People v. Abbott

McKEE, J. The defendant having been convicted of murder in the first degree, and sentenced to imprisonment for life, appeals from the judgment, and an order denying a motion for a new trial.

1. In impaneling the trial jury the court allowed certain challenges, taken by the district attorney, to two of the panel of jurors, for implied bias, upon the ground that each of them entertained such conscientious scruples as would preclude him from finding the defendant guilty. The challenges were made upon the testimony of the jurors given during their examination as to their qualifications to sit as trial jurors. When taken, the defendant’s counsel “denied the facts”; and the court, upon the testimony of the jurors previously given—none other having been offered after the denial of the facts—allowed the challenges and excluded the jurors. It is contended that the allowance of the challenges was erroneous, because there was no trial of the issue raised by the denial, and because the testimony of the jurors was insufficient. Section 1078 of the Penal Code provides: “If the facts are denied, the challenge must be tried by - the court.” But there was substantially a trial. The testimony of the jurors was taken before the judge himself, and the question raised by the denial of the defendant was submitted to the court for decision upon that testimony; for, after the denial of the facts, the defendant did not re-examine the jurors, nor offer any additional testimony; and as the question was practically submitted, by counsel for the people and for the defendant, upon the testimony before the court, the court had the right to, as it did, decide it without requiring the jurors to repeat themselves. The decision rendered was sustained by the evidence; for one of the jurors answered, substantially, that in a clear case of willful and deliberate murder he would be, as a juror, in favor of imprisonment for life, but opposed to hanging. And the other, that he had to a “certain extent” conscientious scruples against finding [385]a man guilty of a crime for which he would be hung. A person summoned as a juror, who entertains such conscientious opinions, must neither be permitted nor compelled to serve as a juror: Pen. Code, see. 1074.

2. At the trial of the case the court admitted in evidence, as dying declarations, certain statements of the deceased. The statements were that the defendant, who was taken after his arrest to the bedside of the wounded man, was “the man who cut him with a knife, and that he had no cause for it whatever.” It is contended that it was error to admit these statements, because it was not proved they were made under a sense of impending death. Dying declarations are inadmissible unless the declarant believed that death was impending. If at the time of the declarations he has any expectation or hope of recovery, however slight it may have been, and though death ensued soon afterward, the declarations are inadmissible : 1 Greenleaf on Evidence, 184. Under that rule, we held, in Hodgdon’s Case, 55 Cal. 72, 36 Am. Rep. 30, certain dying declarations inadmissible, because, while the declarant, at the time of making the declarations, expressed herself as believing she would die, yet she also expressed the thought that she might recover, and therefore she had not abandoned the hope of recovery. In Taylor’s Case, 59 Cal. 640, there was nothing in the circumstances of the case, or the expressions of the declarant, to indicate that he thought death was inevitable.