opprobrious epithets which provoked an as- 94 Ga. 78, 19 S. E. 891; Sams v. State, 124 sault.

Karr v. State, 100 Ala. 4, 46 Am. St. Rep. 17, 14 So. 851; People v. Campbell, 59 Cal. 243, 43 Am. Rep. 257; State v. Harris, 45 La. Ann. 842, 40 Am. St. Rep. 259, 13 So. The mere hasty use of harsh or angry 199; State v. Bartmess, 33 Or. 110, 54 Pac. words by the defendant, leading to an as- 167; State v. Tarter, 26 Or. 38, 37 Pac. 53; sault, will not shut off the right of self-de-State v. Hawkins, 18 Or. 476, 23 Pac. 475. fense, where there was no menacing act, and no intention to provoke an affray.

Lostine, Oregon, Oct. 22, 1906. Statement of Charles G. Sim:

shooting Sim, from the effects of which he After adducing further testimony on the died on the following day; that Sim was a point, the declaration, without objection, large and strong man, weighing 185 pounds, was admitted in evidence, as follows: but defendant was small in stature, weighing but 125 pounds; that deceased made a vicious assault upon him, and, considering his life in danger, and being physically un- I was sitting in parlor of Hotel Haun, able to defend himself, he drew the pistol as and Jimmie Doris said: "Come out, Charthe only means of self-preservation, but that, ley. I want to talk to you." I stepped out, when he did so, he expected to stop the at- and Flossie Haun and Jimmie Doris and O. tack upon him without the necessity of W. Pagan was present. He said: "Did you shooting his assailant. The trouble appears tell Flossie Haun that he (Doris) said that to have had its inception in a remark which they could not play for the dance?" I said, decedent quoted defendant with having "No," at first. Then Flossie asked him if made, to the effect that certain young ladies he didn't tell me that Jimmie Doris said in the vicinity could not play for a dance so, and I said, "Yes." Then Doris called which was soon to take place, and in the me a damned liar. Then I caught him with arranging of which defendant was one of my left on his jaw. I was standing close the committee. It appears that defendant, enough to do so. Just as I struck him he on hearing of the statement, called upon fired. He must have had his gun ready to Sim for an explanation; that he first de- fire. I have no gun, and no not own one. nied having made the remarks attributed to I never had any trouble with him before. him, but, on being reminded of his state- He made a nasty remark in his paper some ments by one of the young ladies present, time ago about two members of the Mcadmitted having used the imputed words, Curdy family been doing the town. I then whereupon defendant called him a “d—d asked, "Who edited the locals?" and he liar," when deceased, who was but a few said: "That is my business." I didn't say feet away, made the alleged assault, with a word. Charles G. Sim. the result indicated.

At the trial witnesses were called by the state who testified that Sim, on the day of his death, was told by his physician and friends present that he could not recover, whereupon he was requested to make such statement as he desired concerning the trag. edy.

After reading the paper, Mr. Sim requested to add that, just before he called him a d-d liar, he turned away and said: "Oh, it doesn't amount to anything anyway, and there was no harm done." S. P. Crow. Witnesses:

W. R. Hislop.
Dr. E. R. Seely.
S. L. Magill.

After the state rested, a witness to the

On cross-examination facts were elicited tending to show that, although decedent was very weak, and it appearing that death was near, of which he was informed by the phy-making of the declaration was called, who sician in attendance, he entertained hopes testified that all the statements made by of recovery, concerning which the physician, the declarant at the time were not included the state's witness, testified on cross-examination as follows:

Q. State whether or not you had informed him of his condition before he made this

statement?

You can

A. I did. He says, "Doctor, what do you think about my case?" I says: "Sim, I will have to be honest with you. look for the worst; expect the worst,"-I says. And his remarks he made, if you asked for them, he says, "Why," he says, "Why should I die? I feel stronger now than I did last night, and I'll tell you," he says, "I have been in worse shape than this," or words to that effect. He said he had typhoid fever at one time, and he says: "It will be probably necessary to have some brandy handy, and if it is necessary, give me brandy." And I gave him hopes then. and I felt like being as hopeful with him as I possibly could.

in the written statement. After saying that and answers, the substance of which was the declaration was obtained by questions written down and afterwards corrected by declarant was asked concerning his "intenthe deceased, the witness stated that the tion at the time that he struck the defendhim a thrashing," and that decedent anant; if he intended to follow it up by giving swered, "Yes," that he intended to punish defendant, and "would have done so if he had not got him, or shot him." The witness was then interrogated as to what, if any. thing, was said to Sim just before he made this statement in relation to the purpose thereof and the probability of his recovery and as to the purpose for which the dying declaration was made, objections to which were made and sustained. The following offer was then made by the defense, but denied by the court: "Defendant offers to

ness sworn and testifying in the cause might, in their judgment, be entitled to receive. And, from the rulings made and instructions given, this appears to have been the position of the court below.

