Opinion. as an authority the case of State v. Cornish, 5 Harr. 502, which was regarded as a stronger case for the prisoner. It was held in that case to be the province and duty of the court to determine the preliminary question whether the declarations were made under an apprehension of impending death, on the prima facie proof presented on that point by the direct and cross-examination of the witnesses produced by the state, without hearing any witnesses on the other side to rebut or controvert it. And it was also held that when the declarations are admitted in evidence they rest on the same level with all the other evidence, and the credit, weight and effect of them are alone to be considered and determined by the jury; and they may after their admission in evidence be weakened and impaired, contradicted and disproved by the testimony for the prisoner subsequently produced. [4] Under the third objection it is contended by the defendant, and not denied by the state, that no one who was present at the time the declaration in question was made, has given any testimony which shows, or tends to show, that the deceased had no hope of recovery at that time. There was testimony produced by the state from which it clearly appears that at other preceding times the deceased had no such hope because he believed he was "done for", was "going to die," could "not recover"; and the declarations made at such times were admitted without objection. There was a witness produced by the state who testified that he talked with the deceased a half or three-quarters of an hour before the statement in question was made, when the deceased said to the witness he was "done for", but the only testimony which indicated the state of the deceased's mind respecting his condition at the time the statement was made was that of the magistrate who testified that the deceased asked the surgeon if he thought he would recover, or get better, and that the surgeon evaded an answer, or, as the witness expressed it, "sidestepped the question." We think such question asked by the deceased showed that he must, or might, at the particular time, have had some doubt about dying, and indicated some hope of recovery-however slight it may have been. It is more than possible that his opinion Opinion. concerning his condition and possibility of recovery may have undergone some change since making other declarations a day or two before, and even during the half or three-quarters of an hour that intervened between the last two statements. A question very similar to the one we are now considering was passed upon by the court in State v. Buchanan, 1 Houst. Cr. Cas. 79. In that case "it was proved that although he lingered and did not expire until several days afterwards, the deceased had from the first day expressed his belief that he must die of the wounds received but it was also proved that three or four days after he had been wounded he inquired of a friend on a visit to him what he thought of his condition, and who told him he must die, and that up to that time his attending physician, of whom a similar inquiry had in the meanwhile several times been made by him, had encouraged the hope of recovery on his part, but on being asked the question after that time by him, made no reply to it." Upon that state of facts Chief Justice Gilpin said: "The court had been and should always be cautious in admitting what were termed dying declarations in evidence, as such declarations were often made in critical danger of death, and in a state of apprehension and despondency, before all hope or expectation of ultimate recovery had been entirely abandoned by the person making them; but as far as the testimony had gone on this subject, the court did not feel satisfied on that point, and must therefore exclude the evidence offered." The law is well settled, in this and many other states, that before a statement made by the deceased can be admitted as a dying declaration the court must be satisfied that it was made in apprehension of impending death, and when there was no hope or expectation of ultimate recovery. We do not think the statement before us was made under such conditions, according to the testimony in the case, and are therefore of the opinion that it should not be admitted in evidence. There may be cases where the statement made by the deceased would be admissible as a dying declaration even though there is no testimony of expressions made by the deceased at the time showing that he had abandoned all hope of recovery. It may Opinion. sufficiently appear to the court from all the other facts and circumstances of the case that the deceased had no hope of recovery at all when the statement was made, but we do not think the present case is of such character. Indeed, we are of the opinion that the question which the deceased asked the surgeon at the time the declaration before us was made is sufficient to distinguish this case from any of those cited by the state. In State v. Trusty, 1 Penn. 319, 40 Atl. 766, the court quoting from Section 158 of 1 Greenleaf on Evidence said: "It is essential to the admissibility of these declarations, 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; but it is not necessary that they should be