The opinion
Mr. Justice Hilliard,
specially concurring.
I concur in the judgment of reversal, but I am not in accord with the adverse disposition of certain points urged in behalf of plaintiff in error. I recount them briefly.
1. So sacred are the material interests of a minor regarded in Colorado that he may not waive the slightest property right, nor can the most competent and thoughtful guardian make waiver for him. With whatever righteousness of claim, he who would possess that which a minor has, the minor acquiescing ever so formally, must make convincing proof. By what rule of reason, therefore, can it be said that a minor may plead guilty on a charge involving his liberty, and particularly, as here, of his right to continue in being’? I submit that logic and the humanities alike should prompt us to give pause. My study convinces me that a distinction exists between the right to receive a minor’s plea of guilty, necesarily foreclosing the principal issue, and his confession, which, subject to pertinent attack and explanation, may be admitted and considered as evidence. The record here presented opportunity for the suggested discriminating procedure. Its observance, as I conceive, would have served the ends of justice; and beyond that ministers of the law may not be concerned.
2. I think it was error to admit the so-called dying declaration of the deceased. Neither directly nor indirectly did the deceased indicate that he believed he would not survive. The record does not show that he referred to Ms condition. What is designated as his dying declaration is the story told by Chief of Police Harper, related in the interview he had with the deceased three *213 days prior to Ms death. After stating* that the deceased was conscious and that he had a conversation with him relative to who had shot him and in what manner, the following* occurred: “Did you at that time have a conversation with the doctor to ascertain whether he was in a dying condition or not? I did. After your conversation with the doctor, did you advise Vincent Regan prior to your conversation with Mm with reference to the gunshot wound that he probably was dying and that any statements he made should he the truth? I did. After you advised him of the fact what did Vincent Regan tell you with reference to the gunshot wound?” I pause here to say the doctor, also called as a witness, did not testify that he said to Chief Harper that Regan was about to die or would not recover, nor did Harper himself say the doctor said Regan could not get well. The doctor, who testified that he was present only at times during the interview conducted by Chief Harper, emphasized, as did Harper, that Regan was conscious and his mental faculties were worMng. It is not without its hearing, I think, that after detailing the manner thereof the doctor said the operation he performed was “proper to relieve and try to save the life of Vincent Regan from the gunshot wounds.” At no time did the doctor testify he thought Regan would not survive, and the quoted statement is consonant with belief that he might recover. The record does not show that in the presence of Regan Harper asked the doctor whether Regan would recover, and, as already narrated, Harper does not say what the doctor said. He simply says that after having a talk with the doctor on the subject, he told Regan he probably would not recover. In last analysis, the only person who indulged in his presence the speculation that Regan might not survive his wounds was Chief Harper.
Continuing Ms interview with Regan, Harper gave pages of details, hut never did he ask Regan as to his belief of his condition, nor in the course thereof did Regan volunteer his belief on the subject. Mr. Justice *214 Butler says, “it is not necessary that the declarant should have stated at the time that it was made under a sense of impending death.” The authorities cited in support show that in some “mode” the declarant must be shown to have appreciated the hopelessness of his condition. In the state of the record only the interview the declarant had with Chief Harper can be examined to determine what was Regan’s belief, and there nothing is said which shows the least apprehension on his part. One of the texts cited by Mr. Justice Butler plainly says, and the others contain statements of like import, that where the declarant does not himself say he is under sense of impending death, it may be inferred from the “opinions of the medical or other attendants, stated to him.” I re-emphasize that the record does not show that the doctor told Regan, or said in his presence, anything to the effect that his death was impending. On the contrary he operated in a “proper way to save his life.” Only Harper suggested that death was impending, and that was softened by the use of the word “probably.” Had the district attorney been present it is likely developing questions would have been submitted to the declarant, but since he was not there, we may not speculate as to what would have occurred. It suffices to remark that the record is silent on the essentials of a dying declaration. I cannot allow to go unchallenged the apparent claim that the cases of Zipperian v. People, 33 Colo. 134 , 79 Pac. 1018 , and Brennan v. People, 37 Colo. 256 , 86 Pac. 79 , support the opinion of the court. In the Zipperian case we said: “One of the exceptions to the rule which excludes hearsay evidence pertains to dying declarations. They are admissible in evidence ‘where the death of the deceased is the subject of the charge, and the circumstances of the death are the subject of the dying declaration.’ If made when the deceased is in extremis, with a belief entertained by him that his death is imminent and there is no further hope for him in this life, they may be admitted in evidence though the de *215 fendant was not present at the time they were made and had no opportunity for cross-examination.” There objection was offered because, “when the declarations were made Luxsinger did not believe that he was about to die, nor was it made to appear that he had given up all hope of recovery.” Mr. Justice Campbell, speaking for the court, said: “At different times during the day of his death, while not in express terms, saying that he believed death imminent, and that he had no hope of recovery, Luxsinger made other statements from which it is clearly apparent that such was his firm belief.” That the contrast between the Zipperian case and our present inquiry may be further emphasized, I call attention to the record proper there, where the witness, purporting to give the statement of the deceased, said: “He said to me,‘Well Reese they have got me this time.’ I said in rather a cheerful way, ‘Don’t worry about that; you may get over this yet.’ He said, ‘No I can never get over this, I have got to die. ’ ’ ’ Here the deceased not only said nothing expressly, but made no “other statements” relative thereto. The record does not show that any effort was made to ascertain the belief of the deceased as to his condition, nor did he speak on the subject. “The rule is universal that before dying declarations can be admitted in evidence it is essential, and is a preliminary fact to be proved by the party offering them in evidence, that they were made under a sense of impending death.” 1 R. C. L., p. 544, §90. The test, as appears from all the books, is, what the deceased believed, not what third persons, medical or lay, may have thought. The belief of the officer that the wounded man would not recover, and however reasonable, cannot be considered in determining whether the claimed declaration was made under the required sanctity. In the Brennan case, as in the Zipperian case, the determination was that the deceased had said that which made the declaration admissible. The court said: “We think, considering the statement of Mrs. Lowney, that she believed she was *216 in a dying condition and about to die, and from the mortal nature of ber injuries she was aware of the near approach of death, * * * the court properly admitted it in evidence.” In the record, following an inquiry of a doctor to Mrs. Lowney, “if she knew the condition she was in there,” the following occurred: “The court: What was the answer to that? A. Her answer to Mr. Long, she said she did; she knew she was in a dying condition, suffering very much from pain. Q. What did she say about dying? A. She said she felt she was in a dying condition.” I cannot believe the Zipperian and Brennan cases support the court’s conclusion. No other Colorado case is referred to, and I have been unable to find a case in this jurisdiction which supports the holding here. In justifying the admission of the declaration, our learned brother observes that, “even if it was error * * * the error would be harmless. ’ ’ Strange enough, the predicate is that defendant confessed and testified to ‘ ‘ everything that Regan stated in his declaration. ’ ’ Bearing in mind that dying declarations are admitted upon the ground of necessity, no other evidence being available, the very statement in the opinion operates to defeat the conclusion reached. When we recall the further fact that in addition to his testimony and confession, the defendant entered a formal plea of guilty, emphasis is given to the absence of necessity. “Such admission was, and is, an exception to, and almost an outrage upon, the doctrine that hearsay testimony will not be received, and, this being so, its admission is most justly grounded upon necessity. The witnesses to the crime of homicide are most generally limited to the killer and the killed, and the former might go free of justice, where the act was not seen by a third person, if the statement of the latter, as to the circumstances of the transaction, could not be given.” Note, 56 L. R. A. 354. See, also, Sullivan v. State, 102 Ala. 135 ; State v. Shelton, 47 N. C. 360 . “The true foundation of the rule, that they were admissible in cases of felonious homicide, were pol *217 icy and necessity, since that crime is usually committed in secret, and it can not he allowed to such an offender to commit the crime, and, by the same act, still forever the tongue of the only person in the world which could speak his crime.” Marshall v. Railway Company, 48 Ill. 475 . Fairly, I think, we could properly put into effect the principle suggested in Hillen v. People, 59 Colo. 280, 283 , 149 Pac. 250 , where we said: “Good practice, it would seem, in view of the danger that this kind of evidence may be misapplied to the injury of the accused, might require the state to offer the confession first, and if received, to put in no further evidence * * * unless clearly necessary.” Finally, I object to “piling Ossa on Pelion.” The defendant pleaded guilty in open court, a confession made out of court was detailed by witnesses, and he corroborated it all by his own testimony. That, I submit, was enough. The admission of the declaration, as I conceive the principles of Anglo-Saxon justice, cannot be justified on any hypothesis of the record. It tended unfairly to influence the jury in determining the penalty, the only question submitted. Whatever the crime, and whoever the accused, moderation should attend judicial inquiry.
