State v. Vallery, 47 La. Ann. 182, 49 Am. St. Rep. 363, 16 So. 745 (declaring that he "would put fourteen buckshot into" deceased). Md. State v. Redgely, 2 Har. & McH. 120, 1 Am. Dec. 372. Mass. Com. v. Madan, 102 Mass. 1. N. C. State v. Rose, 128 N. C. 575, 40 S. E. 83. Pa. Hopkins v. Com., 50 Pa. St. 9, 88 Am. Dec. 518 (declaring that he would "kill somebody before twenty-four hours"). Tex. Self v. State, 39 Tex. Cr. Rep. 455, 47 S. W. 26; Brown v. State, 43 Tex. Cr. Rep. 293, 65 S. W. 529.

162. Same Against deceased are admissible in evidence to show malice.-People v. Bezy, 67 Cal. 223, 224, 6 Am. Cr. Rep. 508, 7 Pac. 643.

163. Threats entitled to great weight, where time or manner in which homicide is committed corresponded to threats or other circumstances clearly connecting them. People v. Hyndman, 99 Cal. 1, 8, 33 Pac. 782. See State v. Hill, 4 Dec. & B. (N. C.) 491, 34 Am. Dec. 396; State v. Johnson, 2 Jones (N. C.) 247, 64 Am. Dec. 582; State v. Barnwell, 80 N. C. 470.

164. Same-Same-An isolated complete sentence by the accused, containing a threat against the deceased, is admissible in evidence on a trial for murder, notwithstanding the fact that the witness did not hear and can not repeat the whole of the conversation in which the threatening tence occurred.-State v. Oliver, 43 La. Ann. 1003.

sen

165. Same-Communication of threat unnecessary, and the time elapsing between the threat by the accused and the homicide charged does not destroy such threat as evidence for the prosecution, although it may weaken its effect and value.-Babcock v. People, 13 Colo. 516, 22 Pac. 817; Hall v. State, 31 Tex. Cr. Rep. 565, 21 S. W. 368. 1C6. Same-Former difficulty and threats made in connection therewith admissible. -Stitt v. State, 91 Ala. 10, 24 Am. St. Rep. 853, 8 So. 669.

See, also, par. 174, this note.

167. Made by defendant toward deceased, after prior difficulty and reconciliation between parties, are properly received, and jury should be instructed thereon.-People v. Hyndman, 99 Cal. 1, 7, 33 Pac. 782.

168. Same-Indefinite threats to kill or injure "some one," made by the accused, without definitely indicating any particular person, made shortly before the commission of the homicide charged, to which crime the threats may be construed as having reference, are admissible in evidence in connection with other explanatory circumstances, after the corpus delicti has been established. -Ala. Ford v. State, 71 Ala. 385; State v. Jones, 76 Ala. 8; Jordan v. State, 79 Ala. 9 (threat to kill any one who struck a named person); Coddell v. State, 129 Ala. 63, 30 So. 76. Colo. Moore v. People, 26 Colo. 213, 57 Pac. 857. Conn. State v. Hoyt, 47 Conn. 518, 38 Am. Rep. 89. Ga. Harris v. State,

109 Ga. 280, 34 S. E. 583. Idaho. State v. Larkins, 5 Idaho 200, 206, 47 Pac. 945. Iowa. State v. Pierce, 90 Iowa 506, 58 N. W. 891; State v. Wenhauhl, 95 Iowa 470, 64 N. W. 420. Ky. Com. v. Matthews, 89 Ky. 287, 12 S. W. 333; Quinn v. Com., 23 Ky. L. Rep. 1302, 63 S. W. 792. Miss. Harris v. State, 72 Miss. 99, 16 So. 360. Mo. State v. Harlan, 130 Mo. 381, 32 S. W. 997. Nev. State v. Hymer, 15 Nev. 49. N. C. State v. Barfield, 29 N. C. (7 Ired. L.) 303, 306. Wis. Benedict v. State, 14 Wis. 423.

170.

