The defendant, Francesco Gianfala, was indicted by the grand jury of the parish of St. Mary the 25th day of June, 1902, for the alleged murder of Joseph Rosheger, in that parish, on the 20th day of June, 1902.
The case was regularly assigned. The trial resulted in a verdict of manslaughter. *465The court, on this verdict, condemned the defendant to serve 11 years in the penitentiary.
Defendant, through counsel, reserved a number of bills of exception which present various points for decision on appeal.
The record discloses that there was bad blood between defendant and the wife of the deceased. She, as defendant thought, had calumniated his wife. On the morning of the day of the difficulty, the wife of the deceased used insulting words in hearing of defendant. About 11 o’clock the same day, defendant and the deceased met, and fell to fighting. At the opening of the fight a fatal shot was fired, it is said, by the defendant, and a mortal wound was inflicted on deceased. In fighting, they fell on the ground, and, while scuffling, deceased said to a bystander, who had just rushed to the place where the fighting was going on, that he was mortally wounded. The one to whom this was said by deceased kicked the pistol out of the hand of the defendant, and then he and another man separated the two combatants.
The deceased was taken by him (this witness) and others of the crowd to his home, near by, and laid in his bed. Soon after, the deceased repeated that he was .mortally wounded, and said that defendant had shot him for nothing. Deceased had at no time given the least expression that he had any hope of surviving, from the time that he received the fatal shot to the time that the physician came to his bedside. When the physician came, the deceased said to him that he thought he would die. To use the language of the doctor most favorable to the accused on this point:
“He told me that he did not feel like he would ever get well, and that he had little hope, and repeated that over several times.”
And again:
“He repeated about the same thing — that he thought that he was mortally hurt. I do not remember his exact words.”
The physician, in course of the conversation at the bedside, said to deceased that he would have to be put in the hands of a surgeon in New Orleans, and a surgical operation was his only hope to recover. He, under the physician’s advice, accompanied by him (the physician), left for New Orleans to be operated upon, and it follows that he took whatever chance there was of his getting well again. He left Patterson for New Orleans about two hours after the shooting. In about two days after his arrival at the Charity Hospital he died. His brother testified that he (the deceased) said before and after the physician had left him that he could not live.
The wife of the deceased came up to the defendant about three minutes after the shooting, while some one was holding the defendant, near the place where the fighting occurred, and, while she was in the act of catching hpld of him and shaking him with her hands, remarked, “You killed my husband,” to which defendant replied that the wife of the deceased had used, regarding his own wife, language of such a character as we will not here write down. Defendant was taken charge of as a prisoner by the deputy sheriff, who tied him, and ordered him to a seat in his buggy, to which he fastened the ends of the ropes with which defendant was tied.
On the way to the parish seat, a distance of about 15 miles from the place where the difliculty occurred, once, at least, defendant complained of the rope that held him around his wrists, and said it was too tightly tied, and offered $50 to have this rope loosened.
He afterwards asked the deputy to release him, and said he would pay him $150. On the refusal of the deputy, his words were, in substance, that he (the deputy) would be the next.
At a distance of about two miles from. Franklin, the sheriff rode down and took charge of the prisoner. The deputy then returned to Patterson. After some little time the defendant asked the sheriff to loosen the *467rope around Ms wrist. TMs the sheriff declined to do; saying to him that they had only a short distance to go, and that he would he untied at the jail. When he was untied the imprint of the rope was upon his arms, and his arms were red and swollen. In a few days the swelling disappeared entirely.
The foregoing are the salient facts.
First. The grounds of the defense are that the confessions were not admissible, as they have not been voluntarily made.
Second. That the testimony admitted as part of the res gestre was not part of the res gestse.
Third. That no sufficient- basis was laid to admit dying declarations.
These are the main grounds. Other points are presented as incidental to and connected with the issues, which we will take up in due order in deciding them.
The objections to the evidence of confessions are before us, as set forth in several bills of exceptions.
