People v. McLaughlin

By the Court, Wallace, C. J.: The prisoner, convicted of the crime of murder in the second degree, brings this appeal from the judgment rendered against him. The indictment alleges the offense to have been committed in the felonious killing of John Hughes, at the City and County of San Francisco, and it appears by the bill of exceptions found in the records that at the trial the prisoner called one Fox as a witness, and proposed to prove by him that Hughes, three or four days after receiving the knife wound of which he afterwards died, while he was “in his right mind and not expecting to die,” had made certain statements concerning the circumstances attending the difficulty in which he had been wounded, which statements, it is claimed, tended to the exculpation of the prisoner. To the introduction of this evidence objection was made by the District Attorney, on the ground that such statements made by Hughes amounted to mere hearsay testimony, and the ruling of the Court below in sustaining [436]this objection presents the only point relied upon for a reversal of the judgment.

No error was committed in excluding the statements of Hughes. There is no pretense that they were part of the res gestee, nor that they were “dying declarations” of the deceased; We are not to be understood, however, as intimating that they would have been admissible in favor of the prisoner, even had they been of the latter character. It is true that it is asserted in some of the text books that they would, but the adjudicated cases hardly support the assertion. Thus, in United States v. Taylor, 4 Cranch C. C. R. 338, upon indictment for murder, the exceedingly meager report of the case states that the dying declarations of the deceased having been given in evidence against the prisoner, a new trial was granted him “ upon newly discovered evidence that the deceased had a dirk, and said if it had not been for that this affair would not have happened.” Whether what the deceased had said, and upon which, in part, the new trial was granted, was of the res gestae, or part of his declarations in extremis, does not distinctly appear. So, in Rex v. Scaife, 1 Mood & Rob. 551, which was determined three years later, the counsel for the prisoner, being called upon by the Court, admitted that they had been unable to find a case in which the declarations in extremis of the deceased had been allowed in favor of the prisoner; but the indictment being for manslaughter, the Court, after some hesitation, admitted the evidence, observing “ that it might have an influence on the amount of punishment.” In other cases their admissibility will be found to have been assumed for the purpose of illustration or argument, rather than decided. Ho such question arises here, however, and we express no opinion upon the point.