[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 360 Before dying declaration can be admitted it must be shown that it was made in extremis. State v. Roberts, 28 Nev. 270; People v. Hodgdon, 55 Cal. 72. Declarant must be without hope of recovery and in articulo mortis. Bilton v. Territory, 99 P. 163. Declarations must relate to facts and not matters of opinion. People v. Taylor, 59 Cal. 640. "I think that this man (the defendant) shot me" is inadmissible. People v. Wasson, 4 P. 555.
Rev. Laws, 7165, provides that none but statutory definition of reasonable doubt shall be given. Court in defining "abiding conviction" varied statutory definition. In State v. Potts,20 Nev. 389, this court said: "It would be difficult to select words that would define their meaning better than is set forth in the statute and we would recommend to the judges that they follow the exact language of the statute and not attempt any further explanation." Cited in State v. Vaughn, 22 Nev. 285.
Statement of special prosecutor that "you can see by the expression on the faces of every decent woman in the audience that they are against these people" was prejudicial to defendant as attempt to bring outside influence upon jury to lead them to believe public sentiment demanded conviction. Withdrawal of improper testimony or argument should be so emphatic as to be unequivocal repudiation of it by court. State v. Rader, 124 P. 195. Public sentiment should not be expressed in presence of jury. People v. Fleming, 136 P. 291. Only safe rule in case of such misconduct is to grant new trial, unless it is clear verdict was not affected thereby. People v. Ah Len, 28 P. 286. In People v. *Page 361 Hail, 143 P. 803, court reversed conviction for improper remarks of district attorney. Where prosecuting attorney is guilty of conduct calculated to arouse prejudice or passion, conviction should be set aside. Hager v. State, 133 P. 263; People v. Fielding, 46 L.R.A. 641; State v. Rodriguez, 31 Nev. 342.
AT M.A. Diskin, Attorney-General; Thos. E. Powell, Deputy Attorney-General; W.T. Mathews, District Attorney, for the State: Affidavit on motion for new trial for newly discovered evidence must show due diligence prior to or during trial; must show what was done to make discovery and not state conclusion that evidence could not be discovered. Robinson M. Co. v. Riepe,37 Nev. 27; 20 R.C.L. 397. Affidavit must show facts would be material. Newly discovered evidence merely tending to discredit witness is not sufficient. 20 R.C.L. 294; Whise v. Whise, 36 Nev. 16; Robinson v. Riepe, supra.
Dying man may seek relief from agony if only for short while. Sending for doctor does not indicate hope of recovery. Milton v. State, 32 So. 653; State v. Kuhn, 90 N.W. 733. If court is satisfied of state of mind of deceased at time of making declaration, it is enough. State v. Roberts, 28 Nev. 350. Nature of wound and state of wounded person may be considered in passing on question. Underhill Crim. Ev. (3d ed.), sec. 173; Territory v. Eagle, 30 L.R.A. (N.S.) 391. Objection to dying declaration as being hearsay is not well taken. All evidence of dying declarations is hearsay. State v. Murphy, 9 Nev. 394. General objection to dying declaration should be overruled if any part is admissible. Lipscomb v. State, 23 So. 210; State v. Williams (Nev.), 220 P. 555.
Counsel for defendant made no objection at the time to court's giving definition of "abiding conviction." Defendant was not prejudiced thereby. Statutory definition of reasonable doubt was not changed. Two words only were explained to enable jury better to understand language used. *Page 362
Limits to which counsel may go in discussing evidence must be left to discretion of court. It is only where remarks are clearly prejudicial that instruction to disregard will not cure. Court, at time remark was made, instructed jury not to consider it. Prosecutor apologized to jury for any improper statements. Unwarranted statements are not sufficient to justify new trial where they are withdrawn or ordered stricken out. State v. Petty,32 Nev. 284; 46 L.R.A. 641.
OPINION The defendant was convicted of murder in the second degree. He has appealed from the judgment and from the order denying his motion for a new trial.
