Opinion
Appeal from the District Court, Second Judicial District, County of Butte.
The defendant was indicted for the murder of Ah Peu, alleged to have been committed on the 11th day of October, 1874. Ah Peu was mortally wounded by a pistol shot, and on the 14th of October, 1874, his dying declaration was taken down by a magistrate, who acted through an interpreter. This declaration charged the defendant with having fired the fatal shot. On the trial it was admitted in evidence. The defendant was convicted, and appealed.
COUNSEL
Jo Hamilton, for the Appellant.
George A. Blanchard, for the People.
JUDGES: McKinstry, J. Mr. Justice Rhodes did not express an opinion.
OPINION
McKINSTRY, Judge
The paper writing offered in evidence, was improperly admitted as the dying declaration of the deceased. The evidence is undisputed that immediately prior to, and at the time of the alleged declaration, the deceased stated, in effect, that if he lived two or three days, he expected or hoped to get well. It is obvious that the deceased did not believe himself in such extremity that every hope of this world was gone; he did not believe his dissolution to be actually impending.
Judgment and order reversed, and cause remanded for a new trial.