Terry, C. J., concurring.
The defendant was indicted for murder and convicted of manslaughter.
1. The first point made by the counsel of defendant is, that *36the Court below erred in admitting in evidence the dying declarations of the deceased, Francis Brubaker. The learned counsel maintains this point upon two grounds: first, that dying declarations are inadmissible under our statute, which provides that the defendant is entitled to be confronted with the witnesses against him, in the presence of the Court; second, that conceding that such declarations are admissible, they can only be received in cases of secret crime, where there is no living witness.
The reasons for the admission of hearsay testimony in the shape of dying declarations, in trials for murder, are very fully stated in the treatises upon criminal law. (2 Russell on Crimes, 752; Roscoe’s Cr. Ev., 34.) The most substantial ground upon which the admission of such testimony can be placed, is that of necessity. It is true that the condition of the person making the declaration in the last sad hours of life, under a sense of impending dissolution, may compensate for the want of an oath; but it can never make up for the want of a cross-examination. This was very clearly shown in the case of Reason and Tranter. (1 Str., 500.)
But, however unsatisfactory such evidence may be, the necessity of the case has always induced the Courts to admit it; and this exception to the general rule of testimony has been too firmly established to be overthrown. There would be the most lamentable failure of justice, in many cases, were the dying declarations of the victims of crime excluded from the jury.
The objection that this species of testimony can only be admitted, if at all, in cases of secret crime, is not applicable to the facts of this case. It appears from the testimony that there were only four persons present during the conflict. These were the defendant and his brother-in-law, Urin, and the brothers Francis and Robert Brubaker. It also appears that defendant shot both the brothers, killing Robert instantly, and giving Francis a mortal wound, of which he died some fourteen days later. From the testimony of Urin, he was not in a position to sec, and did not know who fired the first shot, Francis or the defendant. As to the most material fact in the case, there was no living witness who could speak, and the dying declarations of the deceased were properly admitted. In the case of Reason and Tranter, already referred to, the declarations were admitted, although there was a witness outside the room in which the deceased was. killed, and who heard the blow given, but could not tell by whom it was given. So, in the present case, the deceased was inside the house when he was shot by the defendant, while the witness and defendant were on the outside, the defendant firing through the door.
2. The next point urged by counsel for defendant is, that it was error to permit the prosecution to prove the verbal declarations of the deceased, similar to and confirmatory of his written *37declarations under oath, signed by him, and attested by the magistrate before whom they were made. These written declarations were made at a different time from the verbal, and were read in evidence to the jury. Had the District Court permitted the prosecution to prove the verbal declarations of the deceased, without the production of the written, and without first laying the proper foundation for the secondary evidence, there would have been error. (1 Greenl. Ev., § 161.) But we can not perceive how the defendant was injured when the written declarations were first introduced, and the verbal declarations, made at a different time but of a similar import, afterwards admitted. In Reason and Tranter’s case, verbal proof of the first and third declarations of the deceased were admitted, the prosecution not being able to produce the written proof of the second declaration. In this case, the prosecution was bound to produce the written declarations, signed by the deceased; but having done so, it was proper to admit proof of the fact that the deceased had, at different times, made the same statement.
3. The objection made by the defendant, in the Court below, to the admission of the written declarations of the deceased, was general, and not specific. The defendant can not, therefore, be permitted to make an objection, for the first time, in this Court,to the admission of a portion, only, of these declarations. (The People v. Apple, 7 Cal. Rep., 289.)
4. The refusal of the Court below to submit the question of admissibility of the dying declarations of deceased to the jury was no error. The correct rule is clearly and concisely stated in Greenleaf on Evidence. (§ 160.)
5. There is nothing in the record to show that the Court charged the jury orally; and, in the absence of proof, we must presume that the Court below did its duty.
6. There was no error in refusing- proof of threats made by Robert Brubaker. The record does not show -what was the character of these threats. They are simply stated to have been “against the defendant’s life.” That might be true, and yet they may have been conditional and justifiable. We are bound to presume that proof of them was properly excluded.
7. There was no error in refusing the fourth instruction offered by defendant. The third instruction asked by the defendant, and given by the Court, contained the true principle. The fourth instruction substantially proposed to submit to the jury the question as to the admissibility of the dying declarations.
8. There was no error in refusing a new trial. The evidence was ample to.sustain the verdict of the jury. The dying declarations of Francis Brubaker were substantially confirmed by the other testimony in the case.
Judgment affirmed.