stated at the time to be so made. It is enough if it satisfactorily appears in any mode that it was made with that sanction, whether it be directly proved by the express language of the declarant, or be inferred from his evident danger, or the opinion of the medical or other attendants, stated to him or from his conduct, or other circumstances of the case, all of which are resorted to in order to ascertain the state of the declarant's mind. * * It is, therefore, only necessary to show the circumstances which warrant us in believing that the deceased was under the apprehension of impending death." Courts have always been very careful and cautious, and properly so, in admitting statements made by the deceased, as dying declarations, because they are not made in court or under its direction; and for the further reason that no opportunity for cross examination is afforded the defendant. In State v. Frazier the court used the following language in discussing this point: "Such declarations are generally made without the sanction and obligation of an oath, and without an opportunity to those against whom they are used to cross examine the party making them. Dying declarations of a deceased party are only admissible when made under a sense of impending dissolution, and some writers on the subject go so far as to say that such declarations, to be admissible, must be made under a sense of impending and almost immediate dissolution; others have somewhat relaxed the Nolle Prosequi Entered. rule, and are not quite so rigid in their construction of it. We think the proper and most sensible construction is that there must exist in the mind of the party making such declarations, at the time they are made, a firm conviction of impending dissolution, if not immediate, at no distant day, and that there should not be a lingering hope of ever recovering." The objection to the admissibility of the testimony is sustained. The state resting, evidence was introduced for the prisoner to prove previous threats by the deceased against him; the size and strength of the deceased; the injuries inflicted upon the prisoner by the deceased, consisting of severe bruises about the head and face and the dislocation of his shoulder (the opinion of one physician who examined the prisoner, shortly after the affray, being that the wound on the head was made by some hard substance other than the fist); also evidence tending to prove the general good reputation of the prisoner for peace and good order in the community in which he lived. The Attorney General, thereupon, under all the facts disclosed, with the concurrence of the court, entered a nolle prosequi; and the accused was discharged. MARY S. CLENDANIEL vs. DAVID B. BENNETT. 1. TRESPASS-INJURY TO REAL PROPERTY-POSSESSION. Plaintiff cannot recover in trespass to real property, in the absence of proof that she was in actual possession at the time of the alleged trespass. 2. TRESPASS-EVIDENCE-Possession. In trespass to real property, evidence held insufficient to warrant a finding that plaintiff was in actual possession at the time of the trespass. (February 12, 1913.) Judges BOYCE and CONRAD Sitting. Andrew J. Lynch and John M. Richardson for plaintiff. Statement-Motion-Opinion. ACTION OF TRESPASS by Mary S. Clendaniel against David B. Bennett, before a justice of the peace, for direct injuries to real property. Nonsuit ordered. The plaintiff before the justice first filed a written statement under hand: "That David B. Bennett, of Cedar Creek Hundred in the County of Sussex aforesaid on the thirteenth day of March in the year of our Lord one thousand nine hundred and eleven, at the county aforesaid, did then and there wilfully and unlawfully trespass upon the lands of the said Mary S. Clendaniel, situate in Cedar Creek Hundred aforesaid and did then and there make direct and immediate injuries to her said lands by cutting or felling certain trees standing or growing in the soil and attached to the freehold of the land of her the said Mary S. Clendaniel without her consent first had and obtained." March 20, 1911, David B. Bennett, the defendant, appeared and did say "that the place wherein the above trespass is alleged is the freehold of Alice Bennett, the defendant's wife, under whom he claims and prays that this cause may be tried in the Superior Court, and thereupon J. Harry Reed, and J. Wilbur Hammond became bound to the plaintiff in the sum of one hundred dollars that the damages and costs which she may recover in said court shall be satisfied." Whereupon the justice certified the record of the action to this court for trial, under Section 4, Revised Code 768. The case was pleaded to issue as other causes in this court. When the plaintiff had rested, counsel for defendant moved for a nonsuit upon the following grounds: 1. That the plaintiff had not proved a paper title. 2. That she had not proved herself in possession of the lands, which is necessary to sustain an action for trespass. Clark v. Hill, 1 Harr. 335. The facts and questions presented appear in the opinion of the court. BOYCE, J., delivering the opinion of the court: [1] It is necessary to prove possession in order to maintain trespass. Whether the plaintiff has shown a legal title to the land |