Same-Same-Threat to "wipe out” a named family, to which the deceased belonged, where the threat was made within the year preceding the homicide charged, is admissible in evidence against the accused, it being for the jury to determine whether the deceased was included in such threat.-People v. Gross, 123 Cal. 389, 55 Pac. 1054. See, also, People v. Craig, 111 Cal. 460, 463, 44 Pac. 186 (threat against whole family of wife).

171. This rule as to admissibility of evidence to prove a broad threat was applied to a threat against a class of persons, on the ground that it was a manifestation of a hostile state of mind against each person of that class.-State v. Hanlon, 38 Mont. 557, 579, 100 Pac. 1035, 1043. See State v. Davis, 6 Idaho 159, 53 Pac. 678 (threat against a class-all "sheepmen").

172. Same-Intent and malice may be shown by threats of accused against deceased as well as by "antecedent menaces" and "former grudges."-People v. Chaves, 122 Cal. 134, 54 Pac. 596, followed in People v. Percy, 16 Cal. App. 13, 16, 116 Pac. 322. See Ala. Ross v. State, 62 Ala. 224; Richardson V. State, 133 Ala. 78, 32 So. 249. Ark. Dunn v. State, 2 Ark. 229, 35 Am. Dec. 54; Phillips v. State, 62 Ark. 119, 34 S. W. 539. Fla. Milton v. State, 40 Fla. 252, 24 So. 60. II. McCoy v. People, 175 Ill. 224, 51 N. E. 777. Ind. State v. Johnson, 35 Ind. 742. Iowa. State v. Maelchen. 53 Iowa 310, 5 N. W. 186. Kan. State v. Stackhouse, 24 Kan. 445. La. State V. Birdwell, 26 La. Ann. 859; State v. Pain, 48 La. Ann. 311, 19 So. 138. Mass. Com. v. Holmes, 157 Mass. 233, 34 Am. St. Rep. 270, 32 N. E. 6. Mo. State v. Nugent, 71 Mo. 136. N. Y. La Beau v. People, 33 How. Pr. 66, 6 Park Cr. Rep. 371, affirmed 34 N. Y. 223; People v. Jones, 99 N. Y. 667, 2 N. E. 49. Ohio. Stewart v. State, 1 Ohio St. 66. Pa. Hopkins v. Com., 50 Pa. St. 9, 88 Am. Dec. 518. Tex. Howard v. State, 25 Tex. App. 686, 8 S. W. 929; Hall v. State, 31 Tex. Cr. Rep. 565, 21 S. W. 368.

173. Same-Made against deceased in presence of witness, who told prisoner of same, held not admissible.-People v. Lombard, 17 Cal. 316, 320.

174.

Same-Obscure and remote allusion

to an act in contemplation, made before the commission of a homicide, are admissible to show an existing disposition or design.-State v. Hoyt, 47 Conn. 518, 539, 36 Am. Rep. 89.

175. Same-Previous quarrel, assault and threats.-Evidence is admissible to show that the accused and the woman alleged to have been killed by him, while living together as husband and wife, had quarreled, resulting in her leaving him and fleeing to the house of a neighbor for protection, that he followed her to the house of such neighbor and attempted to make a murderous assault upon her, being frustrated in which, he made threats against her,all of which tends to show ill-will and malice on the part of the accused, and a motive for the murder committed a few days later.-People v. Chaves, 122 Cal. 134, 54 Pac. 596, doctrine followed in People v. Piercy, 16 Cal. App. 13, 16, 116 Pac. 322. See, also, pars. 165, 166, this note.

