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the appointment of a receiver, the order sustaining the demurrer is reversed, with costs of both courts, and the record will be remanded for further proceedings in accordance with the rules of the court.
MCALVAY, C. J., and BROOKE, STONE, OSTRANDER, BIRD, MOORE, and STEERE, JJ., concurred.
PEOPLE v. CHRISTMAS.
1. EVIDENCE-DYING DECLARATIONS—HEARSAY.
Before a statement made by a victim of homicide is ad.
missible in evidence as his dying declaration, a preliminary investigation must be made by the court to determine its admissibility; and should be of such nature as to satisfy the court that the declarant was in fact in extremis when he made the declaration and that he made it under a
sense of impending death." 2. SAME-DEATH-HOMICIDE.
Evidence that the declarant was under the conviction of
approaching death should usually be offered as a basis
for the admission of the declaration. 3. SAME.
Where the only evidence that the court had, in a prosecu
tion for homicide, of decedent's belief that he was going to die, was in the declaration made by him, seven days before his death, and he was not, in fact, in extremis, and his statement included the accusation based on hearsay that respondent fired the fatal shot, it was incompetent.
Error to the recorder's court of the city of Detroit; Phelan, J. Submitted June 12, 1914. (Docket No. 120.) Decided July 24, 1914.
1 On the general question of the admissibility of dying declarations, see note in 56 L. R. A. 353.
Sabo Christmas was convicted of murder. versed.
Watson, Safford & Shepherd, for respondent.
Grant Fellows, Attorney General, Allan H. Frazer, Prosecuting Attorney, and Harry B. Keidan, Assistant Prosecuting Attorney, for the people,
BROOKE, J. Respondent stands convicted of the crime of murder. The record discloses the following facts: On the afternoon and evening of July 13, 1913, a christening party was held at the home of George Peskari in the city of Detroit. About 30 or 40 people were present. The celebration, which included drinking and dancing, lasted from 4 or 5 o'clock in the afternoon until nearly midnight. The respondent and one Julian Cadarean were guests at this entertainment. During the evening one or more disputes arose in the room where the dancing occurred, induced, it would appear, by too liberal an indulgence in intoxicating liquor on the part of the guests, and perhaps further incited by jealousy. Immediately after the last quarrel, about 11:30 p. m., Cadarean was shot by some one of the guests present. It was apparent that the shot had been fired within 10 inches of the body. Cadarean was taken to the hospital, and for a number of days hope was entertained of his recovery. The wound, however, became septic, and he died July 22, 1913, nine days after receiving his wound. Respondent was arrested and convicted.
In the course of the trial the following proceedings were had:
"George Donaldson, a witness being sworn on behalf of the people, testified as follows:
“By Mr. Keidan: I am a stenographer in the circuit court of this county. I have been attached to the circuit court about 12 or 14 years.
“Mr. Wilson: We will admit his competency.
"I took a statement of one Julian Cadarean at St. Mary's Hospital on July 15, 1913, in the presence of Assistant Prosecutor Arthur Kilpatrick, Officer Charles C. Carmody, Dr. W. C. Edmonson, and myself. I took down the statement that was made there; the questions being asked by Mr. Kilpatrick, and the answers being given by Julian Cadarean. I transcribed that statement. That is the statement there.
"Mr. Keidan: I am going to offer this statement as the dying statement.
“Mr. Wilson: I object to its introduction until it is proved to have been.
“The Court: You will have to go on and show first (paper marked Exhibit 3).
"A. This Exhibit 3 is a transcript of that statement.
"Q. Now, will you read the statement, the questions, and answers?
"Mr. Wilson: I object.
“Mr. Keidan: I want to say now that the statement itself will show that it is a dying statement.
"Mr. Wilson: I think that is a law question that should be discussed with the court before given to the jury.
"The Court: No, I will pass it.
“Mr. Wilson: I think the jury should be excused until it is determined whether it should be admitted or not.
“The Court: Let me have it first, Mr. Donaldson. I am not going to excuse the jury. (Paper handed to court.)
“The Court: It is admissible. Proceed. (Exception for defendant.)
“Q. Will you please read it?
“A. Julius Cadarean. (Statement taken at St. Mary's Hospital on Tuesday evening, July 15th, 1913, at about 9 o'clock. Present, Assistant Prosecutor Arthur Kilpatrick, Officer Charles Carmody, Dr. W. C. Edmonson, and stenographer George Donaldson.)
“Examined by Mr. Kilpatrick:
"Q. Do you know that you are in pretty bad shape? The doctor doesn't think you are going to get better.
“A. He don't? “Q. The doctor doesn't think you are going to get better. Do you know you are in pretty bad shape; that you are liable to die? Do you know you are in pretty bad shape? The doctor says you are not likely to get better. In fact you are going to die. Do you know that?
"A. (The witness nods his head, 'Yes.')
“Q. I want you to tell us before you do die—we hope you will get better, but it looks as if you would not—we want you to tell us who did the shooting. Who was it, Julius, fired that shot?
“A. That Saba.
“Q. Did you have some trouble with Saba before this?
“A. Yes. "Q. The same night? “A. Same night. "Q. How long before he fired the shot? “A. Half an hour. "Q. What was the trouble about? "A. There was trouble with a girl. "Q. With the girl? “A. Yes. “Q. What girl was that? “A. She is out. She was arrested. She came out. "Q. That is Juliana Berch? "A. Yes. “Q. Is that her name? “A. Yes. "Q. You had trouble with him over her? “A. Yes. "Q. Did you strike him?
“A. No. He asked her if she wants to dance with him, and she says, 'No.' He says, 'Why? She says, 'I don't want to.' Then he came to me and says, “I'll show you if she is going to dance with you.'
"Q. Was Saba there all the evening? "A. Yes, all the evening.
"Q. He came there about what time, do you remember?
“A. About 3 o'clock.
"Q. About 3 or 4 o'clock? “A. Yes. “Q. Are you sure he was there that early? “A. Yes. “Q. Did you have any trouble with Nick Paduro? "A. Yes, I had with him, too. "Q. That was along about 6 o'clock, wasn't it? “A. Yes. He was drunk. "Q. That was over the girl, too, wasn't it? “A. Yes. "Q. Did Nick go home after that, do you know? “A. Who?
“Q. Did Nick Paduro go home after you had that trouble with him?
“A. No, he was out. "Q. Was he there? “A. He was outside. That trouble was inside. "Q. He was outside at the time Saba shot you? “A. Yes.
“Q. Did you have any trouble with what is that man's name that runs that house? What is his name at 157 Wight?
“A. I don't know.
"Q. Did you have any trouble with him, with the boss of that house?
“A. I don't know who is the boss.
"Q. Did anybody just before the shooting, order you out of the house, tell you to go out?