81 Cal. 142 | Cal. | 1889
Information against the defendant charging him with the crime of murder. Conviction of manslaughter. Motion for new trial denied, and defendant appeals.
One of the charges of the court to the jury is copied from the charge in People v. Hong Ah Duck, 61 Cal. 394, and is the same charge which was repeated in People v. Bushton, 80 Cal. 160. There, after mature consideration, it was held to be erroneous. On the authority of that case, the judgment and order appealed from in this case must be reversed. (See also People v. Elliott, 80 Cal. 296.)
As the case will go back for new trial, we are asked also to consider other points made on this appeal.
The court, at the request of the prosecution, gave the following charge: —
“ If the death of the deceased was accelerated by the violence of the prisoner, his guilt is not extenuated because death might, and probably would, have been the result of any disease with which the deceased was afflicted at the time of the violence.”
The charge is quoted from an approved text-writer, and in a proper case may be accepted as sound law. But in this case it was insisted, and there was evidence tending to show, that the only blows given to the de
The exception to the second charge given by the court to the jury at the request of the prosecution is not well taken. It is not open to the criticism of assuming the guilt of the defendant, as claimed by appellant; but simply holds that if the jury find certain facts (of which they must be satisfied beyond a reasonable doubt) from which the law presumes him to be guilty, then his guilt is not extenuated by reason of the existence of certain other designated facts; and it correctly states the law on that subject.
What is claimed to have been oral, dying declarations of the deceased were given in evidence. Among the declarations of deceased so given in evidence were not only statements of fact as to what occurred between himself and the defendant, but also his opinion as to the character of the particular injuries of which he was dying. Objection was made to the evidence of this opinion of the deceased, and exception taken to the order overruling such objection. This exception is well taken. Matters of opinion in dying declarations are not admissible. (People v. Taylor, 59 Cal. 650; People v. Wasson, 65 Cal. 538.)
A dying declaration can only be admitted after first
We perceive no other prejudicial error.
Judgment and order reversed.
Works, J., and Paterson, J., concurred.