People v. Southern
Before: Garoutte
Synopsis
Griminal Law—Homicide—Evidence—Dying Declarations Admissible fob Defendant.—The dying declarations of the deceased made in extremis, are admissible' as evidence for the defendant; and the fact that there is evidence of circumstances from which the jury might infer that the deceased was mistaken as to the identity of the party who was his assailant does not affect the admissibility of his dying declaration as to the person by whom he was shot.
•In.—Practice—Management of Prosecution.—It is better practice for both the prosecutor and the court to he liberal in regard to the matter of objections to evidence for the defendant, and under all ordinary conditions to resolve doubtful questions in favor of the defendant; and it is dangerous practice to attempt to hew to the very line of the law, as the slightest encroachment upon the other side may result in a mistrial.
In.—View of Scene of Homicide—Discretion.—It rests with the appellant to show error affirmatively in the action of the court in allowing a view to be taken by the jury of the scene of the homicide. The court has absolute discretion in granting or refusing an application for such a view; and, under ordinary circumstances, the safer course would be to refuse it, owing to the danger that something may occur in taking the view which will create a mistrial of the cause.
GAROUTTE, J. The defendant has been convicted of murder of the second degree, and now prosecutes this appeal. The deceased was an Indian, and his death was caused by a shot from a pistol. The shooting occurred upon a public street of the city of Santa Ana, at about the hour of 10 P. M. The defendant denied that he fired the shot, or was present at the scene of the shooting.
[646]During the progress of the trial, when the time arrived for the defendant to present his case, he proposed to prove a dying declaration of the deceased. This declaration was made by deceased in answer to a question put to him by a bystander a few moments after the shooting, and was to the effect that he (deceased) was shot by a Mexicano (Mexican). In view of the fact that the defendant is an American, the importance of this evidence to him is readily perceptible. There was evidence introduced tending to show that the defendant a few moments before the shooting addressed the deceased in the Mexican dialect, and also other evidence indicating that the locality where the shooting occurred was but dimly lighted. From these circumstances it could well be argued to the jury that the deceased was mistaken as to the identity of the party who was his assailant; but this fact sheds no light whatever upon the question as to the admissibility in evidence of this declaration of the deceased. In view of the objections that were sustained to nearly all questions addressed to the witnesses by counsel for defendant looking toward the establishment of a sufficient foundation upon which to rest the admission of evidence of this declaration of the deceased to the effect that he was shot by a Mexican, it would seem that the trial court took the broad ground that a dying declaration made by the deceased which is favorable to a defendant on trial, cannot be introduced before the jury for his benefit. Evidence tending to show that the statement of the deceased was one made in extremis, and, therefore, admissible as a dying declaration, was rejected; for that reason we are not called upon here to examine the sufficiency of the foundation laid to form the basis for the admission of the dying declaration.
Let us concede this declaration admissible unless for the single' reason that it was favorable to defendant. Is that reason good in law? There is a dearth of authority upon the question. In Rex v. Scaife, 1 Man. & R. 551, Justice Coleridge asked counsel for the prisoner if they could refer him to .a case where the declaration of a dying man in favor of a prisoner had been received in evidence; and counsel replied that they had searched for such a case, but had not found it. In People v. McLaughlin, 44 Cal. 436, this court volunteered to cast some doubt upon the admissibility of such declarations, but expressly stated that it did not give an opinion upon the point. The court in Moore v. State,
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