People v. Dobbins

HENSHAW, J.

Defendant was charged with the murder of one Eldridge B. Ball. The jury returned its verdict of guilty of murder in the first degree, and fixed the penalty at imprisonment for life. From the judgment and from the order denying him a new trial he appeals.

By the prosecution it was shown that defendant, deceased, and others were engaged in playing a game of draw-poker in the back room of a saloon. In the middle of a deal defendant, who suspected the deceased of cheating, suddenly said to him, “You are a son of a bitch.” Deceased responded, “You are a liar, Jeff. I am no son of a bitch,” and with that arose from his chair, his arms hanging loosely by his side. As he did so the defendant shot him twice, once in the shoulder and once in the abdomen, the latter wound being mortal, from the effects of which death shortly ensued. This evidence was sufficient to countervail against defendant’s plea of self-defense, and to justify the verdict which the jury returned.

A dying declaration of deceased was admitted in evidence, and it is contended that the preliminary proofs upon behalf of the people were not sufficient to justify its admission. The deceased made two statements, under the following circumstances : Mr. Barcar, an attorney, had been called in, that the first statement might be in proper, legal form, and in the presence of Mr. Barcar, the doctor, the witness Young and

[696]

others, deceased made a brief statement, which was reduced to writing, to the effect that he had been shot by defendant Dobbins without cause or provocation. Mr. Barear then departed from the room, communicated with the district attorney by telephone, and stated to him that he had taken down a very brief statement from the dying man. The district attorney then went to Ball’s bedside, and there was given the second statement of the deceased, which statement was the one introduced in evidence. The interval of time between the giving of the first and of the second-statement was about an hour or an hour and a half. Before the making of the first statement the deceased was suffering intense pain from the abdominal wound, and had been assured by the attendant physician that he was mortally injured and would soon die. The deceased stated that he was mortally wounded and felt that he was going to die, and appeared to realize that he had but a short time to live. The doctor told him that he could live but a short time, -and that they had come there to take his dying statement. He said that he “felt assured that he was going to die,” and that “he was satisfied of it.” It was under these circumstances that the first statement by the deceased was made. Thereafter, the witnesses still remaining in the room, and only Mr. Barear having withdrawn, the situation in other respects remaining unchanged, the district attorney came upon the scene and took the second declaration from the dying man. The district attorney was accompanied by Hyatt, a shorthand reporter. Hyatt testified that he made some notes of what took place at the time that he and the district attorney were there, but that he was not there for the purpose of taking the dying declaration; that he did not hear everything that was said because Mr. Ball was lying on the bed with his back to him and his face toward the district attorney, who was talking to him; he was not there as an official reporter, and the notes which he took were not taken officially, but as memoranda of what he heard, because he had nothing else to do. From these notes it appears that the district attorney questioned the dying man as follows: “Q. Dr. Stitt tells me that you are going to die. He has informed you so? A. Yes. Q. You understand that all hope is gone— you are going to die? A. Well, I presume that likely to be