People v. Lawrence

Field, C. J. delivered the opinion of the Court Cope, J. and Norton, J. concurring.

The dying declarations of the deceased were admitted in evidence against the defendant without objection. These declarations relate to the cause of the homicide, and the circumstances attending it. After the prosecution had closed the defendant offered to prove that on his examination before the committing magistrate the deceased had testified to facts directly contradicting his dying declarations; and, also, that he had made other and contradictory declarations. But the Court refused to allow the proof, and its ruling in this respect constitutes one of the errors assigned for a reversal of the judgment.

It does not appear from the record on what ground the Court based its ruling, and we are unable to perceive any which is at all tenable. The rule is general that the credit of a witness may be impeached by proof that he has made statements contrary to what he has testified. There is, it is true, a condition to the application of the rule with reference to verbal statements: that the attention of the witness must be previously called to the particular occasion and circumstances under which the supposed contradictory statements were made, in order to give him an opportunity of making any explanation of the matter which he may have. (1 Greenleaf's Ev. sec. 462.) But this preliminary condition, it is clear, cannot be complied with where dying declarations are offered in evidence, [372]except in very rare cases. Such declarations are generally made to the physician or friends of the deceased, in the absence of the party against whom they are offered, who, of course, has no opportunity of cross-examination, or of directing the attention of the deceased to any alleged contradictory statements made by him. Declarations of this character are received with the greatest caution. They are admissible on the ground of necessity; but, as very justly observed in People v. Glenn, (10 Cal. 36) though the condition of the person making the declarations in the last hours of life, under a sense of impending dissolution, may compensate for the want of an oath, it can never make up for the want of a cross-examination. There would be no justice, therefore, in any rule which would deprive the accused, under such circumstances, of the right to impeach the credit of the deceased by proof of his having made contradictory statements as to the homicide and its cause.

The conclusion we have thus reached disposes of the appeal, and necessitates a reversal of the judgment. There is, however, another error assigned, which it is proper to dispose of, inasmuch as the refusal to discharge the prisoner for the alleged illegality and insufficiency of the indictment will otherwise be again presented in the Court below, and, perhaps, upon a second appeal. The indictment was returned to the Court signed by the foreman of the grand jury, but without being indorsed “ a true bill,” and the absence of this indorsement was urged as a fatal defect to the indictment. The statute requires the indictment to be indorsed “ a true bill,” and the indorsement to be signed by the foreman, (Crim. Prac. Act, sec. 229) and provides that the indictment shall be set aside, upon motion of defendant, when not thus indorsed, provided the motion be made before a demurrer or plea is interposed (Secs. 277, 278) ; but if not thus made, that the defendant shall be precluded from afterward taking the objection. (Sec. 280.) In the present case the defendant pleaded to the indictment, and did not raise the objection until after the jury were impanneled and sworn. It was too late then, under the statute, to urge the objection. The indorsement is not essential to the legality and sufficiency of the indictment, as contended. It is only evidence of the finding of the indictment, and the object of the statute in requiring it is simply