State v. Roberts

1. Homicide — Evidence—Dying Declarations — Sense of Impending Death. The sense oí impending death necessary to render a dying declaration admissible may be shown, not only by what the injured person said, but by his conduct and condition, and by the nature and extent o£ his wounds; and, if these show that the declaration was made without expectation of recovery, the declaration is admissible, though the declarant may not have said that he was without hope, or that he was going to die. 2. Same — Sufficiency of Predicate. In a prosecution for murder, it was shown as a predicate for the introduction of a dying declaration that deceased had been shot through the lungs and stomach the night before the declaration was made, and had said then, and several times afterwards, that he was going to die. The morning after the shooting a physician probed the wound and removed a quantity of blood, which enabled deceased to breathe more easily, so that he thanked the physician and said that he felt better, but still shook his head when it was intimated that there was hope of recovery. Held, that it sufficiently appeared that deceased was without hope of recovery, so that his written statement was admissible as a dying declaration. 3. Same — Evidence—Identification of Assailant by Deceased. In a prosecution ior murder, evidence that deceased, who had been shot by men who were at the time unknown to him, had on the next day, and while under such a sense of impending death as to render a dying declaration admissible, recognized defendants as the men who shot him, and picked them out from a number of other men, all of whom were strangers to deceased, was admissible. 4. Same — Admitted Pacts — Harmless Error. In a prosecution for murder committed by shooting deceased through the stomach, evidence that after the shooting deceased said to a companion that he was shot through the stomach was harmless, even if it was not so connected with the shooting as to be part of the res gestee. 5. Same. In a prosecution for murder, in which it was admitted that deceased had been robbed and murdered by some one, and the only defense was an alibi, evidence by a companion of deceased as to what he did after deceased was shot was harmless. 6. Criminal Law — Evidence of Independent Crime. In a prosecution for mhrder committed on a west-bound freight train at a point a short distance east of a certain station, defendants claimed that they had been at this station during all the evening and night of the murder, while the state claimed that defendants had left the station on an east-bound train, and had dismounted from it where it slowed to pass the westbound train, and had returned on the latter. The train schedule was such that, if defendants had left on the east-bound train, they could not have returned to the station in question, except on the west-bound train, on which the murder was committed; and it was admitted that defendants were at this station shortly after the arrival there of the west-bound train. Held, that evidence that defendants had on the night of the murder robbed a man on the east-bound train and taken from him certain coins-, which were found in their possession the next morning, was admissible, although it related to an independent crime. 7. Same — Photographs of Wounds. In a prosecution for murder, photographs showing the nature of deceased’s wounds before their appearance had been altered by surgical operation were properly admitted. 8. Same — Witnesses—Examination—Harmless Error. In a prosecution for murder, defendant as a witness in his own behalf testified on a direct examination that he had served a term in a state prison, and on cross-examination was asked if he had ever been arrested for any other offense, to which he replied that he had been arrested for being drunk. The prosecuting attorney then said that as that was a misdemeanor he did not care anything about it, but only wanted to ask if defendant had been convicted of any other felony. Only a general objection was made to the question as to other offenses, and no motion was made to strike out the answer. Held that, under civil practice act, 377 (Comp. Laws, 3472), and act relating to crimes and punishments, sec. 12 (Comp. Laws, 4667), providing the conviction of a felony may be shown to affect the credibility of a witness, and under the objection made, permitting the question to be asked was not prejudicial error. 9. Homicide — Evidence—Sufficiency. In a prosecution for murder, evidence held sufficient to support a conviction.

