¶1It is well settled, that in the trial of cases for homicide, the declarations of the deceased, made under the belief that his end is near, are admissable, not only to designate the party who committed the crime, but also to detail the circumstances under which it was done. But these declarations must be made when the belief of death is present to the mind of the declarant, and when he believes there is no hope of recovery, but that he must die of the wounds or injury received. Declarations made under such circumstances, are considered as made under circumstances equally solemn, as if made under the obligations of an oath, and are admissible. But it is the duty of the court to determine, in the first place, upon the admissibility of such declarations, and then it is for the jury to determine upon the weight, or credibility of them. [1 Greenl. Ev. 190.]
¶2The facts disclosed'by the record, in this cause, must satisfy any mind that the declarations were made at a time when the deceased was without hope of life, on earth, and under the belief of impending death. There was no error, therefore, in permitting the declarations to go to the jury.
¶3But it is objected, that the relation of husband and wife, existing at the time, between the accused and the deceased, rendered the declarations incompetent proof. This is not the law. One of the first cases in which the question arose, upon the admissibility of dying declarations, was that of Woodcock, and the deceased was his wife. Her declarations were received as evidence. [2 Stark. Ev. 458.] And it is well settled, that a wife may be a witness in a criminal proceeding, against her husband, for injuries done to her person ; and there is no reason whatever, why a husband should not foe a competent witness against his wife, for injuries done *767him. But in the charge of the court, as given, there is error. It must be borne in mind, that the evidence showed, that the deceased might be rational at one moment — insane, or irrational at another. On one day he said, in answer to the question, “ do you know that Mrs. Moore did it?” “ oh yes, well enough, well enough.” At a subsequent day it was testified, that he said, she “ did not do it.” It may be fairly inferred, that at one time he accused her as the guilty agent, and at a subsequent time, acquitted her of guilt.
¶4We conceive the rule to be, that the dying declarations of the deceased may be given in evidence, as well to acquit, as to convict the accused, and they are not limited, as evidence in favor of the State alone. [See 1 Greenl. Ev. 190; Rex v. Scaife, 1 Mood. & R. 551.]
¶5Here the declarations of the deceased were inconsistent with each other. There was then a direct conflict of testimony. It was the province of the jury to weigh the testimony, to reconcile it if they could, and if it could not be, then to determine which to believe. The declarations of the deceased, if made, as stated in the bill of exceptions, were in direct conflict with each other, and it was the duty of the jury to determine which declaration was true, or to which they gave credit as true. The charge of the court took from them this duty, and determined that the contradictory declarations of the deceased, neutralized each other. Whether they did or not, or whether either, or which one was true, was by law, the duty of the jury to determine — not that of the court; and for this error, the cause is reversed, and remanded, that the prisoner may be again tried, unless, in the mean time, she be discharged by due course of law.