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Opinion of the Court.

tent for one party to prove this conversation, it was equally competent for the other party to prove their version of it. It may not have differed essentially from the government's version, and, it may be, that defendant was not prejudiced by the conversation as actually proved, but where the whole or a part of a conversation has been put in evidence by one party, the other party is entitled to explain, vary or contradict it.

3. There was also error in refusing to permit the defendant to prove by certain witnesses that the deceased, Anna Maledon, made statements to them in apparent contradiction to her dying declaration, and tending to show that defendant did not shoot her intentionally. Whether these statements were admissible as dying declarations or not is immaterial, since we think they were admissible as tending to impeach the declaration of the deceased, which had already been admitted. A dying declaration by no means imports absolute verity. The history of criminal trials is replete with instances where witnesses, even in the agonies of death, have through malice, misapprehension or weakness of mind made declarations that were inconsistent with the actual facts; and it would be a great hardship to the defendant, who is deprived of the benefit of a cross-examination, to hold that he could not explain them. Dying declarations are a marked exception to the general rule that hearsay testimony is not admissible, and are received from the necessities of the case and to prevent an entire failure of justice, as it frequently happens that no other witnesses to the homicide are present. They may, however, be inadmissible by reason. of the extreme youth of the declarant, Rex v. Pike, 3 C. & P. 598, or by reason of any other fact which would make him incompetent as an ordinary witness. They are only received when the court is satisfied that the witness was fully aware of the fact that his recovery was impossible, and in this particular the requirement of the law is very stringent. They may be contradicted in the same manner as other testimony, and may be discredited by proof that the character of the deceased was bad, or that he did not believe in a future state of rewards or punishment. State v. Elliott, 45 Iowa, 486; Commonwealth v. Cooper, 5 Allen, 495; Goodall v. State, 1 Oregon,

Opinion of the Court.

333; Tracy v. People, 97 Illinois, 101; Hill v. State, 64 Mississippi, 431.

It is true, that in respect to other witnesses, a foundation must-be laid for evidence of contradictory statements by asking the witness whether he has made such statements, and we have held that where the testimony of a deceased witness, given upon a former trial, was put in evidence, that proof of the death of such witness, subsequent to his former examination, will not dispense with this necessity. Mattox v. United States, 156 U. S. 237. That case, however, was put upon the ground that the witness had once been examined and crossexamined upon a former trial. We are not inclined to extend it to the case of a dying declaration, where the defendant has no opportunity by cross-examination to show that by reason of mental or physical weakness, or actual hostility felt toward him, the deceased may have been mistaken. Considering the friendly relations which had existed between the defendant and the deceased for a number of years, their apparent attachment for each other, and the alcoholic frenzy under which defendant was apparently laboring at the time, the shooting may possibly not have been with deliberate intent to take the life of the deceased, notwithstanding the threats made by the defendant earlier in the evening. In nearly all the cases in which the question has arisen evidence of other statements by the deceased inconsistent with his dying declarations has been received. People v. Lawrence, 21 California, 368 (an opinion by Chief Justice Field, now of this court); State v. Blackburn, 80 N. C. 474; McPherson v. State, 9 Yerg. 279; Hurd v. People, 25 Michigan, 405; Battle v. State, 74 Georgia, 101; Felder v. State, 23 Tex. App. 477; Moore v. State, 12 Alabama, 764.

Our attention has been called to but one case to the contrary, viz., Wroe v. State, 20 Ohio St. 460, cited with apparent approval in the Mattox case. But we think, as applied to dying declarations, it is contrary to the weight of authority.

As these declarations are necessarily ex parte, we think the defendant is entitled to the benefit of any advantage he may have lost by the want of an opportunity for cross-examination. Rex v. Ashton, 2 Lewin C. C. 147.

Opinion of the Court.

The disposition we have made of these assignments renders it unnecessary to consider the others. The judgment of the

court must be

Reversed, the conviction set aside, and a new trial ordered.

MR. JUSTICE BREWER and MR. JUSTICE PECKHAM Concurred in reversing upon the sixth assignment only.

Decisions announced without Opinions.

DECISIONS ANNOUNCED WITHOUT

OPINIONS

DURING THE TIME COVERED BY THIS VOLUME.

No. 17. HENRY V. ALABAMA AND VICKSBURG RAILROAD COMPANY. Appeal from the Circuit Court of the United States for the Southern District of Mississippi. Submitted October 15, 1896. Decided October 19, 1896. Per Curiam. Dismissed with costs, on the authority of Jacobs v. George, 150 U. S. 415. Mr. Wade R. Young for appellant. No appearance for appellee.

No. 20. TUCKER v. MCKAY. Appeal from the Circuit Court of the United States for the District of Massachusetts. Argued October 15, 1896. Decided October 19, 1896. Per Curiam. Dismissed for the want of jurisdiction, on the authority of Smith v. McKay, 161 U. S. 355. Mr. Charles Allen Taber for appellant. Mr. James J. Myers filed a brief for appellee, but the court declined to hear him.

No. 508. KING v. UNITED STATES. Error to the Circuit Court of the United States for the Western District of Arkansas. Per Curiam. Judgment reversed upon confession of error by counsel for the defendant in error, and cause remanded for further proceedings in conformity to law. Mr. Solicitor General, Mr. Assistant Attorney General Whitney and Mr. Assistant Attorney General Dickinson for defendant in error.

No. 333. UNITED STATES ex rel. LONG v. LOCHREN. Error to the Court of Appeals of the District of Columbia. Submitted October 13, 1896. Decided October 26, 1896. Per Curiam. Dismissed without costs to either party, on authority of United States v. Boutwell, 17 Wall. 604, and other cases. Mr. Solicitor General and Mr. Assistant Attorney General Whitney for the motion to dismiss. Mr. Thomas S. Hopkins and Mr. Frederick A. Baker for Long.

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