People v. Pollock

PLUMMER, J.

The defendant was convicted of manslaughter upon an information filed by the district attorney of Humboldt County, charging second degree murder, in that the defendant did, on or about the 31st day of December, 1937, at and in the county of Humboldt, state of California, wilfully, unlawfully and feloniously kill and murder one Alexander Frazier, a human being. From the order denying the defendant’s motion for a new trial, and the judgment of the court based upon the verdict finding the defendant guilty of manslaughter, the defendant appeals.

[603]

Upon this appeal the appellant presents as grounds for reversal the fact that no evidence was introduced at the trial showing that the alleged offense was committed in the county of Humboldt; that the record fails to establish the venue of the alleged offense; that the court erred in the admission of testimony, and particularly in the admission of a statement made by the deceased, introduced as a dying declaration; and the alleged misconduct of the deputy district attorney.

The record shows that the offense was committed in a cabin belonging to a certain Mrs. Graham, near a place called Miranda. It appears that the defendant, the deceased, and others, mostly half-breed Indians, were engaged in a drunken orgy in the cabin referred to. Owing to the fact that all of the witnesses to the affray were more or less under the influence of intoxicating liquor, just what occurred is to an extent uncertain, but it does appear that a fight was started, and in that fight, whether the deceased was one of the originators thereof, or simply participated therein, in order to quell the disturbance, it was during the fight that the deceased received at the hands of the defendant the wounds which ultimately resulted in death. The wounds were inflicted by a knife held in the hands of the defendant.

We find nothing in the record as to the alleged misconduct of the deputy district attorney warranting our interference with the judgment of the trial court; nor do we find anything objectionable in the ruling of the court in allowing questions propounded to character witnesses relative to previous affrays in which the defendant may have been engaged. Nor is there anything in the statement of the deceased, introduced as a dying statement, which in and of itself would warrant a reversal. However, as for other reasons the cause must go back for a retrial, we may here state that all the authorities agree with the holding that before a dying statement is admissible, it must be shown that the declarant was laboring under the thought of imminent death. The record in this case simply shows that the decedent said that he was going to die. It is absolutely silent as to whether the deceased was or was not then laboring under the thought of imminent death. The foundation for the introduction of the dying statement upon a retrial should be laid broad enough to show, and to establish the fact that the statement was