It may he proper to remark in this place that the confession was not a full confession. It was made only as to one fact of shooting the deceased. In other words, the defendant did not admit his guilt. He only confessed that he fired the fatal shot. It still remained for the court and jury to examine all other facts to find out whether the accused was guilty. It is unimportant, as relates to the point to be decided, whether the confession was full or partial.
At the outset we desire to state that we have no dissent to express from the text of decisions quoted by the defense. Unquestionably the voluntary declaration of a person charged with crime should only be received after the court has exercised due vigilance and watchfulness in the matter of laying the foundation for its admissibility. It must be shown that it was voluntarily made. It loses all value as evidence when it appears that the confession was made under the influence of threats, hope, or fear. From this point of view, we have not found that the voluntary statement of defendant was inadmissible, and the following are our reasons:
The prosecuting attorneys called a witness (Hausmann), and proved by him that he had not threatened the deceased at the time that he made a voluntary statement to him (the witness), and that the declaration was voluntary and without promise of anything.
The complaint of the defense on this point is that the prosecuting attorneys did not attempt to prove that no one else had assaulted the defendant hr that no one else intimidated him at the time his confession was made; that, if this witness and another (Gooch) who testified upon the subject had been properly examined by the state as witnesses for the state, the defense would have been placed on its guard against facts which were developed after their testimony had been received.
The facts were that the wife of the deceased, Mrs. Rosheger, attacked and fought the defendant, as before mentioned, while he (defendant) was held by one Hausmann. Although these facts were not brought out by the state in examining in chief, there was no irregularity committed by the prosecution, for the witnesses were asked the usual question. to lay the foundation to admit their testimony.
The defense had the right to question these witnesses regarding all the circumstances in reference to the time, place, and all relating to the alleged confession, and to bring such other facts as it deemed proper in order to attack the foundation as laid. State v. Miller, 42 La. Ann. 1186, 8 South. 309, 21 Am. St. Rep. 418.
This was not done at first. Afterward it developed that this woman, Rosheger, had attacked defendant.
Even if illegal testimony had been admitted after the court’s ruling had been made that sufficient foundation had been laid, the *469defense was not at the mercy of illegal testimony, if it had come to light, after the testimony had been admitted, that it was entirely illegal because of the intimidation of the defendant — a fact unknown to the court when the ruling was made. Of course, it would then have devolved upon the trial judge to reverse his ruling, and to have had the illegal testimony erased.
Our study of the points of this cause has not resulted in convincing us that there was such intimidation practiced on the part of this wife as rendered the testimony inadmissible. Alhough her conduct was improper in the extreme — to a degree that we will not stop to characterize — did it amount to intimidation? The answer of the defendant to her question does not show that he was intimidated. The witness Hausmann was not holding him to afford this woman the opportunity to assault the defendant. She was an angry woman — frantic, wild — whose irrational acts were not even repulsed by the defendant, as we understand.
As we appreciate the facts, the question and answer objected to had all been prior to the violent assault of which this woman was guilty — at any rate, at the beginning of the assault, which it does not seem to us was sufficient to intimidate a man who was determined enough to meet another and engage in the fight which he did, and to continue the struggling as was done. The district judge states officially that self-defense was set up by defendant. The doctrine of self-defense was dwelt upon at large in the charge, and the record shows that this was one of the issues. The error, in view of this issue, is, to say the least, not manifest. The following is the statement in the bill of exception: “The wife of the man he shot rushed up to him and said, ‘You killed my husband.’ He replied, ‘You called my wife a —--•.’ ” She then commenced to fight. The confession was admissible.
The defendant again made admissions on his way from the place of the difficulty to the jail, by offering an amount to the deputy sheriff to turn him loose. Such offers afford ground of presumption' against an accused, and are admissible in evidence.
The question arises, why should an offer have been made, such as was made, if the 'defendant was innocent? This is the rule of law which usually obtains in such cases. The fact that he was tied at the time has no significance in itself. He may have been tied too tight by the deputy — an act possibly deserving censure — and yet that would not justify him to use the words he did.
