On Rehearing.
(June 30, 1904.)
PROVOSTY, J.After a rehearing had been granted in this case, the court, through the Chief Justice, handed down for the guidance of counsel the following:
“The court indicates the lines along which specially it would be pleased to hear argument in this case:
“First. AVhether or not the asserted remarks of one of the jurors, said to have been overheard by the deputy sheriff, were prejudicial to the accused, to the extent rendering; it legal to set aside the verdict, and all questions relating to the asserted remark.
“Second. Whether or not the confession made by the accused while held by some one, and while the wife of the deceased was acting as the testimony. discloses she was, should have been excluded as not being voluntary.
“Third. AVhether or not the deceased had hópe of recovery when he made his dying declarations, and whether the dying declarations should be excluded.
“Fourth. Whether the testimony of Mrs. Roshoger, wife of the deceased, should have been excluded, and whether the grounds set *479forth in the bill of exception No. 14 were sufficient to exclude her testimony.”
The case has been reargued along these lines, and additional briefs have been submitted.
On the first of these grounds the attention of the court has been called to the fact that it is not stated or attempted to be proved by the defendant that the knowledge of the misconduct or disqualification of the juror did not come to him before verdict. So far as the court is informed, the defendant may have known of this irregularity before verdict. If so, it was not ground for new trial. And the burden was on the defendant both “to aver and show affirmatively that both he and his counsel were ignorant of the misconduct charged until after the trial.” 12 Ency. P. & P. 558; 17 A. & E. Ency. of L. 1206; State v. Dorsey, 40 La. Ann. 739-743, 5 South. 26; Prof. Jury Trial, § 194.
We pass to the second ground, namely:
“Whether or not the confession made by the accused while held by some one, and while the wife of the deceased was acting as the testimony discloses she was, should have been excluded, as not being voluntary.”
The facts are these: The fatal encounter took place in front of the shop of Rosheger, the deceased, on the banquette. The two men scuffled and fought, and fell together, and continued fighting on the ground, and the fatal shot was fired during the scuffle. The first person to reach the combatants was the wife of the deceased and one August Palumbo, both of whom came out of the shop. The next person to reach the scene was T. B. Gooclr. The scuffling was still going on; the combatants being down on the banquette, fighting and struggling. A number of persons came up. Gooch kicked the pistol out of the hand of Gianfala, and he and the witness Penny separated the two men. Penny and Gooch assisted Rosheger into his shop, and then into his sleeping room, back of the shop, and laid him on his bed. They then returned to the gallery. By that time quite a crowd — “a big crowd” — had gathered; and one Hausmann, who had grabbed Gianfala, was holding him. At that moment Mrs. Rosheger, the wife of the deceased, who had gone to the telephone office and returned, jumped upon Gianfala, in an access of fury, “and clawed him and bit him and tore his clothes”; and it was while this was going on that the statement sought to be introduced as a confession was made, namely, Mrs. Rosheger said to Gianfala, “You killed my husband;” and he answered, “You called my wife a s-of a b-.”
This statement of the accused was admitted by the judge a quo on the double ground that it was res gestee and a confession. It was admissible on neither ground.
It was not admissible as res gestae, because Gianfala had hdd time to regain his composure sufficiently to get up a story to excuse or palliate his act. His victim had been taken inside the house, and he had been left outside on the banquette with the crowd that had gathered, and sufficient time had elapsed for Penny and Gooch to have assisted the wounded man onto the gallery and across the shop and into his sleeping room, and laid him upon his bed, and to have retraced their steps to the gallery. How long' this had taken, is not known, as no one kept the time, but Mrs. Rosheger had had time to go’ to the telephone office and return. Gianfala had had time to collect himself sufficiently to notice some cartridges of his on the ground, and to try to pick them up. This action presupposes some degree of deliberation, and is of itself sufficient to show that in what he did or said thereafter he was not necessarily the mere passive instrument or mouthpiece through which acted or spoke the excitement of the scene he had just been through, but may well have been at himself, and bethinking him of what was best to be done or said in the predicament in which he found himself. The probability oí the statement having been a concoction is increased by the fact *481that Mrs. Rosheger denies its truth — asserts positively that she never made use of the vile expression thus attributed to her.
