*1 1917.] they questions presented by Other record, but as arise, not trial, there be a new refrain we from noticing them. judgment
The and order are reversed.
Hart, J., Burnett, J., April 18,
[Crim. THE PEOPLE, Appellant. GIBSON, L. Respondent, v. A. Law—Evidence—Dying Declarations.—Dying Criminal and the evidence are canse of death restricted to the circumstances attending it of the res — — — — Id.—Murder Abortion Statement of Defendant Evidence Declaration.—In resulting for murder from performance abortion, a statement made the deceased about fifteen per- before her operation formed date, on a stated and that he told her he lost a in thirty years, case followed the declaration that she dying, gestae, is admissible evidence as fair to infer that the statement attributed to the defendant was before Credibility — — Applicability — Id. of Witnesses Instruction Dependant.—An Testimony instruction which sub- Tests mits the who testified in his own credibility usual and commonwith that of witnesses, the other is not erroneous. APPEAL Superior from Court of Santa Clara and from an County, order denying a new trial. Beasly, Judge. W. A. facts are stated in of the court. Gabriel, Kerr, Appellant.
H. A. and Geo. T. Webb, Attorney-General, U. S. John H. Riordan, Deputy Attorney-General, Arthur M. Free, District Attorney, and Deputy Bowden, Archer District Attorney, Respondent. KERRIGAN, J. The defendantwas convicted of murder degree the second imprisonment sentenced to in the appeal is twenty years. This prison state for the term of from and from order motion for a trial. new July 26, realizing that Silveria, Mrs.
On Madeline C. *2 she about to an for die as the result performed upon dying declara- defendant, made a her the performed tion in the which she stated that defendant July told 1916, on and then added: “He 4, her thirty years, am dying, me had not a case in and now I lost going now I am to die.” Within fifteen after mak- ing support In the declaration she de- died. the admitting fendant insists that the evidence part dying quoted. that woman’s statement above competent evidence are restricted immediately attend cause of and the circumstances death 1870, (Code Proc., sec. part res Civ. it as 256, People Fong Sing, Pac. 4; 253, Ah 64 Cal. subd. v. Chuck, 859].) People Ah 66 Pac. Lee Cal. v. infer the statement From it is fair to attrib the record operation; just before uted to the was made defendant then, or imme at the time whether it was made certainly light diately it, some following sheds occurrence, part and was fact a operation; In hence was admissible evidence. the case of People Cipolla, 252], 155 Cal. rule “The (syllabus) : declarations of the follows deceased, shown to have been made under circumstances approaching death, were admissible cover gestae, including only all of the res actual surrounding it, assault and the circumstances but also having immediately thereto direct antecedent matters assault, acts well causal connection closely connected therewith as assault this, Under his statement occurrence. form immediately after the murderous admissible show river, and thrown into body was carried assault place he was thrown about where out at he crawled caught hold place, at that of which he in, by of brush means lay go no further and he could down.” out, and climbed when App. 742, 19 People Brewer, put the decedent and her answer good in health at the that she time effect v. operation, declaration, admitted as of her says truth, related in
tion which resulted her and for that reason was (See, also, Roach, 297; People admissible. Linares, Defendant also insists that judg-
deceased was not corroborated, and that therefore the ment position upon should be pro- reversed. This based visions of section 1108 and section of the Penal Code. provides The former section upon pro- prosecution upon abortion the defendant cannot be convicted of the woman on whom the offense was com- mitted unless she is corroborated other evidence. Section provides that a conviction cannot be tes- timony unless it be corroborated such other evidence as shall tend to connect the with the commission of the offense. As to the first of these sec- tions, it would seem to be a sufficient answer to the defend- ant’s contention that this pro- is not a *3 charged abortion—the defendant with murder. As to 1111, perhaps, section say inap- suffice to that it is plicable to this case for the reason that the deceased could not well in her own rather considered a victim of the offense. However may be, purpose conceding, argument only, that those sections—which jury—are were read to the applicable to the facts of case, this still the case cannot be re- versed for simple reason that in respect. The defendant further insists that the in giv- instruction: “A presumed witness is to
speak the presumption truth. This however be rebutted by the manner in which testifies, by his character of testimony for truth, honesty, integrity, or or his motives, or by contradictory In determining evidence. the credit to be testimony to the you may witness take into con- conduct, sideration the appearance, manner of wit- ness while on stand; interest, any, his in the result the trial; the motives which actuate such testify- witness in ing ; the or reasonableness testimony; unreasonableness of his the candor or lack of candor with which he testifies; his rela- feeling tion toward the parties, and the probability App. improbability being of his statements when considered true to with reference all the other circumstances' willfully in A falsely the case. witness who testifies in giving material fact his is to be distrusted testimony. parts applies in other of his This instruction the defendant aswell to all'other witnesses.” appellant’s criticism of this We do in instruc not concur unfavorably single comment It does not out and case of testimony, as was done Maughs, the de relied merely fendant. It submits general
who own the usual testified credibility in of the other witnesses. common with that (State W. Wells, It is 111 Mo. S. not erroneous. Rep. 751, Am. Bartlett, State 50 Or. St. People Bartol, (N. S.) 802, 814]; L. R. A. complained think the are but we Other instructions applicable fairly as a covered the law court’s whole to the facts the case. regret in this case as others refer occasion to have attorney trial district conduct unfair shocked justice often Our
cause. sense prosecuting offi- of certain questions and demeanor bar, certain actions of dis- cers'; but at while in the case that there attorney we are unable censure trict deserve require persistence in misconduct was such willful judgment. reversal of affirmed. and order J., Richards,
Lennon, J., P. have the cause heard A appeal, in the district denied after *4 by June thereon: opinion then rendered hearing application In denyingthe for a THE COURT. of appeal decision the district court in this court after proper say: appellate district we it deem first objection regard the admission First: evi- detailing a portion declaration of that a state- dence Left Arakelian. ment made answer contained a sufficient substantially appeal the statement of the district court fair the effect that is a inference from the record that the statement attributed defendant was made before the and as an inducement it therefore constitutes ap- giving do not desire to our be understood as
proval stating portion opinion substantially to that properly it could have been a such res held subsequent question Upon
Second: the corroboration other a sufficient deceased objection appellant answer to far as hearing in this court is concerned to be found in the conclusion of the district court of “that re- spect.” hearing Our order in this court not to portion be as an our approval taken intimation of of that opinion which intimates that the deceased could as an required whose cor- provisions roboration under the of section 1111 of Penal Code. Nor is our intimating denial to taken way one the other on the application of section 1108 of the Penal Code. application hearing for á is denied.
[Civ. April 19,1917.] LUFT, Appellant, H. v. KRIKOR H. al., ARAKELIAN et
Respondents. Specific Performance—Contract for Purchase Real Estate— Agency.—Where Ostensible entering into a contract purchase purchaser and sale of real estate the had no actual notice person with whom he contracting was not the actual property, owner of the and did not at time during dealings . person believe, with such believe, have cause to the latter acting purporting to act as agent for the real owner, he specifically cannot enforce against the contract the owner on the theory agency, of ostensible since it is the rule that he who seeks to supposed principal obligations resulting from the