People v. Shortridge

VICTOR E. SHAW, J.,

pro tem.

Following his conviction of murder in the first degree, defendant was sentenced to execution. He appeals from the judgment so pronounced, and from an order denying his motion for a new trial.

Briefly stated, the facts surrounding the homicide, and concerning which there is no dispute, are as follows: At about

[508]

2:30 o’clock on the morning of May 7, 1918, James Mock, a police officer of Marysville, was informed that defendant had robbed a person in a certain rooming-house, and started out to apprehend him. Finding defendant in some brush near the railroad track, he placed him under arrest, and with his prisoner proceeded a distance of some thirty or forty feet when he stopped and whistled twice for the apparent purpose of attracting attention of other officers engaged in the search for defendant. Receiving no reply, he, in accordance with an expressed intention so to do, proceeded to place handcuffs upon defendant, who strenuously resisted his efforts, as a result of which the handcuffs were either knocked or dropped upon the ground. Thereupon the officer drew his gun, which, in the scuffle that ensued, defendant secured, and with it, after backing away some distance, fired the shot that caused the death of Mock about seven days thereafter. The defense was based upon insanity and self-defense.

As grounds for a reversal of the judgment, appellant insists that the court committed prejudicial error in first, receiving in evidence a statement of the deceased, purporting to be offered as his dying declaration, without proper foundation laid therefor; second, that the court erred in admitting parol evidence of the statements made by defendant at his preliminary hearing before the magistrate, and third, that he was prejudiced by the rulings of the court in refusing to give certain instructions requested by him.

As to the first alleged error, it was made to appear by the testimony of the surgeon that this wound, the character and seriousness of which he described, was a fatal one, and the stenographer who took the statement testified that the district attorney, prior to questioning deceased, said, “Jim, you know what statement you make is made because you believe you are going to die,” to which he assented by replying, “Yes, sir.” Upon this showing, defendant’s objection to the reception of the statement in evidence, as a dying declaration of the deceased, was overruled and the same admitted. While the evidence is meager, nevertheless it sufficiently appears from the statement of the district attorney, which deceased adopted as his own, that he later made the declaration and answers to the questions put by the district attorney, believing that his wound would prove fatal, and. under a sense of impending death. However, even if this were not so, we would be eon-