when the party is at the point of death and believes that all hope in this world is gone, they have some guarantee for their truth in view of the solemnity of the occasion; or as much as an oath in Court would have. liut it is clear that their value as evidence rests upon an assumption, and hence it is that while the law recognizes the necessity of admitting such proof on a par with an oath in a court of justice, it does not and cannot regard it as of the same value and weight as the evidence of a witness given in a court of justice, under all the tests and safeguards which are there afforded for discovering the truth — the object of judicial inquiry. For there the accused has the oppor tunity of more fully investigating the truth of the evidence by the means of cross-examination, and the jury have the opportunity of observing the demeanor of the person whose testimony is relied upon. The power of crossexamination is quite as essential, in the process of eliciting the truth, as the obligation of an oath; and where the life, or the liberty, of the defendant is at stake, the absence of the opportunity for cross-examination is a serious de privation, which differentiates in nature and in degree the evidence of a dying declaration from that which is direct and given upon the witness stand. Where, as in the present case, the evidence to convict the defendant is contained in an ante-mortem statement of the deceased, while it is entitled to be considered as having the weight of an oath, it would be wrong to say that it had all the weight which the law can give to evidence." " Speaking in a strict sense, the sanction of an oath and the sanction of such declarations are deemed to be the same, when the state of mind of the person is considered; but as it was said by Baron Alderson, in Ashton's case (2 Lewin, 147), ' though the sanction is the same, the opportunity of in vestigating the truth is very different, and therefore the accused is entitled to every allowance and benefit that he may have lost by the absence of the opportunity of more full investigation by the means of cross-examination.' This defendant denied having practiced an abortion, and testified as to statements by the deceased and as to facts which, if the jury had believed her, would have resulted in her acquittal. It was therefore of the utmost importance that the jury should not receive the incorrect impression that, however admissible in evidence the dying statement, it was as valuable or as authoritative for the purpose of proving the defendant's guilt as though the inculpatory evidence had been given by a witness in a court of justice and with every opportunity to the defendant to investigate its truth by means of cross-examination." We cannot conceive any reason for the • • Review's" doubt of the " soundness " of the doctrine that such declarations are impeachable by proof of previous contradictory statements. They ought to be so im peachable even more than ordinary declarations.
Inheritance by Murder. — In Ellerson v. Westcott, 148 N. Y. 149, this topic was passed upon. An heir-at-law brought a suit for partition of lands devised to the defendant, who was charged with having murdered the devisor. The Court held the action non-maintainable, saying: "The devise
took effect on the death of the testator, and trans ferred the legal title and right given her by the will. The relief which may be obtained against her is equitable and injunctive. The Court, in a proper action, will, by forbidding the enforcement of a legal right, prevent her from enjoying the fruits of her iniquity. It will not and cannot set aside the will. That is valid, but it will act upon facts arising subse quent to its execution and deprive her of the use of the property." This was explicitly put on the ground that the murder did not render the " apparent devise void," in the language of the statute of partition. The Court cite Riggs v. Palmer, and steer clear of it by saying : " The statute is our only guide, and having reached the conclusion that the facts alleged, if true, did not render the will void, the statutory condition does not exist which enables the plaintiff to bring that issue into this case. Section 1537 excludes by necessary implication a contest in partition between a plaintiff claiming as heir and a devisee in possession, except when this . apparent devise is void,' and that is not this case." It is not candid in the " Harvard Law Review" to say that this case does not "ex pressly overrule " Riggs v. Palmer. The Court ex pressly say, recognizing that authority, that a court "will defeat the fraud by staying her hand and enjoining her from claiming under the will." Riggs v. Palmer was an action to have the will cancelled and annulled so far as it devised and bequeathed property to the murderer. There is not the slightest criticism of that doctrine, but an express re-affirm ance of it in the last case. We hope the day is far distant when this court shall hold that a murderer may inherit or take under the will of his victim because the statutes have not said he shall not!
Incriminating Testimony. — One of the most important decisions of the United States Supreme Court, for several years, is that just announced in the Brown case, that a witness may not plead his privilege to refuse to give evidence on the ground that his testimony may tend to criminate him. under a statute that expressly provides that it shall not have that effect. This decision was made under the Interstate Commerce Act: The Commissioners have been greatly embarrassed by the refusal of witnesses to testify before them on this ground, and in many cases justice has been defeated or jeopardized. State decisions on the point have been conflicting. but this judgment settles the rule for all Federal cases. That the question is easily debatable and not free from reasonable doubt, is evident from the fact that it is established by a majority of one — four judges dissenting. We shall await the publication of the opinions in full with interest.