Moreover, the statement was provoked by the accusation of the wife, “You killed my husband.” It was made in response to that, accusation, and by way of justification against it. When it was made a new combat had begun, which necessarily had held the effect of drawing the thoughts of Gianfala away from the past transaction and concentrating them upon the immediate crisis. He was being furiously belabored by the woman. Whether the description given of her by the counsel for the state (a frail woman) or that by counsel for the defense (a virago) fit her best is immaterial, since, however frail she was, her assault was enough to attract and absorb for the time being the attention of the subject of it. The mere arrest of a man has a sobering effect upon him — casts a damper upon his excitement. Now, if, in addition, while he is in custody, an infuriated woman fall upon him tooth and nail, it is hardly to be supposed that he will remain so unmindful of the actualities of the present as to continue to be the mere passive instrument or mouthpiece of the excitement of the past event. And in order that anything said after an event should be considered part of it, Within the meaning of the law of res gestae, the speaker must be supposed to have been prompted to speak solely by the excitement of the event. In other words, it must have been the event speaking through him. State v. Charles, 36 South. 29, 111 La. 933; 1 Greenleaf, Ev. § 110; Whart. Cr. Ev. 262.
To illustrate: Suppose that, instead of the statement in question, Gianfala had said: “I shot your husband because I saw him make a movement to draw a weapon upon me, and I thought he was going to shoot me. I only shot in order to be ahead of him.” And suppose that, instead of the state, it was Gianfala who was contending that words uttered under the circumstances in question were res gestae.' Would it not be answered to him at once that the story was a concoction? Assuredly it would. And yet, while defending himself as best he could from the attack of this infuriated woman, he might well have made just such- a statement.
Nor was this statement admissible as a confession. It was made while Gianfala was being furiously assaulted as he was being held, and this in the presence of a more or less excited crowd. He a foreigner in their midst, probably understanding their language but imperfectly. Under these circumstances, he may well have been in fear, and may well have hoped to mitigate his act, and allay whatever animosity there might be against him in the crowd by bringing in his wife, and claiming that in what he had done he had acted in defense of her good name. Here is fully made out, we think, one of the main grounds of rejecting confessions — the danger of their not'being true, and of their having, been induced by hope or fear. 1 Greenleaf, § 214. “The admission of a confession,” says Mr. Rice, in his work on Crim. Ev. vol. 3, § 311, quoting the Supreme Court of Tennessee, “is made to depend upon its being free of the suspicion that it was obtained py any threats or severity or promise of favor, or of any influence, even the minutest.”
Here, we think, there was a strong influence operating upon this accused, situated as he was, to say something, whether true or false, to excuse or palliate his act. We know as a fact, from the testimony of Mrs. Rosheger, that this story was a fabrication; and we cannot escape the very strong suspicion that the -Italian, as he was being thus held and assaulted in the presence of an unsympathetic crowd, was prompted to make this so-called confession by the exigency of his situation.
The next matter to be considered is that of the dying declarations. We think these declarations were not made under the sense *483of impending dissolution, and were therefore inadmissible. True, the wounded man said, and kept repeating, that he was going to die, but his actions belied his words. When the physician arrived, which was a few minutes after the infliction of the wound, the wounded man caught his hand, and told him he was going to die, and asked him what he thought about it. This shows he had not given up all hope. Had he given up all hope, the physician would not have been to him any more than an ordinary person. He had not grasped in this manner the hand of any person that had approached him, but the physician represented to him the hope of life, and he grasped his hand, and asked him eagerly what he thought of the case. This indicates, we think, that he still had some hope. And the physician did not tell him there was absolutely no hope, but, on the contrary, that there would be a chance for him if he went to New Orleans and had himself operated on. And he decided at once to take that ch'ance, though it necessitated his leaving wife and children behind and going to the Charity Hospital of a distant city. This shows that he was not entirely without hope. His hope may not have been very strong, but he had some hope; otherwise he would have remained quietly at his home, and thought of nothing but of preparation for his end. After the physician had told him of this chance of recovery, he no longer spoke, to him of dying, but only said that he thought he was mortally hurt, and that he did not think he would ever get well; that he had little hope. To others he said he thought he would die, and notably to the justice of the peace who came to take his dying declaration. But this did not prevent his expediting his preparations to set out on his journey to the Charity Hospital of the city of New Orleans to take advantage of his one chance of recovery.
In the case of State v. Molisse, 36 La. Ann. 920, this court said;
“His assertion that he believed in his approaching death is not conclusive, and is not the exclusive mode of proving the real condition of his mind.”
In the case of State v. Newhouse, 39 La, Ann. 864, 2 South. 799, this court said:
“The true test is evidence showing to the satisfaction of the legal mind that the party making the declaration believed at the time that he was soon to die. The existence of such a consciousness in the mind of the declarant may be shown as effectively by his acts and the circumstances which surround him as by expressions or impressions which he may utter.”
Here the conduct of the wounded man. speaking louder than his words, proclaims that he had not given up all hope, and his having given up all hope was a condition precedent to the admissibility of the evidence.
“According to the clear preponderance of authority, if the deceased had the slightest hope of recovery when the declarations were made, they are inadmissible.” A. & E. Ency. vol. 10 (2d Ed.) p. 366.
