¶1 dissenting. I cannot concur with the majority of the Court, in their opinion as to admission of the declaration of the deceased. A witness for the prosecution was put on the stand, who said:
*501 ' “Freize said, ‘I am cut to death and killed,’ or words to that effect. I asked him who were connected with the difficulty? He said Brown and Humphries had cut him.”
¶2 Upon this statement the testimony was admitted. The rule in this State is, death must be imminent at the time the declaration is made, and the deceased must be so fully aware of this as to be without hope of life. Dr. Davis said:
“He was dying when I saw him. I had no hope for him; told him I didn’t think he was going to live. . He said he did not think he was going to die; didn’t think he would be able to get to Court that week, but would not make a dying statement. Death was imminent, but it is evident to me that the deceased was not without hope of life.”
¶3 Some people use the strongest language they know on all occasions, and it seems to me that something further should be shown than “I am killed,” especially when the two physicians say, in effect, that the hope of life was so strong that the deceased did not believe their statement that he would die, but, on the contrary, expected an early recovery.
¶4 If the statement of the sheriff was allowed, then I think the statement of the nurse should also have been admitted. Death was nearer. Now eliminate the testimony of the doctors, as I think we must do, to allow the dying declaration at all; then there is a presumption that a condition once shown to exist continues until a change is shown. The first statement was made while the heat of battle had little time to cool. The latter statement was made after there was time for reflection. The second statement was by the nurse: “ T said, who cut you ?’ He said, T don’t know, it was dark.’ ” A free fight and a dark night makes the second statement highly probable.
¶5 We are considering rules for other cases, as' well as this case. I do not think this is in conflict with the cases cited in the majority opinion. The danger of the “fabrication of false testimony” is greater with the prosecution than the defense. Unless the deceased is permitted t'o live only a, few *502 minutes, he is likely to die surrounded by his friends. It may be a fearful weapon in the hands of the prosecution, and leave the defendant powerless to protect himself against its use.