delivered the opinion of the Court.
The petitioner, Charles A. Shepard, a major in the medical corps of the United States army, has been, convicted of the murder of his wife, Zenana Shepard, at Fort Riley, Kansas, a United States military reservation. The jury having qualified their verdict by adding thereto the words “without capital punishment” (18 U.S.C. §567), the defendant was sentenced to imprisonment for life. The judgment of the United States District Court has been affirmed by the Circuit Court of Appeals for the Tenth Circuit, One of the judges of that court dissenting. 62 F. (2d) 683; 64 F. (2d) 641, A writ of certiorari brings the case here.
The crime is charged to have been committed by poisoning the victim with bichloride of mercury. The defendant was in love with another woman, and wished to make her his wife. There is circumstantial evidence *98 to sustain a finding by the jury that to win himself his freedom he turned to poison and murder. Even so, guilt was contested and conflicting inferences are possible. The defendant asks us to hold that by the acceptance of incompetent evidence the scales were weighted to his prejudice and in the end to his undoing.
The evidence complained of was offered by the Government in rebuttal when the trial was nearly over. On May'2-2, 1929, there was a conversation in the absence of the defendant between Mrs. Shepard, then ill in bed, and Clara Brown, her nurse. The patient asked the nurse to go to the closet in the defendant’s room and bring a bottle of whisky that would be found upon a shelf. When the bottle was produced, she 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 then she added the words “ Dr. Shepard has poisoned me.”
' The conversation was proved twice. After the first proof of it, the Government asked to strike it out, being doubtful of its competence, and this request was granted. A little later, however, the offer was renewed, the nurse having then testified to statements by Mrs. Shepard as to the prospect of recovery. “ She said she was not going to get well; she was going to die.” With the aid of this new evidence, the conversation already summarized was proved, a second time. There was a timely challenge of the ruling.
She said, “ Dr. Shepard has poisoned me.” The admission of this declaration, if erroneous, was more than unsubstantial error. As to that the parties are agreed. The voice of the dead wife was heard in accusation of her husband, and the accusation was accepted as evidence of guilt. If the evidence was incompetent, the verdict may not stand.
*99 1. Upon the hearing in this court the Government finds its main prop in the position that what was said by Mrs. Shepard was admissible as a dying declaration. This is manifestly the theory upon which it was offered and re-; ceived. The prop, however, is a broken reed. To make out a dying declaration the declarant must have, spoken without hope of recovery and in the shadow of impending death. The record furnishes no proof of that indispensable condition. So, indeed, it was ruled by all the judges of the court below, though the majority held the view that the testimony was competent for quite another purpose, which will be considered later on.
We havé said that the declarant was not shown to have spoken without hope of recovery and in the shadow of-impending death. Her illness began on May 20. She w^s found in a state of collapse, delirious, in pain, the pupils of her eyes dilated, and the retina suffused with blood. The conversation with the nurse occurred two days later. At that time her mind had cleared up, and her speech was rational and orderly: There was as yet no thought by any of her physicians that she was dangerously ill, still less that her case was hopeless. To all seeming she had greatly improved, and was moving forward to recovery. There had been no diagnosis of poison as the cause of her distress. Not till about a week afterwards was there a relapse, accompanied by an infection of the mouth, renewed' congestion of the eyes, and later hemorrhages. of the bowels. Death followed on June 15.
Nothing in the condition of the patient on May 22 gives fair support to the conclusion that hope had then been lost. She may have thought she was going to die and have said so to her nurse, but this was consistent' with hope, which could not have been put aside without more to quench it. Indeed, a fortnight later, she said to one of her physicians, though her condition was then grave,
*100
“ You will get me well, won’t you? ” 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 ” (Willes, J. in
Reg.
v.
Peel,
2 F. & F. 21, 22) that death is near at hand, and what is said must have been spoken in the hush of its impending presence.
Mattox
v.