In this connection it will be noted that the evidence offered is far from being conclusive as to whether, at the time the declarant made his statement, he believed death was near. He, at least, manifested some doubt on the subject, and the doctor present testified that he gave him some hope. The statement, however, was admitted without objection, except as to certain specified parts thereof, from which it follows that the inquiry as to whether the declaration was admissible in the first instance is not before us, and the questions arising on that point being argued and presented by the parties hereto on the assumption that the preliminary inquiry disclosed sufficient facts to make the declaration prima facie admissible, it will be so treated here. But, conceding its admissibility in the first instance, it appears from the evidence before the jury, as well as from the proffered testimony, that the question as to whether declarant was in such a condition and state of mind as to entitle his statements to the same degree of credit as is usually given to one who is in extremis, and has no hope whatever of recovery, and as to whether he was not given sufficient encouragement to justify him in entertaining strong hopes of recuperation, is one concerning which reasonable minds might draw different inferences and reach different conclusions. From this it follows that the final determination thereof should have been left to the jury, as would that of any other fact bearing upon the innocence or guilt of the accused. As stated by Mr. Chief Jus tice Lord in State v. Shaffer, 23 Or. 555, 560, 32 Pac. 545, 547: "The rule of law undoubtedly is that the credibility of dying declarations is to be determined by the jury in view of all the circumstances under which they were made." The authorities on this point are confusing, and are far from being harmonious. This, however, is largely the result of the application of the rule to the facts in the different cases, without reference to exceptions thereto. It is proper and necessary in all cases that the court should make a preliminary inquiry as to whether any statement offered as a dying declaration was made under a sense

prove by the answer to the last question thereto, to which the testimony of any witpropounded that, just before making the statement introduced in evidence, parties in the room, and, among others, Mrs. Haun, said to Sim, 'We are not afraid but that you are going to get well all right, but we want your evidence so as to punish him just as hard as we can,' and then Sim immediately after made the statement introduced in evidence; and, for the purpose of proving this, we ask to renew the question just asked, and to have the court permit the same to be answered." After the case was closed, counsel for defendant, as bearing on the point, requested the court to instruct the jury that "the dying declaration of the deceased has been offered in evidence, but this ought not to be considered by you, unless it was made under a sense of impending death; and, if you believe from the evidence that the deceased did not expect to die, but expected to get well at the time this statement was made, you should give it no consideration whatever." This was refused, and the court, over objections thereto, inter alia, said to the jury: "In this case the dying declarations of the deceased have been introduced in evidence and read to you. The law presumes that the deceased, when fatally wounded, with knowledge of the fact of his condition and that he must presently die, is so impressed with the solemnity of the occasion and his surroundings that he has every inducement to speak the truth as fully as though he were under oath, and I instruct you that the dying declarations of the deceased introduced in evidence in this case are entitled to be considered by you as other evidence in the case given by witnesses under oath before you, and you are entitled to give the same such consideration and weight as you think, under all the circumstances, the same is entitled to." The point raised by the testimony of fered and instruction requested, as well as objection to the instruction given, is that, after the declaration was admitted, the jury should have been permitted to determine whether the statements were made under such circumstances as would entitle them to consideration as the dying declaration of decedent, and accordingly what, if any, weight should be given thereto; and that, in order to determine the weight and credibility thereof, the testimony as to all the facts connected therewith should have been admitted; while the state insists that the question is one for the determination of the court alone, and that, when the statement of impending death, and that, before the adwas once admitted in evidence, the jury were precluded from questioning it, or considering the incidents surrounding the declaration, but bound to treat and consider it in the same manner, and give the same credit

mission thereof, evidence should be heard upon this question. This preliminary inquiry into whether the surrounding circumstances constitute sufficient predicate for the admission of the declaration is solely within

the province of the court, and reviewable we can perceive no reason why the same only for an abuse of discretion. 4 Enc. Ev. p. 947; State v. Shaffer, supra; People v. Brecht, 120 App. Div. 769, 105 N. Y. Supp. 436. On this point the authorities appear harmonious. Where but one deduction can reasonably be drawn from the testimony, and it is to the effect that the declaration was made in extremis, under a sense of impending death, the court must admit the declaration; and its admission is conclusive upon the jury, which, under such circumstances, should be so instructed. But, if the predicate for the dying declaration appears doubtful and of such character that men of average reason and prudence might draw different conclusions therefrom, the inquiry then becomes one of fact, and must finally be submitted to the jury.