1. A preliminary question is presented for determination in the form of a motion to amend the record. In support of the motion affidavits are produced, and our attention is directed to the rules of this court. Rules 7 and 8 are the only ones which contemplate any action by this court pertaining to amendments to records. They go no further than to authorize the court to make such orders as may be necessary to make the transcript of the record conform to the record made in the lower court, and not to change the record of the lower court. This court has no power to alter or amend the record of the lower court. The motion is denied.
The appellant has assigned five errors as grounds for a reversal of the judgment.
Prior to the giving of the testimony in the presence of the jury the court heard the evidence to determine its qualification to show a dying declaration. For this purpose the testimony of six witnesses was taken and no objection was made to it upon either of the grounds now urged. The court was of the opinion that the testimony was sufficient to go to the jury, and so ruled. The first witness to testify before the jury was Chin Gim, who, having testified as to certain preliminaries, gave evidence to the effect that Charley Yee Hee, after *Page 363 responding to a call of the bell in the booth, came back into the room in which was the lunch counter, shouting: "Help! Help! Save my life! I have been shot; shot right through; I am about to die." He kept on saying: "Save me; get me help. I am about to die. I am shot through." This witness called for W.H. Robertson, proprietor of the hotel. Neither of them was then able to learn who did the shooting. The witness testified that the deceased "was suffering, so I helped him into the bedroom." This witness testified that while he, Mr. Robertson, and the son of the deceased were in the bedroom Mr. Robertson asked the deceased who shot him, whereupon the following objection was made by counsel for the defendant:
"We object, if the court please, on the ground the proper foundation has not been laid for any statement on the part of Charley Yee Hee. Whatever statement or declaration he may have made is hearsay; also it was not made in the presence of the defendant, or it has not been shown it was made in the presence of the defendant; also it has not been shown yet what question was asked him."
The objection having been overruled, the witness testified that the deceased stated that Harry Hunter shot him. He then gave the following evidence:
"Q. Was that all that was said?
Thereupon counsel interposed: "We understand that our objection goes to all this line of questions."
"The Court: It may be so understood, and the same ruling and exception.
"Q. What did he reply? A. Carpenter; Margie's man.
"Q. Were these words said by Charley Yee Hee? A. Yes.
"Q. Were they said in the Chinese language? A. That was in English."
2, 3. From a reading of the above objection, which is the one relied upon during the trial as going to all of the same line of evidence, it seems that no objection was interposed upon the ground that the deceased did not *Page 364 believe himself to be in extremis; hence this objection cannot be urged now. However, we think the evidence shows that the deceased believed himself to be in extremis.
4. Just what is meant by the objection that the testimony is hearsay we are somewhat at a loss to understand. Dying declarations are taken out of the hearsay class when one makes a statement while in extremis, believing himself so to be. The trial court was in a better position than are we to determine as to the condition of the deceased and whether he believed himself in extremis, but from a reading of the entire testimony it seems that there can be no doubt upon that point. He was suffering greatly, manifested great alarm, and was told he was going to die and did die within about a half hour. We do not think the court erred in admitting the evidence. We may say that counsel in their brief call our attention to some cases which hold that certain evidence is incompetent, but they go to a situation not presented by the objection made and ruled upon in the trial court, and hence will not be considered here.
It is also contended that the court erred in denying a motion for a new trial based upon the ground of newly discovered evidence. In support of the motion defendant relies upon an affidavit of John Kocas, who swore that on the morning of the shooting, and shortly prior thereto, he went into the Overland Hotel building, passed the lunch counter, into the kitchen, and out into the yard, and then to the window opening out into the back yard from the room which was then occupied by George Wah, one of the witnesses for the state; that on that morning a portion of a pane of glass was broken out of said window, and that he saw Wah lying in his bed in the room, and spoke to him, and passed to him $8 in exchange for some drugs which Wah passed out to him, and that this was one of the numerous occasions on which the same character of transaction had been conducted between them; that he then went back to his work at the depot and learned about an hour or an hour and a half later of the shooting of the deceased. *Page 365 He also swore that he had often seen in the possession of George Wah a large Colt revolver which he took for a .38 caliber on a large frame, and that he had seen such a revolver in his possession two or three weeks prior to the killing.