176. Same-Remoteness of threats from time of homicide does not render them inadmissible against the defendant, where they were directed against the deceased, but the remoteness may affect their weight and sufficiency, which is a question for the jury to determine.-Ala. Reed v. State, 68 Ala. 492; Markes V. State, 68 Ala. 580; Henderson v. State, 70 Ala. 23, 45 Am. Rep. 72; Cribbs v. State, 86 Ala. 613, So. 109; Rains v. State, 88 Ala. 91, 7 So. 315; Pulliam v. State, 88 Ala. 1, 6 So. 839; Griffin v. State, 90 Ala. 596, 8 So. 670; Pate v. State, 94 Ala. 14, 10 So. 665. Ark. Casat v. State, 40 Ark. 511. Colo. Babcock v. People, 13 Colo. 516, 22 Pac. 817. Conn. State v. Hoyt, 46 Conn. 330. D. C. United States v. Neverson, 1 Mack. 152. Fla. Hodge v. State, 26 Fla. 11, 7 So. 593. Ga. McDaniel v. State, 100 Ga. 67, 27 S. E. 158. Ind. Goodwin v. State, 96 Ind. 550. Ky. Abbott v. Com., 24 Ky. L. Rep. 148, 68 S. W. 124. Mass. Com. v. Holmes, 157 Mass. 233, 34 Am. St. Rep. 70, 32 N. E. 6. Mo. State v. Wright, 141 Mo. 334, 42 S. W. 934. Mont. Territory v. Roberts. 9 Mont. 13, 22 Pac. 132. N. C. State v. Foster, 130 N. C. 666, 41 S. E. 284. S. C. State v. Campbell, 35 S. C. 28, 14 S. E. 292. Tex. McCoy v. State, 27 Tex. App. 415, 11 S. W. 454; Hall v. State, 31 Tex. Cr. Rep. 565, 21 S. W. 368. Vt. State v. Bradley, 64 Vt. 466, 24 Atl. 1053; State v. Bradley, 67 Vt. 465, 32 Atl. 238. Wash. State v. Gates, 28 Wash. 689, 69 Pac. 385.

177. Same-Threats against witness. Statements made by prisoners, when under arrest and in jail for killing, that they would kill witness who identified them, held admissible, when made in presence of each other, as threats made by defendant against witness whom he expects to testify against him, with evident purpose of intimidation, are proper evidence.-People v. Chin Hane, 108 Cal. 597, 603, 41 Pac. 697.

178. Same-Threats to kill a third person-As to admissibility of. Threats

against third party are only admitted under circumstances which show some connection with the injury inflicted on deceased.-People v. Bezy, 67 Cal. 223, 224, 6 Am. Cr. Rep. 508, 7 Pac. 643.

179. Threat to kill third person uttered by a man who at the time is engaged in a quarrel with such third person, only, and the contention leading to a subsequent shooting and homicide of a person not having occurred at the time of such threat, is not admissible in evidence on trial for the subsequent killing.-Abernethy v. Com., 101 Pa. St. 328.

180. Same-Same-Where part of res gestæ. Threats against a third person forming part of the res gestæ or some transaction, are admissible in evidence; as where accused threatens to kill deceased and a third person, and at the time of killing deceased shoots at such third person. State v. Wong Gee, 35 Ore. 276, 57 Pac. 914.

181. Threats by deceased-Admissible in evidence in favor of accused, where they are a part of the res gestæ, where not a part of the res gestæ but were previously made, threats of the deceased are usually not admissible in the absence of evidence that at the time of the encounter and killing the deceased sought the conflict with the accused, or was in fact or apparently making some demonstration or engaged in an overt act toward the accomplishment of the threatened injury to the accused.-Garner v. State, 28 Fla. 113, 29 Am. St. Rep. 232, 9 So. 835.

182. Threats made by deceased are admissible for the purpose of showing that the circumstances were such as to excite the reasonable fears of the accused that his life was in danger, or that he was in danger of serious bodily injury, unless he should immediately defend himself.-People v. Scoggins, 37 Cal. 676.

183. Evidence of threats by the deceased should not be excluded where there is the slightest evidence tending to prove hostile demonstrations by the deceased, calculated reasonably to induce fear of loss of life or great bodily harm.-Garner V. State. 28 Fla. 113, 29 Am. St. Rep. 232, 9 So. 835.

184. Same-Bad feeling between accused and deceased, occurring several months before the homicide, and not connected with the cause occasioning the conflict, can not be shown in evidence in behalf of the accused.-Pound v. State, 43 Ga. 88.

185. Same-Communicated threats to accused, made by the deceased against him, are admissible in evidence in favor of the accused, where they indicate an angry and revengeful spirit toward the accused, and a determination to do violence to his person.-Dupree v. State, 33 Ala. 380, 73 Am. Dec. 422; Powell v. State, 52 Ala. 1.

