People v. Wasson

Morrison, C. J. The defendant was charged in the information with the crime of murder, and the verdict of the jury- was in the following form:—

“We, the jury, find the defendant guilty as charged in the information, and fix the penalty at imprisonment for life.”

The information charged the defendant with murder, which includes three degrees of felonious homicide, to wit, murder in the first degree, murder in the second degree, and manslaughter; and the verdict of the jury does not designate which of these three degrees they found the defendant guilty of. By section 1157 of the Penal Code, it is provided that “whenever a crime is distinguishable into degrees, the jury, if they convict the defendant, must find the degree of the crime of which he is guilty.” It is unnecessary to decide whether the verdict is or is not sufficient; we are not required to pass upon the point, as there are other errors involved which require a reversal of the case.

2. The next error complained of was the admission by the court, against defendant’s objection, of the dying declaration of [539]the deceased. It is very clear that the declaration of Shannon was not competent evidence against the defendant. It was simply the expression of an opinion that the defendant shot him. The language is: "I think that this man, Henry Wasson (the defendant), is the man that shot me.” If the party making the dying declaration admitted in evidence against the defendant in this case, had been on the stand and examined as a witness, he would not have been allowed to testify to his opinion. He did not see the defendant fire the shot, and did not pretend to know who it was that shot him. It was at most but an expression of an opinion on the subject, and his opinion was not competent evidence in the case. In the case of People v. Taylor, 59 Cal. 645, this court says : " The law is well settled that the declarations of the deceased are admissible only to those things to which he would have been competent to testify if sworn as a witness in the cause. They must relate to facts only, and not to mere opinion.”

3. The statements of Shannon, made some days after the shooting, Were not admissible in evidence; They did not come" within the rule admitting statements which are a part of the res gestee, for they were simply a narrative of a past transaction, and were wholly incompetent. (1 Greenl. Ev. §§ 108, 113, 469; People v. Doyell, 48 Cal. 85.)