open, and Hirsch was to go on selling goods; that he was to use the proceeds of sales for expenses, and pay his debts in Santa Fe, and remit to Praeger as he could; and it might have been well added, that when he got ready to break, Praeger would own the store in Santa Fe, and he would probably own the one in New York. That this fraudulent transaction should be carried up, under the forms of law, is simply a scandal to an honorable profession. The law gives no sanction to such arrangements, and will hold them void, as against creditors, as tending to encourage and sustain frauds, and to hinder creditors in the collection of their just demands: Davis v. Ransom, 18 Ill.; Ford v. Williams, 3 Kernan; Edgett v. Hart, 13 Barbones, S. C.; Robinson v. Elliott, 22 Mass.; McLean v. Lafayette Bank, 3 McLean; Caddington v. Etheredge, 12 Grattan; Freeman v. Ranson, 5 Ohio; State Brooks v. Miner, 20 Mo.; Reed v. Pelletiur, 28 Mo.; Armstrong v. Tuttle, 34 Mo.

Judgment reversed.

BELL, J. I concur in the result.

SUPREME COURT OF CALIFORNIA.

No. 10,998.

PEOPLE v. WONG CHOW.

Department Two. Filed October 3, 1884.

INSTRUCTIONS EVIDENCE.--Where the evidence warrants it, the court must give every instruction asked, which suggests a theory of the case, not suggested by the instructions given.

APPEAL from a judgment of the superior court for the county of Los Angeles. The opinion states the facs.

Thomas D. Riordan, for the appellant.

Attorney General, for the respondent.

THE COURT. The eleventh instruction, which the defendant requested to be given, and the court refused to give to the jury, suggested a theory of the case, which was not suggested by any of the instructions given, and we think the court erred in refusing to give it. The evidence, in our opinion, entitled the defendant to have that instruction given.

Judgment and order reversed, and cause remanded for a new trial.

No. 11,965.

PEOPLE v. ABBOTT.

Department One. Filed October 6, 1884.

CHALLENGE-IMPLIED BIAS-CONSCIENTIOUS SCRUPLES-TRIAL OF CHALLENGE.-Where a jurer is challenged by the prosecution for implied bias, upon the ground that his testimony given during the examination as to his qualifications to act as a trial juror, shows that he has conscientious scruples against inflicting the death penalty, and the facts are denied by the defendant, the court may decide the challenge without a re-examination of the juror, if the defendant offers no testimony.

DEATH PENALTY-CONSCIENTIOUS SCRUPLES-JUROR.-Neither a person who testifies that in a clear case of willful and deliberate murder, he would be, as a juror, in favor of imprisonment for life and opposed to hanging; nor one who has, to a "certain extent," conscientious scruples against finding a man guilty of a crime for which he would be hung, should be permitted or compelled to serve as a juror in a prosecution for murder.

DYING DECLARATION-BELIEF IN IMPENDING DEATH-RES GESTAE.-In a prosecution for murder, the statements of the deceased, made in the presence of the defendant shortly after the infliction of the mortal wound, and after he had expressed a belief that he was about to die, and had given directions for the settlement of his affairs, to the effect that the defendant was "the man who cut him with a knife, and that he had no cause for it whatever," are admissible in evidence as dying declarations, and also as part of the res gestae. VOLUNTARY CONFESSION TO OFFICER.-In such case the voluntary confession of the defendant made to the arresting officer is admissible in evidence.

CONDUCT, ACTS AND EXPRESSIONS OF PRISONER EVIDENCE.-The conduct, acts and expressions of a person accused of crime, at the time of his arrest, are always admissible in evidence against him.

FORMER CONVICTION OF A FELONY MAY BE SHOWN BY THE EXAMINATION of the witness or by the record of the judgment.

UNLAWFUL KILLING MALICE-BURDEN OF PROOF.-When an unlawful killing is proved, malice will be presumed, and the burden of proof is on the defendant to show the absence or want of malice.

THE CREDIBILITY TO BE ATTACHED TO DYING DECLARATIONS is a matter for the jury. APPEAL from a judgment of the superior court for the city and county of San Francisco, entered upon a verdict convicting the defendant of murder, and from an order denying him a new trial. The opinion states the facts.

John D. Whaley, for the appellant.

Attorney-General, for the respondent.

MCKEE, J. The defendant, having been convicted of murder in the first degree, and sentenced to imprisoment 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 1,078 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 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: Section 1,074, penal code.

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 afterwards, the declarations are inadmissible: I Greenl. Ev., p. 184. Under that rule we held in Hodgdon's case, 55 Cal., 72, 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 Id., 640, there was nothing in the circumstances of the case, or the expressions of the declarant to indicate that he thought death was inevitable.

