290 U.S. 96 (1933)
Charles A. Shepard, a major in the medical corps of the United States Army, was convicted in the United States District Court of the murder of his wife, Zenana Shepard, at Fort Riley, Kansas.1 The jury qualified its verdict by adding the words "without capital punishment," resulting in a sentence of life imprisonment.2 The Circuit Court of Appeals for the Tenth Circuit affirmed the judgment, with one judge dissenting, and the Supreme Court granted certiorari.3
The crime was charged to have been committed by poisoning the victim with bichloride of mercury.4 Shepard was in love with another woman and wished to make her his wife.5 Circumstantial evidence supported a finding that he turned to poison and murder to win his freedom, though guilt was contested.6
The evidence at issue was offered by the Government in rebuttal near the end of the trial.7 On May 22, 1929, Mrs. Shepard, then ill in bed, had a conversation with her nurse, Clara Brown, in the defendant's absence.8 She asked the nurse to bring a bottle of whisky from the defendant's room, stated that this was the liquor she had taken just before collapsing, asked whether enough was left to test for poison due to its strange smell and taste, and added that Dr. Shepard had poisoned her.9
The conversation was proved twice.10 After the first proof, the Government asked to strike it out due to doubts about competence, which was granted.11 It was renewed after the nurse testified that Mrs. Shepard had said she was not going to get well and was going to die.12 The defendant made a timely challenge to the ruling.13
Mrs. Shepard's illness began on May 20, 1929, when she was found in collapse, delirious, in pain, with dilated pupils and suffused retinas.14 By May 22, her mind had cleared, her speech was rational, and she seemed to be improving with no thought by physicians that she was dangerously ill.15 There had been no diagnosis of poison.16 About a week later she suffered a relapse with mouth infection, renewed eye congestion, and later bowel hemorrhages, leading to her death on June 15.17
Witnesses for the defendant testified that before her illness Mrs. Shepard had stated she had no wish to live, nothing to live for, and expected some day to make an end to her life.18 The Government offered the nurse's testimony in rebuttal.19
Whether Mrs. Shepard's statement to her nurse on May 22, 1929, was admissible as a dying declaration?20
No. The statement was offered and received upon the theory of a dying declaration.24 The record furnishes no proof that the declarant spoke without hope of recovery and in the shadow of impending death.25 Nothing in the condition of the patient on May 22 gives fair support to the conclusion that hope had then been lost.26 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.27
Indeed, a fortnight later, she said to one of her physicians, though her condition was then grave, "You will get me well, won't you?"28 The patient must have spoken with the consciousness that death was near at hand, which was not shown here.29
The statement was not admissible as a dying declaration because Mrs. Shepard did not speak with the consciousness that death was near at hand.30
Whether the statement was admissible as evidence of the declarant's state of mind to rebut testimony suggesting suicidal intent?31
Declarations of intention, casting light upon the future, have been sharply distinguished from declarations of memory, pointing backwards to the past.32 There would be an end, or nearly that, to the rule against hearsay if the distinction were ignored.33 A state of mind, if relevant, may be proved by contemporaneous declarations of feeling or intent, but not by declarations used as proof of an act committed by some one else.34
No. Witnesses for the defendant had testified to declarations by Mrs. Shepard suggesting a mind bent upon suicide.35 The Government offered the nurse's testimony in rebuttal. The testimony was neither offered nor received for the purpose of showing a state of mind inconsistent with suicidal intent.36 It was offered and received as proof of a dying declaration.37
The course of the trial makes this an inescapable conclusion.38 What the Government put in evidence was something very different.39 It did not use the declarations by Mrs. Shepard to prove her present thoughts and feelings, or even her thoughts and feelings in times past.40 It used the declarations as proof of an act committed by some one else, as evidence that she was dying of poison given by her husband.41
The testimony now questioned faced backward and not forward.42 This at least it did in its most obvious implications.43 What is even more important, it spoke to a past act, and more than that, to an act by some one not the speaker.44 Other tendency, if it had any, was a filament too fine to be disentangled by a jury.45
The statement was not admissible as evidence of the declarant's state of mind to rebut testimony suggesting suicidal intent because it was used to prove a past act by another and constituted impermissible hearsay.46