186. Especially is this true in those cases in which there were overt acts on part of deceased indicative of a present in

tention to carry the threats into execution. -People v. Scoggins, 37 Cal. 683; Johnson v. State, 66 Miss. 189, 5 So. 95; State v. Harrod, 102 Mo. 590, 15 S. W. 373; State v. Hall, 9 Nev. 58; State v. Stewart, 9 Nev. 130; State v. Harrington, 12 Nev. 125.

187. Same-Communication of threat to accused is unnecessary to render same admissible in evidence in his behalf, where there is any doubt as to who began the encounter, as tending to show that it was the intention of the deceased at the time of the meeting to attack the accused, and that he brought on the conflict.-People v. Scoggins, 37 Cal. 676; Wilson v. State, 30 Fla. 234, 17 L. R. A. 654, 11 So. 556; Fields v. State, 46 Fla. 93, 35 So. 185; State v. Basksdale, 122 La. 791, 48 So. 264. See Roberts v. State, 68 Ala. 156; State v. Jackman, 29 Nev. 409, 41 Pac. 144; Wiggins v. Utah, 93 U. S. 465, 23 L. ed. 941, 4 Am. Cr. Rep. 494, revising 2 Cow. Cr. Rep. 443.

188. Same-Deceased's attitude at time of encounter in which he lost his life being in question, recent threats made by him against the accused may be shown, whether they were communicated to accused or not, being relative to show that, at the time of the meeting of the parties, the deceased was seeking to take the life of the accused. -Cal. People v. Arnold, 15 Cal. 476; People v. Scoggins, 37 Cal. 676. Ga. Keener v. State, 18 Ga. 194, 63 Am. Dec. 269. Ill. Campbell v. People, 16 Ill. 17, 61 Am. Dec. 49. Ind. Holler v. State, 37 Ind. 57, 10 Am. Rep. 74. N. Y. Stokes v. People, 53 N. Y. 164, 174, 13 Am. Rep. 492, 1 Cow. Cr. Rep. 557. Fed. Wiggins v. Utah, 93 U. S. 467, L. ed. 941, 4 Am. Cr. Rep. 494, reviewing 2 Cow. Cr. Rep. 443.

189. Same-Definite designation of person not made against whom threat made to kill, made before commission of the homicide to which they may be construed to have reference, admissible in connection with other explanato circumstances.

Ford v. State, 71 Ala. 396.

190. Same-Overt act of deceased essential to render recent threats to do personal injury to, or take life of the accused, admissible in evidence on a trial for murder, because if the deceased was doing no act and making no demonstration which would lead a reasonable person to believe deceased was intending to and then trying to carry his threats against the accused into execution, there was no excuse or justification for killing the deceased; and when such overt act is shown evidence of prior threats by deceased must be admitted.People v. Iams. 57 Cal. 115; People v. Westlake, 62 Cal. 303, 306. See Ala. Pritchett v. State, 22 Ala. 39, 58 Am. Dec. 250; Green v. State, 66 Ala. 6. Ark. King v. State, 55 Ark. 604, 19 S. W. 110. Fla. Smith v. State, 25 Fla. 517, 6 So. 482; Garner v. State, 28 Fla. 113, 29 Am. St. Rep. 232, 9 So. 835. III. Gilmore v. People, 124 Ill. 380, 15 N. E. 758; Palmer v. People, 138 Ill. 356, 32 Am. St. Rep. 146, sub nom. People v. Palmer,

28 N. E. 130. La. State v. Brooks, 39 La. Ann. 817, 2 So. 498; State v. Demareste, 41 La. Ann. 617, 6 So. 136; State v. Cosgrove, 42 La. Ann. 753, 7 So. 741; State v. Guillory, 44 La. Ann. 317, 10 So. 761. Mich. People v. Garbutt, 17 Mich. 9, 97 Am. Dec. 162. Miss. Holly v. State, 55 Miss. 424; Hinson v. State, 66 Miss. 632, 6 So. 463. Mo. State v. Hays, 23 Mo. 287; State v. Harris, 59 Mo. 550. Mont. Territory v. Campbell, 9 Mont. 16, 22 Pac. 121.

