The record discloses that three Chinamen, known as George Wah, N. Wing, and Charles Yee Hee, conducted a restaurant in the Overland Hotel at Carlin, Elko County, Nevada, and had in their employ one Chin Gim as night waiter. On the night of January 5, 1924, Charles Yee Hee was on duty in the restaurant as cook and Chin Gim as waiter. About the hour of 5:45 a.m. of January 6, 1924, Charles Yee Hee and Chin Gim were conversing at the lunch counter in the restaurant when Charles Yee Hee answered a call bell from one of the boxes or booths therein and was shot in the left breast by some person unknown. The wound was unquestionably mortal. The danger of such a wound as that inflicted, together with the physical condition of Charles Yee Hee, aside from any exclamations made by him immediately after he was shot, was probably sufficient under the circumstances to admit his declarations in evidence under the rule of dying declarations.
The principal controversy in the case was as to who committed the crime. The homicide occurred on the inside of the booth situate at a door leading out into the rear of the premises. The deceased made no declarations as to the circumstances attending the shooting, and when the night waiter, Chin Gim, asked the *Page 368 deceased who shot him he made no reply, and continued to exclaim that he had been shot, calling for help, and ejaculating in a loud voice in the Chinese language that he was going to die. The night waiter was the first to give the alarm of the shooting. The first person to appear on the scene after the alarm was given was one W.H. Robertson, proprietor of the hotel, whose testimony was, in substance, that when he came into the restaurant Charles Yee Hee was standing behind the lunch counter, leaning over, and he said to the witness that he had been shot. The witness asked, "Who shot you?" and he replied that he did not know. The witness then armed himself and made a search of the premises, and on his return to the restaurant again asked Charles Yee Hee who shot him, and he said that it was a tall man with a mackinaw on. The witness told Yee Hee that he was dying, and suggested to Chin Gim that he be taken to a bed. He was led to the booth where he was shot, and the night waiter went to the room of George Wah and informed him of the shooting. He also went to the room of Yee Hee's son, known as Yee Get, and told him of the shooting. The son, after conversing with the night waiter in Chinese, went to the booth, and, while alone with his father, asked who shot him and he replied that Harry Hunter shot him. Subsequently George Wah went to the bedside of Yee Hee and conversed with him alone and asked who shot him, and he replied that Harry Hunter shot him, the carpenter or builder. Subsequently the witness W.H. Robertson came into the booth, and in the presence of Chin Gim and Yee Get again asked Yee Hee, "Who Shot You?" and he said, "I think Harry" or "Hallie," trying to say "Harry." This was the last expression — in fact, the last words uttered by Yee Hee.
The record discloses that the only tangible evidence of the guilt of the defendant was the so-called dying declarations of Yee Hee, and the question is whether these declarations, standing together, sufficiently identify the accused, as a matter of law, to be the person who committed the crime. *Page 369
What constitutes a dying declaration per se is a question of law for the court to decide; likewise the judge must determine whether the declaration itself is one of fact, and therefore admissible, or whether it is one of mental impression, opinion, or conclusion, and therefore inadmissible. The judge has to deal with the matter as a preliminary question of fact. 1 Wharton's Criminal Ev. (10th ed.), sec. 296b.
While the deceased made no declaration as to the conditions or circumstances surrounding the shooting, there is evidence in the record tending to show that it was physically impossible for the deceased to have known who shot him. The booth in which he was shot had an electric light in it, but there is no testimony to show that the light was turned on, and even if it had been the room would have been dimly lighted. The evidence further tends to show that the person who fired the shot was concealed behind curtains suspended about the entrance to the booth.
Conceding that responses made to direct questions put to the deceased as to who shot him are admissible as dying declarations in the absence of a statute, the proof shows that the Chinese witnesses who asked the deceased who shot him were suspicious that Harry Hunter was the guilty party, because of threats he had made to kill Charlie Yee Hee about ten days before the homicide, and, further, one expression repeatedly used by the deceased in the presence of Chin Gim immediately after he was shot, "I knew this was going to come," seems to have created the impression that this expression of the deceased was inspired by the suspicion that Harry Hunter was the person who shot him.
I concede that the weight to be attached to dying declarations as evidence is for the jury to determine, and, if there is a conflict in the declarations, the question is one of fact for the jury to determine. In this instance the deceased stated to his son and to his partner in business as a fact that it was Harry Hunter who shot him. These persons were naturally eager to know who committed the crime, and entertained a suspicion that *Page 370 Hunter was the guilty party. The deceased's declaration that he thought it was Harry Hunter who shot him, made to a disinterested witness, and it being practically his dying words, I am of opinion that the last dying statement of the deceased that he thought it was Harry Hunter who shot him was the expression of his opinion or belief not based on any facts. It is indispensable that the dying declarations to be admissible should consist solely of facts, and not of conclusions, mental expressions, or opinions. Underhill, Criminal Ev. (2d ed.), sec. 108.
The atmospheric conditions surrounding the declarations and the last statement of the deceased in life that he thought it was Harry Hunter who shot him are sufficient to warrant the reversal of the judgment and to entitle the defendant to a new trial. I therefore dissent from the opinion of the majority in the affirmance of the judgment.