending death. They cite the following: Johnson v. State, 102 Ala. 1, 16 South. 99; People v. Crews, 102 Cal. 174, 36 Pac. 367; Snell v. State, 29 Tex. App. 236, 15 S. W. 722, 25 Am. St. 723; Wilson v. Commonwealth, 22 Ky. Law 1251, 60 S. W. 400; Mockabee v. Commonwealth, 78 Ky. 380; Bryant v. State, 35 Tex. Cr. 394, 33 S. W. 978, 36 S. W. 79; State v. MvEvoy, 9 S. C. 208. We do not think any of these cases are controlling under the facts presented here. We think in all of them, so far as can be gathered from their language, the prior statements of the deceased, reaffirmed under conditions making it a dying declaration, was identified by the deceased with much greater certainty than was the statement of December 3d identified by the deceased in this case. In the case of Harper v. State, 79 Miss. 575, 31 South. 195, 56 L. R. A. 372, we find a situation somewhat analogous to that here involved. A statement appears to have been prepared in writing with intent that it be signed by the deceased when he came to think he would die. In passing upon the admissibility of this paper as a dying declaration, the court said: "Moreover, we think a declaration prepared by a person in full possession of his mental faculties, and in confident hope Opinion Per PARKER, J. [58 Wash. of recovery, to be signed in possible event of a subsequent conviction of a fatal termination, is too much tainted to be admissible in evidence. Such a paper at the time of its preparation goes for nothing, of course; and when the time comes for execution of it, the tendency of human nature in extremis to be consistent and follow a formula, without effort, vitiates it. Such an instrument cannot be said to be the free and voluntary act of the person, originated and executed under a solemn sense of impending death." See, also, People v. Fuhrig, 127 Cal. 412, 59 Pac. 693; Cooper v. State, 89 Miss. 351, 42 South. 666. We think no court has gone to the extent of admitting in evidence statements, as dying declarations, made prior to the deceased's conviction of impending death, and claimed to have been reaffirmed by the deceased under a sense of impending death, except where the former statement has been referred to and identified with greater certainty than was shown in this case. We are of the opinion that the learned trial court was in error in admitting in evidence the statement of Madeline Longtain made on December 3d as a part of her dying declaration, claimed to have been made on December 10th. Little need be said concerning the remaining assignments of error, since for the most part they relate to matters which will not likely occur upon a new trial. Certain hypothetical questions, propounded and permitted to be answered by physicians as expert witnesses in behalf of the state, were objected to by counsel for appellant, upon the ground that the evidence did not tend to show all of the facts assumed by the questions. We think that while the evidence was somewhat meager relative to some of the assumed facts, we cannot say that the court abused its discretion in permitting the questions to be answered. Error is claimed upon the court's neglect to instruct the jury upon certain matters; but no request for such instructions was made, and the errors claimed do not relate to such matters as the court is bound to instruct upon, without request. It is also contended that defendant's motion for a di rected verdict should have been granted. This motion was based upon the theory that the evidence was such that the court should have taken the case from the jury and directed a verdict of not guilty. In this we think there was no error. In view of the fact that a new trial must be granted we deem it unwise to discuss the evidence. We conclude that a new trial must be granted. The judgment is therefore reversed, with directions to grant a new trial. RUDKIN, C. J., MOUNT, CROW, and DUNBAR, JJ., concur. [No. 8488. Department Two. March 26, 1910.] THE STATE OF Washington, on the Relation of John McKee et al., Respondents, v. A. G. MCNEILL, as Sheriff of Benton County, Appellant.1 EXEMPTIONS-PERSONS ENTITLED-FARMERS. Under a liberal construction of Rem. & Bal. Code, § 563, allowing exemptions to a farmer of a team, harness and wagon, "also farming utensils actually used about the farm," a team, harness and wagon need not be actually used about the farm or the farmer living thereon; it is sufficient if farming has been his principal occupation for years, that he had recently moved to town, sold or traded his homestead, and made arrangements to rent a ranch, intending to go upon and farm it. EXEMPTIONS-PERSONS ENTITLED-ABSCONDING DEBTOR-QUESTION OF FACT. Whether a debtor has forfeited his right to exemptions by reason of the fact that he was about to leave the state with intent to defraud his creditors presents only a question of fact. EXEMPTIONS-VALUE-APPRAISEMENT -WAIVER EFFECT. Under Rem. & Bal. Code, § 572, providing for an appraisement of property levied upon when it is claimed as exempt, a creditor who waives the appraisement and directs the sheriff to hold the property is precluded from raising any question as to the value of the property as stated in the debtor's claim of exemption. 'Reported in 107 Pac. 1028. Opinion Per PARKER, J. [58 Wash. Appeal from a judgment of the superior court for Benton county, Holcomb, J., entered July 22, 1909, upon findings in favor of the plaintiffs, after a trial on the merits before the court without a jury, in an action for a writ of mandate to release exempt property held under a writ of attachment. Affirmed. H. Dustin, for appellant. Linn & Boyle, for respondents. PARKER, J.-On June 4, 1909, under a writ of attachment issued out of the superior court against the relators, the defendant as sheriff seized and took into his possession the following property belonging to them: One brown gelding; one bay gelding; two gray mares; two colts; two sets of double harness; one hack; one wagon; and one wheat ranch. On June 5, 1909, the relators made and delivered to the sheriff a list of personal property belonging to them, verified as being a complete list of all their property. The items of property contained in this list included the property so seized and then in possession of the sheriff, and also certain household goods, and none other. The household goods were clearly within the exemptions of subd. 3, section 563 of Rem. & Bal. Code. At the same time the relators executed and delivered to the sheriff their claim for exemption in writing, demanding that the sheriff set over to them from the property so seized and in his possession, the two mares, one set of harness, and the wagon; claiming the same as exempt to them as farmers; and also demanding that the sheriff set over to them the balance of the property so seized and in his possession, which property they selected in lieu of property not possessed by them which would be exempt under subd. 4, section 563, claiming the same did not exceed $250 in value. The plaintiff in the attachment suit expressly waived his right to have the property appraised, refused to take any action in relation thereto, and directed the sheriff |