Gibson

The defendant was convicted of murder in the second degree and sentenced to imprisonment in the *Page 460 state prison for the term of twenty years. This appeal is from the judgment and from an order denying defendant's motion for a new trial. On July 26, 1916, Mrs. Madeline C. Silveria, realizing that she was about to die as the result of an operation for abortion performed upon her by the defendant, made a dying declaration in which she stated that the defendant performed an abortion on her on July 4, 1916, and then added: "He told me he had not lost a case in thirty years, and now I am dying, now I am going to die." Within fifteen minutes after making the declaration she died. In support of the appeal defendant insists that the court erred in admitting in evidence that part of the dying woman's statement above quoted. Dying declarations as competent evidence are restricted to the cause of death and the circumstances immediately attending it as part of the res gestae. (Code Civ. Proc., sec. 1870, subd. 4; People v. Fong Ah Sing, 64 Cal. 253 , 256, [ 28 P. 233 ]; People v. Lee Ah Chuck, 66 Cal. 662 , [ 6 P. 859 ].) From the record it is fair to infer that the statement attributed…

In denying the application for a hearing in this court after decision by the district court of appeal of the first appellate district we deem it proper to say: First: In regard to the objection to the admission in evidence of that portion of a dying declaration detailing a statement *Page 463 made by the defendant, a sufficient answer is contained in the statement of the district court of appeal substantially to the effect that it is a fair inference from the record that the statement attributed to the defendant was made just before the operation and as an inducement thereto, and that it therefore constitutes part of the res gestae of the operation. We do not desire to be understood as giving our approval to that portion of the opinion substantially stating that it could properly have been held a part of such res gestae if made subsequent to the operation. Second: Upon the question of the corroboration of the dying declaration of deceased by other evidence, a sufficient answer to the objection of appellant in so far as the petition for hearing in this court is concerned is to be found in the conclusion of the district court of appeal "that the dying declaration is abundantly…