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 corroborated in every essential respect." Our order denying a hearing in this court is not to be taken as an intimation of our approval of that portion of the opinion which intimates that the deceased could not be regarded as an accomplice whose testimony required corroboration under the provisions of section 1111 of the Penal Code. Nor is our denial to be taken as intimating an opinion one way or the other on the question of the application of section 1108 of the Penal Code.
The application for a hearing is denied.