Opinion
Appeal from a judgment of the Superior Court of Sonoma County, and from an order denying a new trial.
COUNSEL:
The written statement of the deceased was not admissible in evidence, as it did not meet the requirements of the law as to dying declarations. (Code Civ. Proc., sec. 1870, subd. 4; People v. Taylor , 59 Cal. 640; People v. Fong Ah Sing , 64 Cal. 253; People v. Hodgdon , 55 Cal. 72; 36 Am. Rep. 30; People v. Wasson , 65 Cal. 538; People v. Ah Dat , 49 Cal. 652; People v. Sanchez , 24 Cal. 24; People v. Glenn , 10 Cal. 33; People v. Hall , 94 Cal. 595.)
Ross Campbell, and John T. Campbell, for Appellant.
Attorney General W. H. H. Hart, Deputy Attorney General Charles H. Jackson, Deputy Attorney General W. H. Layson, and Assistant District Attorney J. R. Leppo, for Respondent.
The affirmation of the written statement just prior to the death of the deceased rendered the statement admissible as a dying declaration. (6 Am. & Eng. Ency. of Law, 117; Mockabee v. Commonwealth , 78 Ky. 380; Wharton's Criminal Evidence, 9th ed., p. 216, sec. 287; People v. Bemmerly , 87 Cal. 119.)
JUDGES: In Bank. DeHaven, J. Garoutte, J., Fitzgerald, J., McFarland, J., Harrison, J., and Paterson, J., concurred.
OPINION
DeHAVEN, Judge
This is an appeal by the defendant from a judgment convicting him of the crime of murder in the second degree, and sentencing him to imprisonment for life, and also from an order denying his motion for a new trial.
The deceased, M. H. Byrn, was shot by the defendant during the evening of July 5, 1892, and early in the morning of the next day made a statement of the circumstances attending the shooting, which was reduced to writing, and signed and verified by his affidavit. At the time this statement was made the deceased was not impressed with a sense of his impending dissolution; but about ten o'clock of the evening of the same day he was informed by the attending physician that his wound was mortal, and his attention was called to the statement previously made by him. He then said that he did not wish to make any change therein. There was then appended to the statement the following, which was read to the deceased, and signed by him.
" The above and foregoing statement I have made as a true and correct account of the facts relative to my being shot by Charles M. Crews, and I make said statement with full knowledge that my recovery is impossible, and under the sense of impending death."
Upon proof of the foregoing facts the written statement was admitted in evidence as the dying declaration of the deceased. The defendant objected thereto, and this ruling of the court is assigned as error. The defendant contends that the declaration was not made under a belief of immediate death, and that the subsequent ratification was not sufficient to entitle it to be admitted as a dying declaration, especially in view of the fact that the statement was not read to the deceased at the time of such ratification.
We think the paper was properly received as a dying declaration, although when originally given the statement which it contains was not made by the deceased under a belief that he was in the immediate presence of death. But the truthfulness of this particular statement was subsequently reaffirmed by the deceased when all hope had gone, and this constituted a repetition or restatement of the same facts, as much so as if such matters had been again reduced to writing, and signed by the deceased at the time of their repetition; and such repetition is to be regarded as a declaration then made by him at a time when he believed he was in the very presence of death, and was admissible in evidence as such. (Mockabee v. Commonwealth , 78 Ky. 380; Wharton on Criminal Evidence, 8th ed., sec. 287.)
The evidence leaves it entirely clear that when the deceased reaffirmed the correctness [36 P. 368] of the prior statement he had a clear recollection of its contents, and, under these circumstances, the fact that it was not then reread to him becomes immaterial.
The court did not err in any of the instructions given, or in refusing or modifying certain instructions requested by the defendant, nor in any of its rulings relating to the admissibility of evidence. The trial in the superior court seems to have been entirely fair to the defendant, and he has no legal reason to complain of the result.
This conclusion renders it unnecessary to consider the motion of the assistant counsel for the people to strike out the bill of exceptions found in the record, or the motion to dismiss the appeal from the order denying a new trial.
Judgment and order affirmed.