“Any hope of recovery, however slight, existing in the mind at the time of the declarations made, will render the declarations inadmissible.” 3 Russell on Crimes (9th Am. Ed.) 252.
“Dying declarations are not admissible in evidence if the declarant had the slightest hope of recovery, although he dies within an hour afterwards.” A. & E. Ency. of L. (1st Ed.) vol. 6, p. 115, citing People v. Hodgdon, 55 Cal. 72, 36 Am. Rep. 30.
In R. v. Hayward, 6 C. & P. 157, Tindal, C. J., observed that:
“Any" hope of recovery, however slight, existing in the mind of the deceased at the time of the declaration being made, would undoubtedly render the evidence of such declarations inadmissible.”
In Rex v. Spilsbury, 7 C. & P, 187, 32 E. C. L. R. 487, Coleridge, J., said:
“It is an extremely painful matter for me to decide upon, but when I consider that this species of proof is an anomaly, and contrary to all the rules of evidence, and that if received it would have the greatest weight with the jury, I think I ought not to receive the evidence, unless I feel fully convinced that the deceased was in such a state as to render the evidence clearly admissible. It appears from the evidence that the deceased said he thought he should not recover, as he was very ill. Now, people often make use of expressions of that kind who have no conviction that their *485death is near approaching. If the deceased in this case had felt that his end was drawing very near, and that he had no hope of recovering^ I should expect him to be saying something of his affairs, and of who was to have his property, or giving some directions as to his funeral, or as to where he would be buried, or that he would have used expressions to his widow purporting that they were soon to be separated by death, or that he would have taken leave of his friends and relations in a way that showed he was convinced that his death was at hand. As nothing of this sort appears, I think there is not sufficient proof that he was without any hope of recovery, and that I, therefore, ought to reject the evidence.”
Rice on Ev., vol. 3, § 335, has the following:
“The doctrine was declared and defined with succinct completeness in the carefully considered case of Reg. v. Jenkins, L. R. 1 C. C. 191. In the following quotation the Chief Baron says: ‘The question is whether this declaration, as it now stands, was admissible in evidence. The result of the decisions is that there must be an unqualified belief in the nearness of death — a belief, without hope, that the declarant is about to die. If we look at reported cases, and at the language of learned judges, we find that one has used this expression, “Every hope of this world gone;” another, “Settled, hopeless expectation of death;” another, “Any hope of recovery, however slight, renders the evidence of such declaration inadmissible.” We, as judges, must be perfectly satisfied, beyond any reasonable doubt, that there was no hope of avoiding death.’ ”
In Rex v. Thomas, 1 Cox, C. C. 52, Justice Coleridge said:
“The sense of danger by the deceased, I think, was not of such a character as to preclude some slight expectation that she might recover; and, therefore, on this ground I do not think the evidence was admissible.”
In Errington’s Case, 2 Lew. 148, Patteson, J., said:
“I have always considered that, in order to a statement being received as a dying declaration, it must be shown that, at the time the deceased made it, not merely that he considered himself in danger, but that he was without hope of recovery. It does not appear to me that the words, ‘I think myself in danger,’ necessarily exclude the suspicion that the deceased might have nevertheless entertained some hope.”
In Matherly v. Com. (Ky.) 19 S. W. 977, it was said that the fact that the deceased asked to have a physician sent for indicates clearly that he entertained a hope of living, although he stated at the time Jhat he was going to die.
In Rex v; Fagent, 7 C. & P. 238, 32 E. C. L. 501, where the declarant expressed an opinion that she should not recover, and at a subsequent part of the same day asked a person whether he thought she would “rise again,” it was held that this showed such a hope of recovery as rendered her declaration inadmissible.
In the present case the wounded man did not ask for a physician, but, when the physician did come, he received him in the manner we have stated above, and he asked him what his opinion was; and, upon the physician giving out a hope on the condition of his making a voyage to a distant city, he accepted at once, and acted upon the suggestion.
Under these circumstances, we think that the wounded man had some hope of recovery, and that his declaration should have been excluded.
The last ground is as to the reception of the testimony of Mrs. Rosheger touching a conversation she had with her husband, a few hours before the shooting. If, as stated by the learned judge a quo, the defendant was the first to go into this evidence, then the further testimony offered by the state on the subject was properly admitted; but otherwise the evidence was inadmissible. The statements of the husband thus testified to were hearsay, and those of the wife irrelevant.
It is therefore ordered, adjudged, and decreed that the judgment and verdict appealed from be set aside, and that the case be remanded to be proceeded with according to law.
BREAUX, C. J., adheres to the opinion heretofore handed down.