In the case in hand the evidence showed that the deceased died on the twenty-third of May, 1883, of traumatic peritonities, caused by a knife wound inflicted by the defendant on the twentieth of May, 1883. After receiving the wound the deceased was taken to the receiving hospital. He suffered great pain. His medical attendant testified that such a wound was invariably fatal. And, although encouraged by those around him, the wounded man frequently expressed himself as follows: "I have got my death wound. I think I am going to die. I believe I am going to die from the wound," and he requested his wife to be sent for so that he might at once settle his affairs. His wife came, and was with him every

day till he died; and she testified that "he said he was afraid he would never recover." The circumstances of the dangerous nature and character of the wound, the physicial condition of the wounded man as shown by his sufferings, and of his mental condition, as indicated by his expressions, justified the inference drawn by the court that the declarant was conscious of impending death at the time of the declarations. The declarations were properly admitted in evidence: People v. Sanchez, 24 Cal., 17.

Besides, the declarations were made in the presence of the defendant, who did not deny them, and the defendant had, before he was brought into the presence of the wounded man, confessed the truth of the fact contained in the declarations. The confession of the defendant and the declaration of the wounded man, made in the presence of the defendant, were made within two hours after the stabbing, and both were admissible as part of the res gesta. The confession was this: "I don't deny I cut the son of a bitch to kill him, and if he ain't dead, I hope he will die." It was objected that this confession was extorted from the defendant by force and threats, but the evidence shows it was voluntarily made at the time of his arrest, and before the officer had time to speak to him upon the subject, and when he did make it, the officer cautioned him about volunteering any statement of that kind, as it would have to be repeated at his trial to which he answered "he did not care." There was therefore no error in admitting the confession and declarations. 3. Nor was there any error in admitting evidence tending to prove that the defendant, immediately after making the confession, became turbulent in his conduct, resisted the officer, and refused to deliver up the knife with which he had done the stabbing for which he was arrested. The conduct, acts and expressions of a person, accused of crime, at the time of his arrest, are always admissible in evidence against him.

4. The questions asked by the district attorney on cross-examination of the defendant, who testified as a witness in his own behalf, were proper. Former conviction of a felony may be shown by the examination of the witness, or the record of the judgment: Sec. 2,051, C. C. P.

The

5. In the charge of the court we find no prejudicial error. instructions are not contradictory. The law of murder and malice was correctly expounded in the language of sections 187, 188, penal code; and the court added: "In its legal sense malice does not mean mere hatred and ill-will, but denotes an intent to do an unlawful act, without legal justification or excuse. * * * When an unlawful killing is proved, malice will be presumed, and the burden of proof is on the defendant to show the absence or want of malice." Exception was taken to the last clause of the instruction. But the code (subdivisions 2, 3, of section 1,963, C. C. P.) declares: That a person intends the ordinary consequence of his voluntary act, and that an unlawful act was done with an unlawful intent. And the effect of these statutory rules of evidence is that when the act is

proved to have been done by the accused, if it be an act in itself unlawful, the law in the first instance presumes it to have been intended, and the proof of justification or excuse lies on the defendant to overcome this legal and natural presumption: People v. Harris, 29 Cal., 682.

6. The instructions to the jury upon the subject of the dying declarations which had been admitted in evidence, were favorable to the defendant, and were properly given. After the admission of such evidence the question of its credibility remains for the consideration of the jury. It is their province to weigh all the circumstances under which the declarations were made, including those already proved to the judge, and to give to the declarations such credit as upon the whole they may think them entitled to: 1 Greenleaf's Evidence, pp. 185-6.

Judgment and order affirmed.
Ross, J., concurred.

MCKINSTRY, J. I concur in the judgment:

First-Appellant contends the court erred in allowing a challenge, on the ground of implied bias, to certain jurors. But no exception can be taken to the decision of the court allowing a challenge: Penal Code, 1,170.

Second-Appellant urges it was error on the part of the judge below to deny defendant's motion to examine other witnesses as to the condition of deceased at the time certain declarations, alleged to be dying declarations, were made. But the judge, being satisfied that the declarations were made when deceased was under a sense of impending death, was not required upon the mere suggestion of defendant's counsel that other persons might know something of the condition of deceased, to postpone further proceedings until they could be brought in for examination. If defendant had offered to prove by ary named witness, that deceased, when he made the declarations, was not or did not believe himself in extremis, the point now made would have been presented by the record.

Third-It is insisted the evidence did not show that deceased had abandoned every hope of recovery when the declarations were made. But the evidence sustains the finding of the court in that regard.

Fourth. The court did not err in admitting evidence of the fact that defendant remained silent when deceased said, "that is the man who cut me," for his silence was some evidence that the statement was true. Nor in admitting evidence of defendant's declarations when he was arrested; the fact that he was under arrest, not necessarily proving that the declarations were involuntary; nor in permitting the prosecution to put in evidence the pocket-knife of defendant, even if it be admitted, it was taken from him by force. Fifth.-Appellant claims error in that the court overruled his objections to questions put to the witness, James Brown, and in "compelling" the witness to answer them. The witness was asked, in