United States,
What was said by this patient was not spoken in that mood. There was no warning to her in the circumstances that her words would be repeated and accepted as those of a dying wife, charging murder to her husband, and charging it deliberately and solemnly as a fact within her knowledge. To the focus of that responsibility her mind was never brought. She spoke as one ill, giving voice to the-beliefs1 and perhaps the conjectures of the moment. The liquor was to be tested, to see whether her beliefs were sound. She did .not speak as one dying, announcing to the survivors ,a definitive conviction, a legacy of knowledge on which the world might act when she had gone.
The petitioner' insists that the form of ui. declaration exhibits other defects that call for its exclusion, apart from the objection that death was hot imminent and that
*101
hope was still alive. Homicide may not be imputed to a defendant on the basis of mere suspicions, though they are the suspicions of the dying. To let the declaration in, the inference must be permissible that there was knowledge or the opportunity for knowledge as to the acts that are declared. Wigmore, § 1445 (2). The argument is pressed upon us that knowledge and. opportunity are excluded when the declaration in question is read in the setting of the circumstances. On the one side are such cases as
Berry
v.
State,
2. Wé pass to the question whether the statements to the nurse, though incompetent as dying declarations, were admissible on other grounds.
The Circuit Court of Appeals determined that they were. Witnesses for the defendant had testified to declarations by Mrs. Shepard which suggested a mind bent upon suicide, or at any rate were thought by the defendant to carry that suggestion. More than once before her illness she had stated in the hearing of these witnesses that she had no wish to live, and had nothing to live for, and on one occasion she added that she expected some day to make an end to her life. This testimony- opened the door, so it is argued, to declarations in rebuttal that she had been poisoned by her husband. They were admissible, in that view, not as evidence of the truth of what was said, but as betokening a state' of mind inconsistent .with the presence of suicidal intent.
(a) 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. What was said by Mrs. Shepard lying ill upon her deathbed was to be weighed as if a like statement had been made upon the stand. The course of the trial makes this an inescapable conclusion. The Government withdrew the testimony when it was unaccompanied by proof that the declarant expected to dife. Only when proof of her expectation had been supplied was the offer renewed and the testimony received again. For the reasons already considered, the proof was inadequate to show a consciousness of impending death and the abandonment of hope; but inadequate though it was, there can be nó
*103
doubt of the purpose that it was understood to serve. There is no disguise of that purpose by counsel for the Government. They concede in all candor that Mrs. Shepard’s accusation of her husband, when it was finally let in, was received upon the footing of a- dying declaration, and not merely as indicative of the persistence of a will to live. Beyond question the jury considered it for the broader purpose, as the court inténded that they should. A different situation would be here if we could fairly say in the light of the whole record that the purpose had been left at large, without identifying token. There would then be room for argument that demand should have been made for an explanatory ruling. Here the course of the trial put the defendant off his guard. The testimony was received by.the trial judge and offered by the Government with the plain understanding that it was to be used for an illegitimate purpose, gravely prejudicial. A trial becomes unfair if testimony thus accepted may be used in an appellate court as though admitted for a different purpose, unavowed and unsuspected.
People
v.
Zackowitz,
(b) Aside, however, from this objection, the accusatory declaration must have' been rejected as evidence of a state of mind, though the purpose thus to hmit.it had been brought to light upon the trial. The defendant had tried •t-o show by Mrs. Shepard’s declarations to her friends that she had exhibited a weariness of life and a readiness to end it, the testimony giving plausibility to the hypothesis of suicide. Wigmore, § 1726;
Commonwealth
v.
Trefethen,
These precepts of caution are a guide to judgment here. There are times when a state of mind, if relevant, may be proved by contemporaneous declarations of feeling or intent.
Mutual Life Ins. Co.
v.
Hillmon,
The testimony now questioned faced backward and not forward. This at least it diet in its most obvious implications. What is even more important, it spoke to a past act, and more than that, to an act by some one not the speaker. Other tendency, if it had any, was a filament too fine to be disentangled by a jury. •
The judgment should be reversed and the cause remanded to the District Court for further proceedings in accordance with this opinion.:
Reversed.
Notes
Maguire, The Hillmon Case; 38 Harvard L. Rev., 709, 721, 727; Seligman, An Exception to the Hearsay Rule; 26 Harvard L. Rev. 146; Chafee, Review of Wigmore’s Treatise, 37 Harvard L. Rev., 513, 519.