N. M. Thomson v. Territory, 4 N. M. 150 (deceased unarmed and retreating). Tex. Nash v. State, 2 Tex. App. 362; Peck v. State, 5 Tex. App. 611; Alexander v. State, 25 Tex. App. 260, 8 Am. St. Rep. 438, 7 S. W. 867; Levy v. State, 28 Tex. App. 203, 19 Am. St. Rep. 826, 12 S. W. 596 (accused provoking occasion which produced the killing). Utah. People v. Halliday, 5 Utah 467, 17 Pac. 118.

191. Same-Same-Previous conduct or insults, however violent and abusive, are not, in and of themselves, sufficient to justify or excuse any one for the commission of a crime; they are, however, evidential circumstances, which, in connection with the facts and circumstances surrounding the crime charged, are entitled to due consideration in determining whether the person charged was justified in his act.-People v. Iams, 57 Cal. 115; People v. Westlake, 62 Cal. 303, 306.

192. Same-Rioters' threat to return at another time, and to then break in, if they were not admitted, held to be admissible to be shown in evidence in favor of accused, for the purpose of establishing a reasonable ground of apprehension on the part of the accused.-People V. Rector, 19 Wend. (N. Y.) 567.

193. Same-Self-defense set up, threats of deceased are always admissible in favor of the defendant, where the evidence as to who sought and brought on the fatal encounter is conflicting.-Roberts v. State, 68 Ala. 156; Harkness v. State, 129 Ala. 71, 30 So. 73; State v. Barton, 63 Kan. 608, 66 Pac. 633; State v. Jackman, 29 Nev. 409, 91 Pac. 143.

See, also, authorities, par. 190, this note. 194. Same-Uncommunicated threats by deceased against the accused, where not part of the res gestæ, are generally not competent to be shown in evidence for the accused.-Burns v. State, 49 Ala. 370.

195. Two parties killed at same time and place, and apparently in same transaction, or approximately so, evidence as to circumstances of killing of one admissible

on

trial under indictment for killing of other. People v. Smith, 106 Cal. 73, 82, 39 Pac. 40. See People v. McGilver, 67 Cal. 55, 6 Am. Cr. Rep. 106, 7 Pac. 49; People v. Rogers, 71 Cal. 565, 12 Pac. 679; People v. Walters, 98 Cal. 138, 141, 32 Pac. 864; People v. McClure, 148 Cal. 418, 419, 83 Pac. 437.

196. Unfriendly relations — Evidence unfriendly relation existing between

of

de

fendant and deceased is properly admitted, where witness fully states facts upon which his testimony is based.-People v. Sehorn, 116 Cal. 503, 509, 48 Pac. 495. See Duffy v. Duffy, 104 Cal. 605, 38 Pac. 443.

197. Warrant of arrest In fictitious names.-Warrant of arrest purporting to have been issued against all defendants by fictitious names, and under which deceased with posse was acting, is admissible in evidence as part of circumstances, in connection with other circumstances, attending killing. People v. Brown, 59 Cal. 345, 350.

198. Weapons, etc.-Produced in court. -Sheriff's officer brought into court-room, and district attorney placed upon table. bowie-knife, pistol, and coat of mail, held not prejudicial to defense, where attention of court not called to such articles, and where no charge was made with respect to them, and no objection was made at time, jury being instructed to be governed alone by evidence admitted.-People v. Cox, 76 Cal. 281, 284, 18 Pac. 332.

As to weapon with which homicide committed as evidence, see Kerr on Homicide, p. 534.

199. Witnesses-Defendant can not be compelled to testify, but if he does become witness and testifies in his own behalf, he may be cross-examined as to all matters about which he was examined in chief.— People v. Buckley, 143 Cal. 375, 388, 77 Pac. 169; People v. Morales, 143 Cal. 550, 553, 77 Pac. 470; People v. Moran, 144 Cal. 48, 62, 77 Pac. 777. See People v. O'Brien, 66 Cal. 602, 603, 6 Pac. 695; People v. Hamblin, 68 Cal. 101, 103, 8 Pac. 687; People v. Rozelle, 78 Cal. 84, 92, 20 Pac. 36; People v. Mayes, 113 Cal. 618, 623, 45 Pac. 860.

