(concurring specially). Counsel for appellant strenuously insist that the ruling of this court that there is proof in the record upon which to base the verdict of manslaughter is erroneous. If it be assumed, for the sake or argument, that the vedict of the jury should have been “guilty of murder in the first degree,” or “not guilty,” and that there was no evidence justifying a verdict of manslaughter, nevertheless appellant would not be entitled to reversal on this ground for two reasons: First, in the court below he sat by, and without objection permitted the court to instruct the jury on the subject of manslaughter. If, in fact, there was no evidencce justifying such instruction, it was his duty to have objected to the. giving of the same. State v. Gonzales, 19 N. M. 467, 144 Pac. 1144; State v. Mc Knight, 21 N. M. 14, 153 Pac. 76. Second, a defendant in a prosecution for homicide cannot complain that he was convicted of a lower grade of offense than the evidence showed him to be guilty of. Michie on Homicide, vol. 2, § 342. Since the jury found that appellant unlawfully killed the deceased, the presumption is that had they not found him guilty of manslaughter they would have found him guilty of murder; hence the appellant is not in a position to complain, since he was not prejudiced by reason of the verdict finding him guilty of the lesser crime. This proposition is supported by numerous cases. People v. Tugwell, 32 Cal. App, 520, 163 Pac. 508; Bennett v. State, 95 Ark. 100, 128 S. W. 851; Spence v. State, 7 Ga. App. 825, 68 S. E. 443; Brown v. State, 31 Fla. 207, 12 South. 640; Serna v. State (Tex.) 105 S. W. 795; State v. Perry, 78 S. C. 184, 59 S. E. 851; State v. Owens, 79 S. C. 125, 60 S. E. 305; State v. Henderson, 80 S. C. 165, 60 S. E. 314; Rolls v. State, 52 Miss. 391; Murphey v. People, 9 Colo. 435, 13 Pac. 528. For these reasons we shall give no further consideration to this point.
A more serious question is suggested, however, which is that the ruling of this court holding admissible the testimony of Mrs. Tyler as to statements which she heard Mrs. Farmer make after the homicide, Mrs. Farmer not being called as a witness, was erroneous. The proceedings in the trial court bearing upon this point are stated in the former opinion in this case. In the former opinion we said concerning this testimony.
“The testimony is neither immaterial nor irrelevant, nor is it hearsay. It is testimony reflecting directly upon the whereabouts of the witness at the time of the homicide.”
Upon further consideration we believe that this statement is inaccurate. "While it is true it was testimony bearing upon the whereabonlts of the witness at the time of the homicide, it was hearsay testimony. Hearsay evidence is evidence offered by a witness whose testimony consists of a narration of what other persons have communicated to him concerning the material and relevant facts. In the trial of this case the whereabouts of the witness, Scott Arnold, became a relevant fact, and this fact was permitted to be proved by evidence of a statement made by Mrs. Farmer after the transaction as to the whereabouts of the witness. Mrs. Farmer was not put upon the stand, but evidence of her statement as to where she said Scott Arnold was at; the time of the shooting was permitted to be given by a third party. This evidence being permitted, the right to cross-examine Mrs. Farmer was denied the appellant.
