[Crim. No. 578.

In Bank.

December 30, 1899.]

#### THE PEOPLE, Respondent, v. DORA FUHRIG, Appellant.

Criminal - Law—Abortion—Evidence—Dying Declarations —Belief of Impending Death not Shown.—Dying declarations in reference to the commission of the crime of abortion, leading to the death of the declarant, are not admissible against a defendant charged with the abortion, where the circumstances surrounding the declarations, the condition of the declarant, and the testimony of the attending physician render it doubtful whether the declarant believed that the hand of death was laid upon her, and her conduct in failing to make any preparations for death seemed to indicate the contrary. Dying declarations are not admissible if the declarant had the slightest hope of recovery, and if it is not plainly manifest that they were made under a belief of impending death.

Id.—Introduction Written by Stenographer without Request—Ratification not Distinctly Shown.—An introductory statement declaring a knowledge of impending death, written by the stenographer who took the evidence, without a previous statement of such knowledge by the declarant, or a request that it be written, is not shown to be distinctly ratified by a mere general assent to a long document embodying the statement after 9 single reading of it as a whole by the stenographer, and the signing of it by the declarant, especially where the circumstances are such as to indicate that a belief of impending death was not then manifestly in the mind of the declarant.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco and from an order denying a new trial. Carroll Cook, Judge.

The facts are stated in the opinion of the court.

Bobert Ferral, for Appellant.

To sustain the admissibility of dying declarations there must appear to he a settled, hopeless belief and expectation of impending death. *(Rex v. Peel, 2*Fost. & F. *21;*6 Am. & Eng. Ency. of Law, 105, 114, 115; *People v. Hodgdon,*55 Cal. 72; 36 Am. Rep. 30; *People v. Taylor,*59 Cal. 640; *Regina v. Spilsbury,*7 Car. & P. 187; *Errington’s Case, 2*Lew. 148.)

Tirey L. Ford, Attorney General, and A. A. Moore, Jr., Deputy Attorney General, for Bespondent.

*413The belief of impending death appears from the signed statement, but might he shown in any manner. (1 Greenleaf on Evidence, sec. 158; *People v.*Sanchez, 24 Cal. 17; *People v. Bemmerly,*87 Cal. 118.) It was the province of the trial judge to determine the admissibility of the declarations. (1 Bishop’s New Criminal Procedure, sec. 1212; *People v. Smith,*104 N. Y. 498; 58 Am. Rep. 547; *Kehoe v. Commonwealth,*85 Pa. St. 127; *People v. Glenn,*10 Cal. 32; Greenleaf on Evidence, sec. 160.)

GAROUTTE, J.

Defendant, having been convicted of the crime of abortion, appeals from the judgment and order denying her motion for a new trial.

The most important testimony in the case bearing upon defendant’s guilt consists of a so-called dying declaration of the deceased. The conclusion the court has arrived at as to the admissibility of this declaration demands a new trial of the defendant. This declaration was in writing and signed by the deceased. It began as follows:

“Knowing I am about to die, I hereby make this my last statement and declare same to he the truth and the whole truth, so help me God.” This statement was made in the following manner, as disclosed by the testimony of O. H. Heynemann. He testifies as follows:

> “'My name is Otto H. Heynemann; am stenographer to the chief of police of this city; held that position all of December last; still hold that position; have seen Dr. Perry; accompanied Detective Cody to the house of Mrs. Walmsley, at 418 Laguna street, in this city; got there between 10 and 11 o’clock in the morning; saw Mrs. Walmsley, the deceased, there; recognize that document; outside of the signatures the handwriting in it is mine; the statement therein, except the formal part—the first line—was made by the deceased, Mrs. Walmsley; Detective Cody, Dr. Perry, a lady, and myself were present; Mrs. Walmsley was in bed, sick; prior to making her statement Dr. Perry told her that she would probably die, and to make a statement and tell the truth; noticed her appearance.” He further testified that at this time “she looked to be very emaciated. She seemed to he in a very weak state. She made this statement immediately after the doctor told her she would probably die.” The witness continued: “I wrote down the statement *414she made immediately after the doctor told her she would probably die; the language she used commences on page *2;*she used none of the language on page 1; the balance of the statement contains her language; her language begins with ‘Ely name is’; I read the whole of the statement to her, including the first page—'the entire statement to its close, and before she signed it she said that it was all right; and she signed it; she said it was all right; afterward Dr. Perry, Elr. Códy, and myself signed it; from the second page to the close of the statement contain the exact words she used; she appeared to be mentally all right.” The language which the witness says the deceased did not use, but which he inserted in the statement, is the language which we have heretofore quoted from the statement. The cause of the woman’s death was peritonitis, and she died the day succeeding the time of the making of the statement. The foregoing evidence in substance contains everything tending to show the condition of the woman’s mind at the time she made the statement.