5-7. We cannot say that the court erred in denying the motion. The purpose of the testimony was to impeach George Wah, and, before we would be justified in reversing the judgment for this reason, it must appear that the trial court abused its discretion. We think there is no showing whatever leading to such a conclusion. The fact is, all that both swore to might have been true, except as to Wah's selling drugs. As pointed out in State v. Willberg, 45 Nev. 183, 200 P. 475, applications for a new trial, when the sole purpose of the newly discovered evidence relied upon is to impeach an adverse witness, are not looked upon with favor. Furthermore, Wah's selling of drugs is a collateral matter which could throw no light upon the issue before the court and could not be tried in this case, and it had no place in it. The court did not err in its ruling.
8. It is next contended that the court erred in giving an instruction which changed the one wherein the statutory definition of reasonable doubt was originally given. After the jury had retired to consider the case, it returned into the courtroom and requested the court to define the meaning of the term "abiding conviction" contained in the statutory instruction originally given by the court, whereupon the court gave the following:
"The words `abiding conviction,' as used in instruction No. 4 heretofore given you, mean such a settled and fixed opinion in your minds with reference to the truth of the charge that it will not admit of any other reasonable conclusion."
In this connection our attention is directed to section 7165, Revised Laws, which provides that no other definition of reasonable doubt shall be given by the court in its instruction than that provided for in section 7164, which was the one originally given. It is contended that the court, in defining "abiding conviction," violated *Page 366 section 7165. No contention is made that the words were erroneously defined. The contention is, to say the least, hypertechnical. One to the effect that an "i" is not dotted or a "t" is not crossed would not be more so. But can it be said that the court violated section 7165? We think not. It is not contended that the court gave any other definition of reasonable doubt than that given by the statute. All that the court did was to make clear the statutory definition. This is not in violation of the statute. No error was committed nor was any prejudice suffered by the defendant. The contention is utterly devoid of merit. Furthermore, it appears from the record that counsel for the defendant suggested the instruction be "given from some dictionary or some authority." It is not contended that the court did not comply with counsel's suggestion.
9, 10. It is also contended that prejudicial error was committed by special counsel for the state by certain remarks alleged to have been made in his argument. What was said does not appear from the bill of exceptions. They were not taken down and incorporated in the record. We find the following note in parenthesis:
"Objection made by counsel for defense to attention being called to the outside evidence and assigned as error."
After this note we find the following:
"Court: The expression of spectators' faces should not be considered as evidence in this case."
We then find the following statement by counsel for defendant:
"Without the evidence in the case it cannot be shown.
"Court: The objection is overruled. You may swear the officers to take charge of the jury."
From the appearance of the record the objections made by counsel were after the conclusion of the argument by special counsel, and not at the time the alleged objectionable matter was stated. If the remarks of counsel were based upon any evidence in the case, it is clear that they would have been proper, but, since the alleged remarks are not in the record, we cannot tell if the evidence justified such remarks. State v. McMahon, *Page 367 17 Nev. 365, 30 P. 1000. Furthermore, as a general rule, to entitle a defendant to have improper remarks of counsel considered on appeal, objections must be made to them at the time, and the court must be required to rule upon the objection, to admonish counsel, and instruct the jury. This was not done, so far as the record shows.
11. The remaining assigned error is that the verdict is contrary to the evidence. This court has repeatedly held that it will not reverse a verdict and judgment where there is substantial evidence to support it. State v. Buralli, 27 Nev. 41,71 P. 532. The killing is admitted, and there is ample evidence to sustain the verdict.
Judgment affirmed.