As to physical examination of defendant and power of court to compel submission to, see pars. 6, 7, this note.

As to compelling accused to stand up for identification, see par. 200, this note.

As to defendants in criminal actions as witnesses, see, post, § 1323 and note.

to

200. Same-As to ordering accused stand up for identification.-Where prisoner was ordered to stand up for identification by witness, who states that he went into station-house and there found "this young man," such act is not violating constitutional provision prohibiting a person being compelled to be witness against himself.People v. Goldenson, 76 Cal. 328, 347, 19 Pac. 161; State v. Ruck, 194 Mo. 434, 5 Ann. Cas. 976, 92 S. W. 706.

As to physical examination, see pars. 6, 7, this note.

deceased and resulting combat, defendant, so far from being participant, was acting as peace-maker; and where the court, over repeated objections of defendant, permitted prosecution, on cross-examination, to bring out codefendants' account of quarrel and affray, in which they represented defendant on trial as murderer and themselves as peace-makers; held, that such course of cross-examination was erroneous, and prejudicial to defendant on trial. People v. Padilla, 143 Cal. 158, 162, 76 Pac. 889. 202. Same-Physician giving evidence on behalf of defendant on trial for murder may be cross-examined as to nature of complaint for which he treated him, and same is not privileged communication between patient and physician.-People v. Lane, 101 Cal. 513, 516, 36 Pac. 16.

203. Same-Prosecution can not be forced to introduce witnesses who may have been present at the homicide.-People v. Bush, 71 Cal. 602, 607, 12 Pac. 781.

204. Same-Truth, honesty, and integrity of. Evidence of good character of witness is not admissible, unless character of such witness is impeached or attacked for truth, honesty, and integrity.-People v. Bush, 65 Cal. 129, 132, 5 Am. Cr. Rep. 459, 3 Pac. 590. 205. Same-Wife's testimony, although wrongly admitted in evidence against defendant, may yet be received, where defendant becomes voluntary witness in his own behalf and substantiates such testimony.People v. Ketchum, 73 Cal. 635, 638, 15 Pac. 353. See People v. Montgomery, 53 Cal. 576; People v. Marseiler, 70 Cal. 98, 11 Pac. 503; People v. Daniels, 70 Cal. 521, 11 Pac. 655.

206. Same-Witness living with prisoner, but not as his wife, may testify against him on charge of murder.-People V. Alviso, 55 Cal. 230.

207. Same-Witness not required to be absolutely certain in his testimony as to identification of deceased.-People v. Young, 102 Cal. 411, 413, 36 Pac. 770.

208. Same-Witness' declarations to third party as to hearing pistol-shot, and as to his examination made at time, to effect that defendant had killed deceased, held irrelevant and incompetent.-People v. Wallace, 89 Cal. 158, 162, 26 Pac. 650.

IV. EVIDENCE-DYING DECLARATIONS.

As to declarations in general constituting parts of res gestæ, see Kerr's Cyc. Code Civ. Proc. (2d ed.), § 1850 and note.

209. As to definition of "dying declarations."-Dying declarations are declarations made in extremis, when party is at point of death and when every hope of this world is gone, when every motive of falsehood is silenced, and mind is induced by most powerful considerations to speak truth.-People v. Sanchez, 24 Cal. 17, 23.

210. As to admissibility of, when.-Admissible only as to those things to which deceased would have been competent to

V.

testify if sworn as witness in case.-People v. Taylor, 59 Cal. 640, 645. See People v. Sanchez, 24 Cal. 17, 26. Ala. McLean State, 16 Ala. 674; Johnson v. State, 17 Ala. 618. Tex. Warren v. State, 9 Tex. Ct. App. 619, 629, 35 Am. Rep. 745.

As to admissibility of dying declaration to what provoked the defendant's act, see note, Ann. Cas. 1912C, 429.

As to admissibility of dying statements as to transactions occurring immediately before homicide, see note, 21 Ann. Cas. 152.

As to the fact that the dying declaration was made by acts or signs instead of words as affecting its admissibility, see note, Ann. Cas. 1912B, 231.

As to necessity as a ground for admissibility of dying declarations, see par. 242, this note.

