Wallace

— The defendant was convicted of the crime of murder in the first degree for the killing of one Albert H. Rice, and adjudged to suffer the penalty of death. From this judgment, and an order refusing him a new trial, this appeal is taken.

The homicide was committed at a place known as the Élite Theater, in San Francisco. The deceased was the proprietor of this resort, and the defendant was employed *161 there for the purpose of keeping order and suppressing disturbances. This so-called “ theater” is spoken of by one of the witnesses as a cellar, and was denominated by counsel for the appellant, during the trial, as a dive, and its character is sufficiently disclosed by the testimony, which shows that it is below the street, and a part of the duty of the “ actresses ” there employed is to serve drinks, attend the “ boxes,” and solicit patronage for the bar.

Upon the trial, Lulu Vernon, an “ actress ” in this “ theater,” was a witness for the people, and was permitted to testify that defendant knocked at her bedroom door on the day of the shooting, and that she did not admit him. The attorney for the people then asked her: “ Since you have been working at the Elite Theater, has…

— I think the defendant waived his right to complain of the ruling of the court with respect to the statement made by Moore at the restaurant immediately after the shooting, by withdrawing his objection to the questions asked; but if this were not so, the error was cured by the court in its instruction to the jury, that the defendant was not bound by anything Moore may have said, not in his presence and hearing.

For the reasons stated in paragraph 4 of the opinion, however, and on account of other errors, not noticed in the opinion,! think the defendant was prejudiced by the rulings of the court, and that he is entitled to a new trial. The written statement of Charles F. Smith contained evidence of conversations, other than the conversation inquired into in his examination in chief, — statements which were clearly hearsay. The testimony of Asche as to what the deceased stated before he met the defendant prior to the homicide may not have had any important bearing on the case in the minds of the jury, but it was, nevertheless, erroneous^ admitted. The instruction of the court that “the killing must take place while the *170 person killed is in the very act of making such unlawful…