Fear or even belief that illness will end in death will not avail of itself to make a dying declaration. There must be a settled hopeless expectation that death is near at hand, and what is said must have been spoken in the hush of its impending presence. Despair of recovery may indeed be gathered from the circumstances if the facts support the inference. There is no unyielding ritual of words to be spoken by the dying. Despair may even be gathered though the period of survival outruns the bounds of expectation. The state of mind must be exhibited in the evidence, and not left to conjecture.
Defendant was convicted of the murder of his wife by poisoning with bichloride of mercury. The trial court admitted evidence of a conversation between the wife, then ill in bed, and her nurse. The wife asked the nurse to bring a bottle of whisky that would be found upon a shelf, and said that this was the liquor she had taken just before collapsing. She asked whether enough was left to make a test for the presence of poison, insisting that the smell and taste were strange, and that her husband had poisoned her.
Were the statements to the nurse, though incompetent as dying declarations, admissible for any other purpose?
The testimony was neither offered nor received for the strained and narrow purpose now suggested as legitimate. It was offered and received as proof of a dying declaration. A trial may become unfair if testimony offered and erroneously accepted for one purpose, is used in an appellate court as though admitted for a different purpose, unavowed and unsuspected.