I dissent. As to the admissibility of the dying declaration, testified to by the witness Mary Hogan, by her taken in shorthand and therefrom transcribed into writing, I agree with the views expressed by the Chief Justice in his dissenting opinion. It was not properly admitted as a dying declaration under the settled law reviewed by the Chief Justice relative to the prerequisites of such a statement in order to make it admissible, and its admission was highly prejudicial to the defendant. In fact, were it eliminated from the record, it is very doubtful whether the jury would have found the defendant guilty. At any rate, the conviction is supported entirely by Snyder's dying declarations, and Miss Hogan's testimony, not properly admitted, must have greatly influenced the jury in its verdict. Not only that, but the physical facts discredit the alleged dying declaration as to which she was permitted to testify, and it is noteworthy that the facts stated in the majority opinion are taken entirely from Miss Hogan's testimony. *Page 577
The case was tried by the state upon the theory that the defendant fired the first shot, and deliberately murdered Snyder; while the defense proceeded on the theory that Snyder fired the first shot and that the defendant acted solely in self-defense. Therefore, the physical facts are most important to be considered in view of the fact that the defendant's conviction stands solely upon the statements of Snyder, admitted as his dying declaration. Even though the statements made by Snyder, testified to by Miss Hogan over defendant's objections, were properly admissible, they are completely discredited by the physical facts and the testimony of witnesses in corroboration thereof in no manner impeached or overcome by other evidence. Snyder said that he was standing at the head of the bed at the southeast corner thereof, at the time of the shooting, but this cannot be true as shown by the physical facts. The defendant fired four shots and Snyder fired two. Four shells from Le Duc's gun were found and placed in evidence, and also four bullets which came from his gun. Three of the bullets fired by the defendant entered Snyder's body. All four of the bullets fired by the defendant were found and identified. One was taken from the left shoulder-blade; one was lodged in the left arm; the one that struck Snyder in the right hip passed through the hip-bone, struck the vertebrae, ranged downward and passed out the rectum. It was found lying on the floor. The fourth was found lodged in the floor under the bed near the southwest corner post of the bed. There was evidence that it had passed through the mattress on the bed, struck a bed-spring, was deflected from its course, and was found on the floor. Two bullets shot by the defendant passed through the mattress and were, by reason of the course indicated, shot from the northeast corner of the bed toward the southwest corner; hence, one of the bullets that struck the mattress also struck Snyder. Therefore, the most easterly of the two bullets which passed through the mattress must have been one of the bullets which hit Snyder. By taking the holes made in the mattress in the line in which they appear to have been shot from Le Duc's *Page 578 gun, it is unmistakably demonstrated that he was standing on the north side of the bed, and fired in a southwesterly direction towards the foot of the bed where the blood spots were found on the floor. The bullet which struck Snyder in the throat abrased the point of the chin and was found lodged in the lower portion of the left shoulder-blade. Its course was downward. One of Snyder's bullets passed through the north wall of room 16, which was occupied by him, and entered room 18, adjoining, where it was found; the other passed through the edge of the door in the west wall of room 16, but was not found. As two of the bullets fired by Le Duc passed through the mattress on the bed, one of them must have entered Snyder's body. Le Duc says that Snyder fired the first shot while stooping by or shielded by the bed at the southwest corner thereof, while he (Le Duc) stood over at the northeast corner of the bed when Snyder shot at him. His testimony in this respect is corroborated by reason of a bullet hole through the north wall of the room and into room No. 18 adjoining, made by Snyder's gun at a point 8 feet and 4 1/2 inches from the floor, 6 feet 1 3/4 inches from the east wall of the building, fronting on Colorado Street, and 15 feet from the west wall, near the entrance to the room. The ball entered room 18 through the partition 8 feet 7 1/2 inches from the floor and struck the ceiling thereof 29 1/2 inches north from the south wall of room 18. An imaginary line extended from the ceiling in room 18 where the bullet struck and through the partition wall at the point where it was pierced by the bullet, into and across room 16, would make the bullet pass over the bed about a foot from the southwest corner of it, thus demonstrating beyond doubt that the shot was fired by Snyder, as the defendant testified, from a position near the southwest corner of the bed from a point near the floor, where the blood spots were found.
In addition to these convincing physical facts, substantiating the defendant's story of the homicide, Andrew Brann, who occupied room 18 adjoining, testified that he was working as a pressman at the "Butte Daily Post"; that he is thirty-nine *Page 579 years of age, a widower and has a boy thirteen years of age, who occupied room 18 in the Lisa Block with him; that he heard a knock on the door which awakened him; he did not know whether it was on his door or the next door, room 16; he heard voices in room 16, and then a shot was fired. When the shot was fired a bullet came through the wall into the room he occupied with his son, hit the ceiling and spattered plaster all over him and the boy as they lay in bed. He heard five or six shots after that. About two or three seconds elapsed between the first and second shots. The first shot fired was the one which entered his room. His son, Andrew Brann, Jr., testified to the same effect. Coupled with the physical facts, this testimony completely discredits Snyder's statements, and fully sustains the defendant's account of the tragedy.
In my opinion, the physical facts here shown are equally as persuasive, if not more so, than those appearing in the case ofState v. Gunn, 85 Mont. 553, 281 P. 757, where the rule announced applicable in civil actions in the case of Casey v.Northern Pacific Ry. Co., 60 Mont. 56, 198 P. 141, was given approval in criminal cases, viz.: "We are not unmindful of the advantageous position occupied by the jury and the lower court in having the witnesses before them, in hearing them testify, and observing their demeanor; but, though the appearance of a witness is an aid in judging his credibility, it is not an infallible one. Dissimulation is often difficult to detect, and falsehood is often clothed in the garb of truth. Whenever the surrounding circumstances make the story of a witness highly improbable or incredible, or whenever the testimony is inherently impossible, a new trial should be ordered. Physical conditions may point so unerringly to the truth as to leave no room for a contrary conclusion based on reason or common sense, and under such circumstances the physical facts are not affected by sworn testimony which in mere words conflicts with them. (Groth v.Thomann, 110 Wis. 488, 86 N.W. 178.)" *Page 580
It is my opinion that the rights of the defendant at the trial were greatly prejudiced by the testimony of the witness Mary Hogan, improperly admitted, and that the physical facts are such that the verdict and judgment should not be permitted to stand.