principle should not be applicable to dying declarations. The rule thus announced is recognized and upheld by the great weight of authority on the subject, among which are Roesel v. State, 62 N. J. L. 216, 41 Atl. 408; People v. Howes, 81 Mich. 396, 45 N. W. 961; Hardy v. United States, 3 App. D. C. 35; State v. Vincent, 16 S. D. 62, 91 N. W. 347; People v. White, 176 N. Y. 331, 68 N. E. 630; Hamlin v. State, 39 Tex. Crim. Rep. 579, 47 S. W. 656. To further illustrate, a written instrument might be offered in evidence, preliminary to which the court would first demand proof as to the signature, etc.; and if, after being satisfactorily shown, it is admitted, only a clear abuse of discretion would be reviewable on appeal. But when once admitted any testimony showing forgery thereof, or, if genuine, any doubtful and unfavorable circumstances under which it may have been signed, such as duress, intoxication, or insanity, when properly in issue, would be entitled to go to the jury to enable them to determine the weight to be given thereto, even to rejecting it entirely, if they chose to do so. And, as stated by Mr. Justice Weaver in State v. Phillips, 118 Iowa, 660, 674, 92 N. W. 876, 881: "A familiar illustration of the principle we believe applicable here may be found in the case of a party charged with a crime alleged to have been committed in pursuance of a conspiracy. Upon a prima facie showing of such unlawful combination, the court may admit the acts and statements of an alleged cocon

In this respect the question under consideration is analogous to that where a confession of a defendant is offered in evidence, in which the court is called upon to preliminarily determine whether it was freely and voluntarily made; but where, under the evidence, the question as to whether made, and circumstances surrounding it, is involved in doubt, it is for the jury ultimately to pass upon its character and determine whether it was made in the manner claimed for it, in order to ascertain the weight to be given thereto. State v. Rogoway, 45 Or. 601, 78 Pac. 987, 81 Pac. 234; State v. Banister, 35 S. C. 290, 14 S. E. 678; People v. Oliveria, 127 Cal. 376, 59 Pac. 772. In State v. Rogoway, 45 Or., at page 607, Mr. Justice Bean says: "The evidence for the state tended to show that the alleged confession of the de-spirator as evidence against the party on fendant was voluntarily made; and, while this evidence is controverted and contradicted, there is not sufficient in the record to justify this court in saying that the trial court erred in holding that the confession was competent and admissible as testimony. The admissibility of the testimony was for the court, and its credibility and weight were for the jury, and were properly submitted to them." In stating that "the admissibility was for the court," the opinion has reference to its admission in the first instance, and not to the procedure after once received in evidence. In Wilson v. United States, 162 U. S. 613, 624, 40 L. ed. 1090, 1096, 16 Sup. Ct. Rep. 895, 900, on this point, Mr. Chief Justice Fuller says: "When there is a conflict of evidence as to whether a confession is or is not voluntary, if the court decides that it is admissible, the question may be left to the jury, with the direction that they should reject the confession, if, upon the whole evidence, they are satisfied it was not the voluntary act of the defendant." This is clearly the rule in respect to the admission of confessions, and

trial; but the admission of such evidence is not conclusive of the existence of the conspiracy, and it is the court's duty to instruct the jury that, unless they find the conspiracy has been proven, the testimony as to the acts and statements of the third party must be eliminated from their consideration in reaching their verdict. 2 McClain, Crim. Law, 989; Loggins v. State, 12 Tex. App. 65. We think, therefore, that the preliminary decision by the court goes simply to the admissibility of the evidence, and that the jury is not only at liberty, but is bound, to take into consideration all the testimony bearing upon the character of the alleged dying declaration, and the circumstances under which it was made; and, furthermore, that, in view of the peculiar and exceptional nature of such evidence, and the care with which the court restricts its admission and consideration, the jury should have explicit instruction in the premises."