In the case of Hopt v. Utah, 110 U. S. 574, 4 Sup. Ct. 202, 28 L. Ed. 262, the following was said:
“No proper foundation was laid for the question propounded to the surgeon as to who pointed out and identified to him the body he examined as that of John F. Turner. He had previously stated that he did not personally know the deceased, and did not recognize the body to he his; he did not know' that it was the body which the father of the deceased desired him to examine; consequently his answer could only place before the jury the statement of some one, not under oath, and who, being absent, could not be subjected to the ordeal of a cross-examination. The question plainly called for hearsay evidence, which, in its legal sense, ‘denotes that kind of evidence which does not derive its value solely from the credit to be given to the witness himself, but rests also, in part, on the veracity and competency of some other person.’ 1 Greenleaf, Ev. § 99; 1 Phil. Ev. 169. The general rule, subject to certain well-established exceptions as old as the rule itself, applicable in civil cases, and therefore to be rigidly enforced where life or liberty is at stake, was stated in Mima Queen v. Hepburn, 7 Cranch, 290, 295 [3 L. Ed. 348], to be ‘that hearsay evidence is incompetent to establish any specific ■fact, which fact is in its nature susceptible of being proved by witnesses who speak from their own knowledge.’ ‘That this species of testimony,’ the court further said, speaking by Chief Justice Marshall, ‘supposed some better testimony which might be adduced in the particular case is not the sole ground of its exclusion. Its intrinsic weakness, its incompetency to satisfy the mind of the existence of the fact, and the frauds which might be practiced under its cover, combine to support the rule that hearsay evidence is inadmissible.’ The specific fact to be established by proof of what some one else said to the surgeon as to the identity of the body submitted to his examination was that it was the body of John F. Turner. What Fowler, who was not even shown to have been placed in charge of the body, nor commissioned to deliver it to the surgeon, nor to he acquainted with the deceased, said, in the absence of the prisoner, as to the identity of the body, was plainly hearsay evidence, within the rule recognized in all the adjudicated cases.” .
The fact that the district attorney attempted to prove was, as stated in the former opinion, tbfat Scott Arnold, a very important witness for the defense, “could not have seen what he testified to, for the reason that his mother, when the shooting began, grabbed him and held him until after the shooting was over.” The state did not attempt to-prove this by calling Scott Arnold’s mother, who could have given direct evidence, on the subject, nor by calling Mrs. Farmer, who made the statement, but by calling Mrs. Tyler, who had no personal knowledge whatever of the matter, and permitting her to testify as to what she heard Mrs. Farmer say ¡about it. Certainly Mrs. Tyler’s evidence was a narration of what anothep person communicated to her concerning a relevant fact within the definition of hearsay. Her statement as to the whereabouts of Scott Arnold “does not derive its value solely from the credit given to the -witness himself, but rests also, in part, on the veracity and competency of some other person,” within the rule given in Hopt v. Utah. The value of her statement rests entirely upon the veracity and competency ;of Mrs. Farmer, who 'was not called, whose statement was never made in court nor under oath, nor subject to-cross-examination by the party against whom it was offered.
, The defendant was entitled to know the source of Mrs. Farmer’s statement. There is nothing in the record to show that Mrs. Farmer had any personal knowledge on the subject, nor that she was in fact present at the time, to which her statement to Mrs. Tyler related. For all that appears, Mrs. Farmer might have been repeating statements made to her by some one else, who, in turn, knew nothing about it. Certainly defendant and his counsel were entitled to have Mrs. Farmer produced, to cross-examine her as to her source of knowledge of tbe facts which she related, to have the jury consider her maimer and bearing as she told her story.
It cannot be claimed that the testimony was admissible as impeaching. While a witness may be impeached by showing that he has made contradictory statements, in this case no grñund was laid for impeaching evidence. For this reason we think that the court erred in admitting this testimony.
We are further of the opinion that we were in error in the former opinion in holding that the trial court was correct in excluding the cartridges found at the scene of the shooting. While this evidence may have had but slight value, by reason of the public place in which the cartridges were found, still we believe that the weight to be given to the evidence was for the jury. The question as to whether deceased had fired one or two shots was one of the disputed questions in the case. The evidence on behalf of appellant was to the effect that he had fired two shots, and the offered evidence was to the effect that two empty cartridge shells were found near the scene of the shooting, of the same caliber of the revolver used by the deceased.
“Articles found at or near the scene of the homicide, subsequent thereto, which are apparently connected with and tend to explain 'it, are admissible, although not otherwise connected with the accused.” 6 Ency. of Ev. p. 669.
In the case of Horn v. State, 12 Wyo, 80, 73 Pac. 705, the state was permitted to introduce in evidence empty cartridges of the same caliber as defendant’s revolver, although found two weeks after the homicide, about two miles from the scene thereof, on a public highway. It was the theory of the prosecution that the defendant had traveled over this highway in his flight. Other cases will be found in the notes in 6 Ency. of Evidence, pp. 669, 670. We think that this evidence should have gone to the jury, and that it was for the jury to determine its weight.
For these reasons I concur in a reversal,