People v. Gibson

The defendant was convicted of murder in the second degree and sentenced to imprisonment in the *Page 460 state prison for the term of twenty years. This appeal is from the judgment and from an order denying defendant's motion for a new trial.

On July 26, 1916, Mrs. Madeline C. Silveria, realizing that she was about to die as the result of an operation for abortion performed upon her by the defendant, made a dying declaration in which she stated that the defendant performed an abortion on her on July 4, 1916, and then added: "He told me he had not lost a case in thirty years, and now I am dying, now I am going to die." Within fifteen minutes after making the declaration she died. In support of the appeal defendant insists that the court erred in admitting in evidence that part of the dying woman's statement above quoted.

Dying declarations as competent evidence are restricted to the cause of death and the circumstances immediately attending it as part of the res gestae. (Code Civ. Proc., sec. 1870, subd. 4; People v. Fong Ah Sing, 64 Cal. 253, 256, [28 P. 233]; People v. Lee Ah Chuck, 66 Cal. 662, [6 P. 859].) From the record it is fair to infer that the statement attributed to the defendant was made just before the operation; but whether it was made then, or at the time of, or immediately following it, it certainly sheds some light on the occurrence, and was in fact a part of the res gestae of the operation; hence was admissible evidence. In the case of People v. Cipolla, 155 Cal. 224, [100 P. 252], the rule is given as follows (syllabus): "The dying declarations of the deceased, shown to have been made under circumstances of approaching death, were admissible and competent to cover all of the res gestae, including not only the actual facts of the assault and the circumstances surrounding it, but also the matters immediately antecedent thereto and having a direct causal connection with the assault, as well as acts immediately following the assault and so closely connected therewith as to form part of the occurrence. Under this, his statement is admissible to show that immediately after the murderous assault his body was carried and thrown into the river, and that he crawled out at about the place where he was thrown in, by means of brush at that place, of which he caught hold and climbed out, when he could go no further and lay down." In People v. Brewer, 19 Cal.App. 742, 745, [127 P. 808], testimony of a question put to the decedent and her answer thereto, to the effect that she was in good health at the time *Page 461 of the operation, admitted as part of her dying declaration, related in truth, says the court, to the res gestae of the operation which resulted in her death, and for that reason was admissible. (See, also, People v. Roach, 17 Cal. 297; People v.Linares, 142 Cal. 17, [75 P. 308].)