The conversation of the deceased in the presence of Cotta was admissible, because there was evidence tending to prove a conspiracy between the latter and the defendant.
At the trial the witness, Dunlevy, was asked by the Dis*173trict Attorney, “state what statement Cotta made in the presence of the defendant?” Counsel for the defendant objected to the witness testifying to Cotta’s statement as being irrelevant, improper and incompetent. The action of the Court below in overruling this objection is assigned as error. The response called for by the question could not have been necessarily irrelevant, improper or incompetent. The statement of Cotta was not offered to prove of itself the circumstances narrated by him. It was evidence against the defendant only to the extent it was admitted by the defendant to be correct, his acquiescence being indicated by his express assent by his silence, or by acts or conduct on his part which could be fairly construed as an assent. The defendant’s counsel could have asked for an instruction limiting the effect of Cotta’s statement, but the District Court was not required to sustain the objection and thus determine in advance, that whatever was said by Cotta was distinctly and positively denied by Estrado. Immediately after the close of the narration by Cotta, a statement was made by Estrado, which, while denying many of the details of the accounts given by the former, agreed with that account as to some of the facts. It was not error to permit both statements to go to the jury, that by comparison of the one with the other it might be ascertained how far the allegations of Cotta were admitted by Estrado to be true. The statement of Cotta, however, so far as it was contradicted by, or was irreconcilable with that of Estrado, was not evidence against him, and if Estrado’s statement in respect to the actual conflict was correct, he was innocent of any crime. It cannot be assumed that the statement of Cotta, where denied by the defendant, had any appreciable weight with the jury. There was no evidence, therefore, on which the jury could have properly found that the killing was done in a sudden heat of passion, and there was no error in denying the instruction as to manslaughter.
Judgment and order affirmed.