People v. Sierp

McFarland, J. The defendant was convicted of murder in the second degree, and appeals from the judgment and from an order denying his motion for a new trial.

1. As to the first point made for a reversal, it is sufficient to say that the evidence fully enough shows that Manuel Moreno, the person killed, made his dying declaration under a sense of impending death, and that, [250]therefore, the court did not err in overruling defendant’s objection to said declaration.

2. The contention based on the cases of People v. Lee Fat, 54 Cal. 527, and People v. Ah Yute, 56 Cal. 119, that the testimony of Secundino Varela, given at the preliminary examination, was improperly admitted because it was conducted through an interpreter, cannot be maintained. The entire examination was in the English language except that, as to a single question, the court requested an interpreter to ask the witness if he understood the question, and the interpreter, having asked him, replied: “He says he does understand.” Moreover, the interpreter was present at the trial in the superior court and testified. The case at bar is, therefore, not at all within the rulings in the Lee Fat and Ah Yute cases; and the court did not, for the reason urged under this contention, err in admitting said testimony.

3. The third and only other point made by appellant is that the admission in evidence of the testimony given by said Varela at the preliminary examination was erroneous because prohibited by section 13 of article I of the state constitution, and because any statute providing for the admission of such testimony in a case of homicide is violative of said section of the constitution, and void. This point was decided against the contention of appellant in People v. Chin Hane, 108 Cal. 597, and People v. Oiler, 66 Cal. 101; but as the point has been strenuously urged in another case recently submitted, and we are asked to overrule the cases above cited, it is proper, perhaps, to give it a little further notice.

It is- said that in People v. Chin Hane, supra, the point was not much discussed, and the decision was based on People v. Oiler, supra; that the opinion in People v. Oiler, supra, contains statements which are not sound law; and that, moreover, the latter case did not involve a crime arising out of a homicide. But in People v. Chin Hane, supra, which was decided in Bank and was a case of murder, a petition for rehearing was filed in which this point was strongly pressed and most elaborately