166 P.2d 585 | Cal. Ct. App. | 1917
Lead Opinion
The defendant was convicted of murder in the second degree and sentenced to imprisonment in the *460 state prison for the term of twenty years. This appeal is from the judgment and from an order denying defendant's motion for a new trial.
On July 26, 1916, Mrs. Madeline C. Silveria, realizing that she was about to die as the result of an operation for abortion performed upon her by the defendant, made a dying declaration in which she stated that the defendant performed an abortion on her on July 4, 1916, and then added: "He told me he had not lost a case in thirty years, and now I am dying, now I am going to die." Within fifteen minutes after making the declaration she died. In support of the appeal defendant insists that the court erred in admitting in evidence that part of the dying woman's statement above quoted.
Dying declarations as competent evidence are restricted to the cause of death and the circumstances immediately attending it as part of the res gestae. (Code Civ. Proc., sec. 1870, subd. 4; People v. Fong Ah Sing,
Defendant also insists that the dying declaration of the deceased was not corroborated, and that therefore the judgment should be reversed. This position is based upon the provisions of section
The defendant further insists that the court erred in giving the following instruction: "A witness is presumed to speak the truth. This presumption however may be rebutted by the manner in which he testifies, by the character of his testimony for truth, honesty, or integrity, or his motives, or by contradictory evidence. In determining the credit to be given to the testimony of a witness you may take into consideration the conduct, appearance, and manner of the witness while on the stand; his interest, if any, in the result of the trial; the motives which actuate such witness in testifying; the reasonableness or unreasonableness of his testimony; the candor or lack of candor with which he testifies; his relation or feeling toward the parties, and the probability or *462 improbability of his statements being true when considered with reference to all the other evidence, facts or circumstances in the case. A witness who willfully testifies falsely as to any material fact in giving his testimony is to be distrusted in other parts of his testimony. This instruction applies to the defendant as well as to all other witnesses."
We do not concur in appellant's criticism of this instruction. It does not single out and unfavorably comment on the defendant's testimony, as was done in the case ofPeople v. Maughs,
Other instructions are complained of, but we think the court's charge as a whole fairly covered the law applicable to the facts of the case.
We regret to have occasion in this case as in others to refer to the conduct of the district attorney in the trial of the cause. Our sense of justice is often shocked by the unfair questions and general demeanor of certain prosecuting officers; but in the case at bar, while certain actions of the district attorney deserve censure we are unable to say that there was such willful persistence in misconduct as to require a reversal of the judgment.
The judgment and order are affirmed.
Lennon, P. J., and Richards, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on June 14, 1917, and the following opinion then rendered thereon:
Addendum
In denying the application for a hearing in this court after decision by the district court of appeal of the first appellate district we deem it proper to say:
First: In regard to the objection to the admission in evidence of that portion of a dying declaration detailing a statement *463 made by the defendant, a sufficient answer is contained in the statement of the district court of appeal substantially to the effect that it is a fair inference from the record that the statement attributed to the defendant was made just before the operation and as an inducement thereto, and that it therefore constitutes part of the res gestae of the operation. We do not desire to be understood as giving our approval to that portion of the opinion substantially stating that it could properly have been held a part of such res gestae if made subsequent to the operation.
Second: Upon the question of the corroboration of the dying declaration of deceased by other evidence, a sufficient answer to the objection of appellant in so far as the petition for hearing in this court is concerned is to be found in the conclusion of the district court of appeal "that the dying declaration is abundantly corroborated in every essential respect." Our order denying a hearing in this court is not to be taken as an intimation of our approval of that portion of the opinion which intimates that the deceased could not be regarded as an accomplice whose testimony required corroboration under the provisions of section
The application for a hearing is denied.