As to what is admissible, and in what cases, as a dying declaration, see note, 36 Am. St. Rep. 6.7.

V.

211. In a prosecution for murder in procuring an abortion, the question put to the dying woman and her answer were in truth part of the res gestæ of the operation which resulted in her death, and for that reason were admissible as a part of her dying statement. The situation and condition of the parties at the time of the performance of the acts which result in the death are without doubt part of the res gestæ, and for that reason were admissible.-People Brewer, 19 Cal. App. 742, 127 Pac. 808, 810. 212. Abandonment of hope of recovery— Essential. It is the abandonment of hope, the expectation of certain and imminent death, and the belief of the law that, at such an awe-inspiring time, a man about to be called to account before his Maker will tell the truth, that alone have justified the reception of dying declarations against a defendant who is thus deprived of his most valuable rights of confrontation of witand cross-examination.-People V. Smith, 164 Cal. 451, 129 Pac. 785, 789.

nesses

As to inference from wound or state of illness that declarant. was aware of impending death as affecting admissibility of declaration, see note, Ann. Cas. 1912C, 85. 213. In a prosecution for homicide, statements of deceased, although made after he had been told that he was going to die, are not admissible as dying declarations, where the deceased did not seem to appreciate his condition, but expressed hope of recovery. -People v. Smith, 164 Cal. 451, 129 Pac. 785, 788.

214. Where deceased made certain statements after the shooting but not under the belief of impending death, but afterward, at the solicitation and suggestion of the district attorney, stated that he realized his condition and reaffirmed his previous statements, such declarations must be viewed with extreme caution, and since they seem to follow blindly the suggestion of the district attorney, they should not be admitted

215. Admissible as what evidence, only. -Admissible only as evidence of circumstances under which mortal wound was received, and not as evidence of former and distinct transaction, or when it was mere expression of opinion.-People v. Farmer, 77 Cal. 1, 6, 18 Pac. 800.

216. Belief of impending death-May appear in any satisfactory mode, whether proved directly by express language of declarant or inferred from his evident danger, or opinions of physicians attending him.-People v. Gray, 61 Cal. 164, 175, 44 Am. Rep. 549; People v. Bemmerly, 87 Cal. 117, 118, 25 Pac. 266. See People v. Taylor, 59 Cal. 640, 648; People v. Abbott, 2 Cal. Unrep. 383, 4 Pac. 769, 772.

See Kerr on Homicide, pp. 441-443.

217. Belief that party will not recover -Not, of itself, sufficient, unless there be also prospect of almost immediate dissolution.-People v. Hodgdon, 55 Cal. 72, 76, 36 Am. Rep. 30.

218. Condition of mind of declarantHow determined.-Condition of rid of deceased at time he makes dec tion as

to his apprehension of death must be determined from all that 3 said and done, and circumstances surrounding him, and not from critical consideration of exact meaning of words used during such conversation.-People v. Farmer, 77 Cal. 1, 6, 18 Pac. 800.

219. Credibility of deceased-As contained in his dying declarations may be impeached by proof of his having made contradictory statements as to homicide and its cause.-People v. Lawrence, 21 Cal. 368, 372.

220. Declaration must relate to what.The declaration of deceased, to be admissible as a dying declaration, must relate to circumstance of death.-People v. Taylor, 59 Cal. 640, 648.

221. Declarations definite and certainNecessity for being.-Declaration by deceased as follows: "I think that this man [defendant] is the man that shot me," -is not competent evidence against defendant, as being mere expression of opinion.People v. Wasson, 65 Cal. 538, 539, 4 Pac. 555.

222. Declarations as to cause and manner of injury are admissible in evidence against party charged with homicide, although made after all action on part of wrongdoer had ceased.-See People v. Vernon, 35 Cal. 49; People v. Ah Lee, 60 Cal. 85, 88; Commonwealth v. McPike, 57 Mass. (3 Cush.) 181, 50 Am. Dec. 727.

See Kerr on Homicide, p. 439.

223. Declarations as to previous difficulty.-Error committed in allowing prosecution to put in evidence dying declarations as to previous difficulty will not prejudice prisoner, where he subsequently proves by