It gave rise to an admissible inference of a desire to evade justice. Wharton, Criminal Ev. § 750.
In the first bill of exception, as well as in other bills here and there, defendant raises the objection that the witnesses who swore to a confession did not sufficiently particularize ; that they did not remember with sufficient precision what was said by the defendant. This is also referred to and argued with great earnestness in defendant’s brief. We do not think, in order that evidence of the confession may be admissible, that it is necessary for the witness to repeat the conversation with severe exactness. It is suffi•cient if the witness repeats, in the main, all that was said, and if it be evident to the trial judge that no prejudice is done by a slip of the memory here and there in regard to what was said.
“It is enough, to be admissible, that the substance of the confession was given.” State v. Desroches, 48 La. Ann. 428, 19 South. 250.
This brings us to the dying declaration, and to a consideration whether or not it was • admissible.
The statement of the áccused, while the fight was going on, that he was ■ mortally shot, was, in our view, part of the res gestse. The parties were on the ground, scuffling. The fatal shot had been fired at the beginning of the fight and scuffle. A- statement *471made then by the wounded man was part of the res gestae. It was immediately connected with and incidental to the difficulty.
“Though a fact be passed, if it continues to exert a direct influence on the mind of the speaker — if the statement can be fairly taken to be not so much the narrative result of thought as the natural and inevitable outcome of tlae circumstances under which it is uttered — it is, in general, admissible.” Best on Evidence, p. 469.
In this instance it was not after the fight, as the fight was still on when the declaration was made by the deceased. If not admissible as part of the res gestee, it was certainly admissible as a dying declaration, for the wounded man at the same time, and in the same sentence, said, in substance, that he was a dying man.
In another bill of exception further objection is raised to the testimony of two witnesses (Gooch and Hausmann) who were present toward the end of the difficulty, and who took part in arresting the defendant. The judge says in regard to the testimony of these two witnesses that the statement heard by the witness Gooch was the same statement heard by the witness Hausmann, except that they did not agree as to the time which elapsed between the shooting and the time at which the defendant made the statement of having shot the deceased. One (Gooch) says it was between five and ten minutes, while Hausmann says it was only three minutes. Gooch swears that after he had, with others, separated the parties, they took the deceased into his house and put him on or in the bed, and he (Gooch) returned to the sidewalk and saw the defendant about to move off. Hausmann caught hold of him. It was then that defendant made the statement before mentioned in answer to Mrs. Rosheger, as before mentioned. The court a qua ruled that on this showing the answer was admissible, both as voluntary declaration and as part of the res gestae. We are of the opinion that, if this declaration was not part of the res gestae, it was a voluntary declaration. We consider it to have been a voluntary declaration of the accused, for reasons before stated, that he was not intimidated by Mrs. Rosheger when he made the declaration.
This brings us to the subject of the dying declaration, which presents a serious question for decision.
The objection of the defendant to the admissibility of the dying declaration was, substantially, that the deceased was not under the sense of impending dissolution at the time; that the declaration, as stated by the witness, was not sufficiently full to be admitted as evidence. And again, that the deceased had made a dying declaration before the justice of the peace, which was the proper declaration in case the testimony is admissible at all.
The judge says, as relates to this dying declaration, that the deceased made two statements to the witness Gooch — one, when the deceased was prone on the banquette, struggling with the defendant; the second, after the deceased had been taken to his home and was lying on his bed, where he declared:
“Mr. Gooch, I am shot. Prank shot me, and I am going to die. I am shot wher.e the president was” (referring to President McKinley).
The judge says a statement made under such circumstances, “when the person wounded is under the express belief that he is about to face his Maker, is unquestionably admissible as a dying declaration.”
We have the positive statement of the accused, repeated at short intervals of time, that he expected to die. Declarations made under solemn sense of impending dissolution, as we infer was made in.this instance, we infer, are admissible.
