— Appellant was tried on a charge of murder, convicted, and sentenced to be hanged. This appeal is from the judgment and order denying his motion for a new trial. One of the grounds upon which he insists that his motion for a new trial should be granted is, that the dying declaration of the deceased was improperly admitted in evidence. The condition of the deceased and the character of his wounds were testified to by his attending physician and surgeon, who further testified to having informed the deceased the day before he made his dying declaration that he was going to die, and he thereupon expressed a wish to make a dying declaration. The opening sentence of the declaration is as follows: “I, Fernando Asero, believing I am about to die, do make this my dying statement.”
We think it sufficiently appears from all the evidence before us on this point that this declaration was made under a sense of impending death, and therefore was properly admitted. As reported, the facts in People v. Hodgdon, 55 Cal. 72, are not the same as in this case.
The defendant’s witness', Torres, testified on his examination in chief to what occurred between the deceased and one Prado and some other persons just prior to the homicide. On his cross-examinatioiX witness was asked this question: “ Did n’t Prado come out and run the deceased over a hundred yards at that ime ? ”
The question was objected to as immaterial and incompetent. The objection was overruled, and the defendant excepted.
The objection "was properly overruled. The evidence of this witness tended to prove that deceased was exhibiting a belligerent propensity just before the shooting commenced, and that Prado was endeavoring to restore peace by inducing deceased to withdraw from the company he was in. Prado and defendant were jointly charged, although the latter had a separate trial. It was material for the defendant to prove that deceased
We discover no ground for disturbing the judgment or order denying the motion for a new trial.
Judgment and order affirmed.