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“Q. When you had this trouble by the way, this girl was not there when he shot you, was she?
"A. No, that girl was not. That girl was dancing with somebody else.
"Q. But Juliana Berch, she was home? She had gone home?
"A. Yes. "Q. It was another girl that you had the trouble? “A. Yes, Mary. "Q. That is Mary Merch? “A. Yes.
"Q. After this fellow told you to get out of the house, did he strike you with anything or hit you?
"A. Yes, he knock me in the head with a piece of plank; what was it? and Saba
“Q. Why did Saba have the gun? "A.
had the gun before and he gave it to him.
"Q. Who had the gun? "A.
(name not understood). "Q. Little Dan? "A. Yes. “Q. Little Dan had the gun? "A. Yes. “Q. Did you see him give it to Saba ? “A. Yes.
"Q. Do you know what Saba did with the gun after he shot you?
“A. I don't know. He put it in the pocket, may be. May be he throw it outside, I don't know.
“Q. You did not see?
"A. No, I didn't see him because the wagon came, took me off.
"Q. Nick Paduro was outside, was he?
"A. Yes, he was outside. Policeman took him outside.
“Q. But he was there when the shooting took place?
"Q. Did he go away after you had the trouble about 6 o'clock?
“Q. Was Saba there when you had the trouble with Nick?
"A. Yes, he was there.
"Q. How long were they gone before they came back? How long before they came back? How long before Saba and Nick came back?
“A. I don't know. The wagon took me; I don't know whether they came back or not.
"Q. I mean after this trouble, about 6 o'clock. They went away, didn't they?
“Q. You are telling us this realizing that you are not likely to get better?
"Q. Aren't you? You would not, feeling that you are going to die, you would not say that Saba shot you unless he actually did, would you?
"A. I don't know.
“Q. You would not say that he shot you if he did not?
“A. That girl she told me. Her mother is right here now.
“Q. Didn't you see Saba shoot you?
"A. And he had the gun, nobody else, and that girl says that Saba shoot.
"Q. Had you ever had any trouble with Saba before this night?
“Q. Is there anything else you want to say to us? Anything else you want to tell us ?
"A. Me? "Q. Yes. “A. No.
“Q. (to Mr. Carmody). Do you think of anything else you want to ask him?
“By Mr. Carmody: Q. You took Julia home? "A. Yes.
“Q. When you took her home did Saba say to you that he will get even with you for that?
“A. Yes. “Q. He said that, did he? "A. Yes. I took her home; I came back again. "Q. He said he would get even with you for that? "A. Yes.
"Q. You had some trouble in the afternoon with Nick Paduro?
"Q. What time was it that you had trouble with Nick?
“A. Six o'clock.
"By Mr. Kilpatrick: Q. That was over Julia, wasn't it?
“A. Yes. Julia was in there when I had the trouble with Paduro.
“Q. Was it because she would not dance with him?
“A. Yes. She told me: 'I want to go home; I don't want to have no trouble.' I says, 'All right. I took her home.
“By Mr. Carmody: Q. Did Nick say at that time that he would get even with you?
“A. Yes. Policeman take him out of that. He didn't have to go in no more. 'If I find you in I arrest you.'
“Q. Were Giga and Pete there at the time of the shooting, the barbers?
“A. No, I don't think; I think he was home. Giga was there.
"Q. Giga was there at the time of the shooting? “A. Yes.
"Q. (to Mr. Kilpatrick). He told me the first day that Giga and Pete knew who shot him. (To the witness.) Isn't that what you told me; that Giga and Pete knew who shot you?
“A. Pete was home, I guess. Just Giga was there. "Q. Giga was there? “A. Yes. “By Mr. Kilpatrick: Q. You did see the gun?
“A. I see the gun when he gave it to Saba. I didn't see Saba shoot. Of course the girl told me that she see when he shot.
"Q. But you saw the gun handed to Saba? "A. Yes. "Q. You saw Dan hand Saba the gun? “A. Yes. “By Mr. Carmody: Q. Did you drop at that time when you were shot or did you walk out into the street? Did you drop when you were shot?
“A. Yes, I went out, I go myself upstairs on the bed.
"O. On the bed ? “A. Yes, and the policeman came up. “Mr. Wilson: At this time I move that the entire statement be stricken out as being confessedly based upon hearsay evidence, being testimony that the witness himself could not have given if he had been in court; that it is prejudiced. And we make a motion at this time that this trial be declared a mistrial. The defendant has been irreparably prejudiced by the reading of that statement.
“The Court: I will leave it stand. Any question you wish to ask Mr. Donaldson? He has got to get back to his court? Ask him if you want him, or else excuse him.
“Mr. Wilson: Are you through with him? That is all.
“Mr. Keidan: The statement is offered in evidence. “The Court: It may be accepted.
"Mr. Wilson: Does the former objection apply to that, the objection and exception ?”
After the foregoing alleged dying declaration was received in evidence, the prosecuting attorney moved the court as follows:
"Mr. Keidan: That is all, your honor. At this time, if your honor please, I would like to make a motion to strike from the dying statement that was admitted in evidence here the other day, the following answer or part of answer on page 7, the fourth line, the sentence, 'That girl she told me.
“The Court: What:
“The Court: “That girl she told me.' Is that the language of the deceased prior to his death in the hospital?
"Mr. Keidan: Yes, your honor. "The Court: Very well.
"Mr. Keidan: And also in line 8, ‘and that girl says that Saba shot;' two words of that are in line 9. That this be stricken out.
“The Court: It may be.
“Mr. Wilson: At this time I desire to move that the entire dying declaration be stricken out for the reason that it was not made under the fear of impending death; the testimony of Dr. Walker being that this man was not in danger of death until two days