But the contention of the defense further is that the deceased had made a written dying declaration and that it alone, if any was admissible, was admissible. The dying declaration reduced to writing by the justice of the *473peace, and which was admitted in evidence, was made some time afterward; i. e., a few hours after the visit of the physician who attended the deceased.
He made several of these declarations. The one to the witness Gooch was made at a time anterior to that made to the justice of the peace. They were admissible. The form of the declaration is immaterial.
We do not consider the written document in the nature of primary evidence which had the effect of excluding all other evidence upon the subject. It did not have the effect of excluding all verbal evidence. Wharton’s Criminal Evidence, p. 295.
We think it was sufficiently shown that the deceased thought that he was in a dying condition.
There is, so to speak, a dent in the testimony — a very serious objection as relates to the dying declaration, which arrests attention and causes a moment’s hesitation. The physician called upon the patient a short time after he had been wounded. The deceased had, as we have already stated, made the declarations which the trial court held were dying declarations.
We infer that the physician gave very little encouragement to his patient, and that the patient was not made hopeful of life, by the presence and utterances of his physician.
It is true that the physician suggested to him that a surgical operation was necessary, and that he must repair to the city, to which the deceased consented. It does not follow, because a physician makes suggestions, that necessarily to the patient was given hope that he would live. Nor does it appear that deceased, despite his declaration that he would die, thought during or after the physician’s visit that he could live. There are many who take the physician’s advice from intuition; others, as a matter of principle, not wishing to surrender life unless all the remedies which the physician’s skill offers have been tided. During the whole time the patient may'still be quite convinced that for him there is no hope. The deceased in this case at all times said, in substance, that there was no hope.
We would not be fully justified in arriving at the conclusion that he must have had some hope, despite his repeated declaration to the contrary.
We are brought to the consideration of another bill of exception, which we will pass with the statement that, in our view, although the witness may not have stated the whole dying declaration when he was examined by the court apart from the jury to see whether it was admissible, he (the witness) may add words uttered by the deceased when he afterwards testified before the jury, although he (this witness) 'may not have made the statement of the additional declaration to the court. This witness had said to the trial judge, when he was examined separate and apart from the jury; that the deceased declared to him that he was shot by the defendant, but he did not add that which he afterwards said to the jury, “Frank [meaning the defendant] shot me for nothing.” This testimony was admissible, and would have been properly admitted whether stated to the judge or not. The witness was under oath to state the whole declaration, which he did. We do not think that there was ground to exclude the testimony. The objection made went to the effect to be given to the testimony, and not to its admissibility.
We will pass the next bill of exception with the comment that it relates to threats by the accused made shortly before the homicide. It was admissible.
The authorities are that such testimony is. admissible for the purpose stated. They are admitted because from them guilt may be inferred. Wharton's Criminal Evidence, § 756.
Regarding another bill of exception, we think it is disposed of by the statement that there was no necessity to be an expert in *475order to testify to the jury that the deceased, a few hours before his death, pointed to the locus of his suffering and made some unimportant statement. The evidence had no bearing. It could not in the least prejudice the accused, and therefore we pass to the next bill of exception.
Mr. Penny, one of the witnesses, was asked to detail a statement made by Rosheger, the deceased, during the time that he (the deceased) was struggling with the accused. The statement as made was objected to by counsel for the defense on the ground that the witness did not remember all that was said, and as “a witness could not remember he should not be permitted to testify.”
This objection was overruled by the court. Repeated decisions hold that the substance of the confession is admissible. Union Wood Preserving Co. v. Bell, 29 La. Ann. 14.
Wharton’s Criminal Evidence, § 688: Nor is it required to swear to the very words.
And again: A confession is not to be excluded because the witness does not remember all the confession. State v. True, 88 N. C. 630.
Upon these grounds, we have not found that defendant had good cause to complain.
