Southern

The defendant has been convicted of murder of the second degree, and now prosecutes this appeal. The deceased was an Indian, and his death was caused by a shot from a pistol. The shooting occurred upon a public street of the city of Santa Ana, at about the hour of 10 P. M. The defendant denied that he fired the shot, or was present at the scene of the shooting.

*646 During the progress of the trial, when the time arrived for the defendant to present his case, he proposed to prove a dying declaration of the deceased. This declaration was made by deceased in answer to a question put to him by a bystander a few moments after the shooting, and was to the effect that he (deceased) was shot by a Mexicano (Mexican). In view of the fact that the defendant is an American, the importance of this evidence to him is readily perceptible. There was evidence introduced tending to show that the defendant a few moments before the shooting addressed the deceased in the Mexican dialect, and also other evidence indicating that the locality where the shooting occurred was but dimly lighted. From these circumstances it could well be argued to the jury that the deceased was mistaken as to the identity…