Opinion
06-19-1893
STATE v. FOOT YOU.
On rehearing. Petition denied.
For report of decision on appeal, see 32 P. 1031.
BEAN, J.
A petition for rehearing has been filed, in which it is claimed that the dying declarations of the deceased were inadmissible in evidence, because, as argued, they contain merely his opinion as to who did the shooting. The rule is well settled that dying declarations must relate to such facts only as the deceased would have been competent to testify to if sworn as a witness in the case, and not to mere matters of opinion. The test is whether, if living, the party making the declaration would have been permitted, if called as a witness on the trial, to have testified to those things contained in the declaration. Applying this rule to the case at hand, the evidence was clearly competent. The first statement of the deceased was: "I was shot in the back, and could not see the man that shot me, but I caught a glimpse of him as I fell, and I think that I would know him if I see him." On the following day, when the defendant was taken to the hospital for identification, the deceased, after seeing him, made another statement, in which he said: "I recognize the defendant, Don Foot, [Foot You,] as the man whom I first spoke to when I went into the saloon. He is the stout man I refer to in my previous statement. I then turned, and walked away, and he shot me. I could see him as I fell. I fully recognize the man I just saw as the man whom I spoke to, and who afterwards shot me." There is here no statement of an opinion as to who did the shooting. It is a positive, unqualified declaration of a fact to which deceased could have testified had he been living and called as a witness on the trial. The case of People v. Wasson, 65 Cal. 538, 4 P. 555, relied on in the support of the petition, is wholly unlike the case at bar. In that case the deceased did not see the defendant fire the shot, and did not pretend to know who it was that shot him, and his declaration was merely the expression of an opinion on the subject. Here the deceased saw the man who shot him, and positively identified the defendant as the person who inflicted the fatal wound.
Petition denied.