With reference to the testimony of the brother of the deceased to which objection is urged, we think that those objections are disposed of by our rulings on questions already considered. We will add further that the brother testified that the deceased was conscious of the impending death at the time the statement was made to him as to who shot him, which was admitted and went before the jury. We think it sufficient foundation laid for the admissibility of this testimony. It was a mere repetition of wbat had been said to other witnesses in the case, and all going to show that the deceased was under the sense of impending dissolution, according to his statement, and, he was so near death, two days afterwards he breathed for the last time.
With reference to the dying declaration made before the justice of the peace, we think it was not amenable to the objection directed against it by the defendant. This officer exercised some discretion, and wrote down only such statement as had any bearing upon the statement that deceased had been shot by the accused.
It is stated positively in this declaration that he (the deceased) said that he expected to die, and every material fact was written down.
The defense requested the trial judge to specially charge the jury as follows:
“I charge you that the fact that a man’s being armed with a deadly weapon, though he may be the aggressor in a difficulty, amounts to nothing, unless he provides himself with a weapon with a view of using it, if necessary, in overcoming his adversary. The fact as to whether or not he did so provide himself with the weapon is a fact for the jury, and the burden of establishing that fact is upon the state.”
The trial judge refused to deliver this charge as written. It was amended, and, as amended, read to the jury. It read as follows:
“I charge you that the fact of a man being armed with a deadly weapon, though he may be the aggressor in a difficulty, amounts to nothing, unless he provides himself with a weapon with a view of using it, if necessary, in overcoming his adversary, and does not use it by first making the attack himself. The fact as to whether or not he did so provide himself with a weapon is a fact for the jury, and the burden of establishing that fact is upon the state.”
With reference to the burden of proof, there was no special difference between the defense and the state. With reference to carrying the deadly weapon, and the inference to be drawn therefrom under certain circumstances, we have not found that the amendment was error. • The defendant, it must be borne in mind, was charged with murder, and found guilty of manslaughter.
In view of the verdict, we do not infer that there was error in the instruction of the court.
We infer that the facts of the case, as a *477matter of law, justified the trial judge in adding the words, “provided he does not use the weapon by first making the attack himself,” and from that point of view, we are constrained to decline interfering with the verdict.
In one of the bills of exception^of the defense sought to have it charged by the trial judge that (we follow the special charge requested) it must be borne in mind by the jury that the accused has not the power of cross-examination — a power essential to the eliciting of all the truth as the obligation of an oath —and therefore the accused is entitled to every allowance and benefit that he may have lost by the absence of the opportunity of more full investigation by means of cross-examination. ■
The trial judge states that he refused to thus charge because he had charged the jury fully on that point in his general charge.
We return to the general charge, and find that, while not as full as the special charge requested, yet the jury’s attention was, in the main, directed to the fact that the accused did not have the opportunity of cross-examination, and to other facts referred to in the requested charge.
With reference to the verdict and objection thereto, it appears that the verdict returned was not legally formed, and it remained with the court to direct the jury to return to their room of deliberation, and to return a verdict in legal form. In making their first return, which was not in legal form, as just stated, they recommended the defendant to the mercy of the court. In the second, they did not choose to add this recommendation. They were not instructed by the court regarding recommendation to mercy.
Instruction had been given by the judge in the first charge, and there was really no necessity for repetition when the jury were ordered to return to their deliberation room. The court was made aware that the jury desired to recommend the defendant to mercy, and this was sufficient. Under the circumstances, the verdict is not vitiated by not having inserted the recommendation to mercy as part of the verdict.
On the application for a new trial, complaint is directed against ope of the jurors as having entertained and shown feeling unfriendly to the accused. It was attempted to show this alleged feeling of the juror by another juror. It is well settled that jurors cannot impeach their testimony upon grounds such as here alleged. The evidence of this juror was properly excluded.
While the defendant was vigorously prosecuted, on the other hand the defense was equally as alert in availing itself of every possible ground of defense. We find no ground upon which to extend relief to this unfortunate defendant. The jury has found him guilty. The solemn duty remains for us to affirm the verdict.
The sentence and verdict appealed from are affirmed.'*