We find the following definition of dying declarations in the American and English Encyclopedia of Law, volume 6, page 105: “Dying declarations are statements of material facts concerning the cause and circumstances of homicide, made by the victim under the solemn belief of impending death, the effect of which on the mind is regarded as equivalent to the sanctity of an oath.” In the case of *People v. Hodgdon,*55 Cal. 72, this court said: “Dying declarations are not admissible in evidence if the declarant had the slightest hope of recovery, although he dies within an hour afterward.” Indeed, there is no controversy here as to the law. The difficulty arises when a given state of facts is tested in the measure furnished by the law.'. Yet, in "this case, there is no serious difficulty in making the test. We have found no case in the text-books or decisions of courts where hearsay statements have been admitted before the jury under the guise of dying declarations upon evidence so meager as that disclosed in this record. Let us pause a moment to look at the facts, at the same time bearing in mind that the all-important question is, Did this woman at the time she made this statement firmly believe that her death was then impending? In other words, did she believe at the time that she was *415about to die? We lay aside as unimportant the facts that she was emaciated and in a weak state. Hardly to the slightest degree do these circumstances tend to prove the issue. They might be quite material in some cases, but we do not appreciate their importance here. Keither do we attach any weight to the statement of the doctor to her that she “would probably die.” The usual and ordinary effect of such a statement by a doctor to a patient would be to infuse in his mind a hope, a possibility at least, of recovery. Such a statement would naturally indicate that the doctor himself still had some hopes of the patient’s recovery. Laying this statement aside, we then have nothing left save the declaration found in the written statement as follows: “Knowing I am about to die I hereby make this last statement, and declare.” This excerpt from the writing must form the foundation upon which to rest the admissibility of the dying declaration or a foundation is lacking. Yet the difficulty at once presents itself that this statement was a declaration made by the stenographer, and not by the woman. The condition of the mind when a purported dying declaration is made may be determined by the acts or the language of the party. These acts and this language may unite in tending to show one condition of mind, or they may each point to a different condition of mind, and when they are inconsistent the conduct of the patient may indubitably overthrow any conclusion based upon his language, and the reverse may be equally true. So it is not in every case of a statement by the patient that he believes himself about to die that a sufficient foundation for the admission of his declarations is created. But, as suggested, we have not even that here. A statement consisting of one hundred and eighty-four words is read to this dying woman without break or interruption. At the conclusion of the reading she stated it was all right and signed it. It therefore results from the foregoing that the entire basis for the admission of these declarations rests upon a ratification by the unfortunate woman of the stenographer’s statement to the effect that she knew that she was about to die. And this ratification of the statement is found in a general assent to the correctness of the entire contents of quite a long written document. To sustain the people in their contention upon this point would be going *416beyond sound legal principles. If the particular statement of the stenographer had been separately and directly called to the attention of the woman, and she had understandingly and unconditionally declared such statement to be the truth, the question here presented would be different. Certainly, a much stronger showing would then be made. But we have no such case, and the showing made is entirely too weak.

We are more fully impressed with the soundness of this conclusion when we find the physician who had paid her several professional visits, and who was present when the purported dying statement was made, in answer to the question put by the district attorney, “Could you tell, Doctor, from her statement [referring to the statement here under consideration] and manner, whether or not Mrs. .Walmsley appeared to appreciate the fact that she was in a dying condition?” saying: “Not positively, I could not.” If the attending physician, who knew all about the woman’s condition, who had told her that she would probably die, who was in possession of all the evidence that was before the reporter when he made the statement, and which was before the court upon this trial, and who was present when the statement was made, was unable to make a positive declaration that the woman thought she was about to die, then surely her belief of impending death was not plainly manifest. In addition to all this she made no preparation whatever for death, gave no direction as to her effects, offered no suggestion as to a final parting with her friends and relatives, said nothing and did nothing to indicate that the hand of death was laid upon her. Yet, all this time she was fully conscious, her mind was clear, she could talk and use her hands.

The trial court justified its ruling in admitting this statement as a dying declaration upon the authority of *People v. Bemmerly,*87 Cal. 117, but upon a careful consideration of that case, the court finds nothing there furnishing authority for the ruling here made. In that case it is said: *“Aliunde*the written declaration there is sufficient evidence that it was made under a sense of impending death.” Again it is said: “Whether the statement alone would be sufficient to satisfy the rule that the declaration must be made under a sense of impending death need not be decided in this case, as there *417was other evidence that it was so made.” We also find a broad chasm dividing the two cases in their facts in this: In the Bemmerly case the party writing the dying declaration of the wounded man placed nothing therein except what had been in substance stated to him. In the case at bar, the writer of the declaration bodily placed declarations of matters therein which had never even been suggested by the unfortunate woman. Again, in the Bemmerly case the statement after being written was read to the wounded man a single sentence at a time, and then indorsed by him as true, sentence by sentence. Thus every separate sentence was brought directly home to his mind. In the case at bar the statement was read to the woman in hulk, and only indorsed by her in the same way. From what has been said the great difference in thé facts of the two cases is readily perceptible.

For the foregoing reasons the judgment and order are reversed and the cause remanded for a new trial.

Temple, J., McFarland, J., Harrison, J., Van Dyke, J., Henshaw, J., and Beatty, C. J., concurred.