Applying these principles here, the state offered testimony tending to show that the alleged declaration was made under a sense

The question as here presented has not

of impending death, after which the decla- | State v. Banister, 35 S. C. 290, 14 S. E. ration was admitted in evidence. But, to 1 678; Walker v. State, 37 Tex. 366; State v. enable the jury fairly and properly to de- Eddon, 8 Wash. 292, 36 Pac. 139. termine its weight and credibility, testimony as to all circumstances bearing upon, heretofore been squarely before this court. and immediately connected with, its execu- In State v. Foot You, 24 Or. 61, 66, 32 Pac. tion, including all statements made at the 1031, 1032, 33 Pac. 537, Mr. Justice Bean, time to and by the decedent as to his con- in speaking for the court, says: "The comdition, and by him as to his sense thereof, petency of dying declarations is a matter as well as anything tending to throw light for the court to determine, but, after they upon the motive prompting him to make a have been admitted, their weight and credistatement, should have been admitted and bility become questions of fact for the jury, submitted to the jury for their considera- and they are entitled to such weight only tion. To hold otherwise would be to per- as the jury may, under all the circumstances mit the opinion of the court upon one of of the case, think proper to give them." the vital issues to be conclusive upon the The question there under consideration rejury; and, notwithstanding the circum-lated only to the admissibility, in the first stances and influences surrounding the de- instance, of the statements obtained by quesceased at the time of making the declara- tions propounded to declarant, on his deathtion, including the conflict of testimony, might make it ever so questionable, such rule, if recognized, would make it incumbent upon the jury to find that the declarant was in extremis and acting under a sense of impending death, and to give the same weight and credit to his statements as if he were living, and without cross-examination had, under oath, made the recital attributed to him. "Whether the declaration," say the court in People v. Thomson, 145 Cal. 717, 724, 79 Pac. 435, 437, "was in fact made under a sense of impending death, is a question that most materially affects the question as to its credibility, and the determination of the court thereon is not conclusive upon the jury. They have the right, in considering whether they shall accept the declaration as a correct statement, to determine for themselves whether the declarant was in extremis, and fully convinced of that fact when making the declaration, and are at liberty to disregard it, if not satisfied that it was made under a sense of impending death." The court, after further observations to the above effect, through Mr. Justice Holmes, in Com. v. Brewer, 164 Mass. 577, 582, 42 N. E. 92, 94, says: "When the admissibility of evidence depends upon a collateral fact, the regular course is for the judge to pass upon the fact in the first instance, and then, if he admits the evidence, to instruct the jury to exclude it if they should be of a different opinion on the preliminary matto full consideration as a dying declaration, ter." See also 1 Greenl. Ev. 14th ed. § 160; Gillette, Collateral Ev. § 203; 1 McClain. Crim. Law, § 430; Findley v. State, 125 Ga. 579, 54 S. E. 106; Carter v. State, 2 Ga. App. 254, 58 S. E. 532; State v. Phil lips, 118 Iowa, 660, 92 N. W. 876; Starkey v. People, 17 Ill. 17; Nordgren v. People. 211 Ill. 425, 71 N. E. 1042; State v. Reed. 53 Kan. 767, 42 Am. St. Rep. 322, 37 Pac. 174; Martin v. State, 17 Ohio C. C. 406;

bed, by the counsel for the prosecution, without cross-examination, as to which the court held that, while not sufficient to exclude the declaration, they were all matters affecting the credibility and weight, and were for the consideration of the jury. In Wilson v. United States, 162 U. S. 613, 40 L. ed. 1090, 16 Sup. Ct. Rep. 895, Mr. Chief Justice Fuller, in passing on the question as to whether the admissions there under consideration were made under such circumstances as to entitle them to consideration, says: "These were matters which went to the weight or credibility of what he said. . . ." So in the case at bar the circumstances surrounding the making of the declaration, and the point as to whether it was made under a sense of impending death, were questions of vital importance, a knowledge of which was essential to a proper determination by the jury to the effect, weight, and credit to be given to the statements of declarant, and, unless the jury believed that it was so made, it became their duty to disregard the purported dying declaration and reach their conclusion from other testimony before them. But the instruction given on the subject assumes, and, in fact, conveys to the jury, as an indisputable fact, that the declarant was in extremis and under a full sense of impending death in every respect, and that his declaration was made while he was in such a frame of mind as to entitle his statement

and that the same weight should be given his statements as might be given to other evidence in the case. It is clear that the proof offered by the defense, bearing on the points considered, should have been admitted; that the instruction requested, or one of similar import, should have been given; and that the instruction as given is erroneous.

Since the cause must be remanded for retrial, it is important that other errors urged