3. Since plaintiff in error pleaded guilty, I think the trial court erred in not submitting the question of degree to the jury. A provision of section 6665, C. L. 1921, reads as follows: “If any person indicted for murder shall plead guilty to the indictment, the court shall thereupon impanel a jury as in other cases, to which shall be submitted, as the sole issue in the case, the question whether the killing was murder of the first or second degree. The jury in every such case shall find the degree thereof, and, if murder in the first degree, shall fix the penalty at death or imprisonment for life, and the court shall thereupon give sentence accordingly.” Instead of observing the statute, the court instructed that “the only issue for the jury to determine is whether the punishment to be inflicted shall be death or imprisonment for life.” In a *218 second instruction the court said: “All murder which shall be perpetrated by any kind of wilful, deliberate and premeditated killing’, or which is committed in the perpetration or in the attempt to perpetrate any robbery, shall be deemed * * * murder of the first degree.” The effect of the first instruction was to make nugatory an unambiguous enactment of the legislature, within the provisions of which plaintiff in error, by his plea, had fairly placed himself. I submit that regard for legislative control in the matter, exercised and expressed, and recognition of judicial limitations, should prompt us to resolve this point for plaintiff in error. The second instruction, the record considered, was equivalent to a directed verdict of guilty. It cannot be justified.
Before the enactment of this statute in 1881, one charged with murder, however revolting* and cruel and unjustified the circumstances, could escape the death penalty by entering* a plea of guilty. Garvey v. People, 6 Colo. 559 . “It is evident that the legislature recognized this construction of the law as being settled in accordance with the practice referred to, from the changes made therein by that body in 1881. These changes relate only to the effect of the plea of guilty.” Garvey v. People, supra. The legislative act is made abortive here by construing an earlier sentence in the same section to be of such import that on a plea of guilty the court, not the jury, may determine the degree of murder involved. The information does not charge that the homicide was committed in the perpetration of a felony. I grant that is not necessary. Andrews v. People, 33 Colo. 193 , 79 Pac. 1031 . But I maintain that to be measurably consistent in the construction of the statute which plainly says the jury shall determine the degree on a plea of guilty, the one informed against should be apprised by definite allegations in the information that such a plea might operate to deny jury consideration of the degree. If by any stretch of construction the court, in the circumstances of this record, can deprive a defend *219 ant of the right to have a jury fix the degree, to which I do not assent, snch construction should only be allowed where the information contains allegations, which, if proved, inevitably result in first degree.
While not controlling, it is informative, as indicating the practice, to note the procedure in the Fleagle case. There the information, as here, charged plain murder. Fleagle pleaded guilty. The evidence showed, also as here, that the homicide was committed in the perpetration of a robbery. Contrast the first instruction of the trial court here with the instruction there. The court, after stating the charge, said: “To this information the defendant herein has entered a plea of guilty; and the sole issue for you to determine is whether the offense in this case is murder in the first degree, or the second degree.” Fleagle v. People, 87 Colo. 532 , 289 Pac. 1078 . In that case the record shows that the special prosecutor said to the jury, indicating conformity to the practice: “You have to find first whether this is first or second degree murder.” In that case, Mr. Justice Adams, speaking for the court, said: “Jurors are constitutional officers, * * * The court cannot lawfully usurp this power, nor set aside the legislative will.” In Abshier v. People, 87 Colo. 507 , 289 Pac. 1081 (the Fleagle matter), Abshier pleaded guilty, and the court warned him as follows: “It becomes the duty of the court to inform you that under your plea in this case, it will be the duty of the court to impanel a jury in the case, and the jury are to determine whether this is first or second degree murder ; and, if first degree murder, they will fix the penalty, either at imprisonment for life in the penitentiary, or at death. ’’
The case of Jones v. People, 93 Colo. 282 , 26 P. (2d) 103 , is cited as authority for the holding* here. I am frank to say that although I participated in that determination, I gravely doubt the soundness of the reasoning there and my then convictions. In any event the record there is not comparable to the one now under review, for *220 Jones pleaded not guilty, and was convicted on trial. By Ms plea lie was enabled to combat every issue, particularly tbe one of guilt. Reppin, handicapped by a plea of guilty, stood as one enjoined to silence. The statute was enacted for such a situation, and I protest its voiding.
Mr. Justice Holland concurs in this opinion.