Appeal from the District Court, Washoe County; B. F. Ourler, Judge. Fred Roberts and others were convicted of murder, and appeal. The facts sufficiently appear in the opinion. I. It is respectfully submitted to this court to admit as a dying declaration by Jack Welsh, the written statement introduced in the case and marked State's Exhibit J. This statement was offered as a written dying declaration of the deceased. To that offer, the defendants objected in substance as follows: That the declarations are hearsay'; that their admission would violate the constitutional right of these defendants to be confronted by the witnesses against them; that they do not come under the exception to the hearsay rule, known as dying declarations; that declarant was not in extremis; that declarant was not conscious of immediate death; that declarant had not abandoned all hope or expectation of recovery; that a belief that declarant will ultimately die is not sufficient, and no more than this has been shown; and that this is not a written statement by Welsh, signed by him. Dying declarations as evidence are viewed with disfavor. Greenleaf, in treating this subject, remarks: "Credit is not in all cases due to the declarations of a dying person; for his body may have survived the powers of his mind, or his recollection, if his senses are not impaired, may not be perfect; or for the sake of ease, and to be rid of the importunity and annoyance of those around him, he may say, or seem to say, whatever they choose to suggest.” (1 Greenleaf, 16 th ed. sec. 156a.) Clearly these are matters that go to the weight of the evidence, and not primarily to the question of admissibility. Yet these or like considerations have restricted the scope of dying declarations as evidence. They are not admissible in civil cases, nor in any criminal ease other than that of homicide. The apparent infirmities of this class of evidence have been relied upon to exclude the dying declarations from use in the vast majority of cases, and permitted it only upon one question, the causes and circumstances of the death of the deceased, where such death is the subject of the trial. "Because of their inherent infirmities as evidence dying declarations should be closely scrutinized and great care and caution exercised in determining them to be admissible. They should not be admitted unless the prerequisites which are essential to their admissibility are clearly established.” (10 Am. & Eng. Ency. of Law, 387; People v. Rodgdon, 55 Gal. 72; People v. Sanchez, 24 Gal. 24; People v. Taylor, 59 Gal. 646; Boyle v. State, 55 Am. Rep. 218; Reims v. State, 53 Am. Dee. 94; State v. Shepton, 64 Am. Dec. 587.) The preliminary requisites to the admissibility of dying declarations as evidence in homicide cases like the present one, are, in syllabus, as follows: (1) The declarant must be in extremis; (2) the declarant must have been under a sense of impending death, and hope must have been abandoned; (3) death must result. The declarations must concern the circumstances of the homicide which is the subject of the charge.- (Greenleaf on Evidence, 16th ed. vol. 1, chap. 14; 10 Am. & Eng. Ency. Law, 2d ed. 364-373.) The objection of the defendants that Jack Welsh, at the time he made the declaration, was not under a sense of impending death and had not abandoned all hope of recovery, should have been sustained. The time of death is not a part of the statement. We must look to the surrounding circumstances and to other declarations of the deceased to determine whether he believed he was in danger of almost immediate dissolution. That the declaration must be made under a sense of impending death, and of almost immediate dissolution, is amply sustained by the authorities. (People v. Rodgdon, 55 Gal. 72; People v. Ah Bat, 49 Gal. 652; Whittaker v. State, 3 S. E. 403; 1 Greenleaf, 16th ed. sec. 153.) Welsh did not state in his declaration in so many words that death was near. A belief in death is not enough. Declarations must apprehend almost immediate dissolution. (10 Am. & Eng. Ency. of Law, 2d ed. 365, 368; People v. Sanchez, 24 Gal. 17; People v. Ah Bat, 49 Cal. 652; People v. Gray, 61 Gal. 64; Whittaker v. State, 3 S. E. 403; Tracy v. People, 97 111. 101.) The proof must clearly show that the deceased was at the very point of death, and that he was fully aware of the fact. (Morgan v. State, 31 Ind. 193.) Although the declarant need not be literally breathing his last, he must understand that his injuries are fatal, and believe that death is near at hand. (Oom. v; Haney, 127 Mass. 455.) Greenleaf, in dealing with this topic, after stating that it is not the length of time which elapses between the declaration and the death that furnishes the test, continues: "It is the impression of almost immediate dissolution, and not the rapid succession of death in point of fact, that renders the testimony admissible. Therefore, where it appears that the deceased," at the time of the declaration had any expectation or hope of recovery, however slight it may have been, and though death actually ensued in an hour afterwards, the declaration is admissible. On .the other hand, a belief that he will not recover is not itself sufficient, unless there be also the prospect of almost immediate dissolution.” (1 Greenleaf, 16th ed. 158.) Dying declarations are admissible only upon the theory that the " solemnity of the moment of death creates an obligation equal to that which is imposed by a positive oath in a court of justice.” Can it be said that Welsh was impressed by the "solemnity of the moment of death” when-he said that death was not imminent, but only a matter of time? He did not feel at that time that he was on the point of death; he said in effect it was not a matter of the instant, but a matter of time. It does not clearly appear that at the time the statement was made Welsh had abandoned all hope of recovery. Immediately after the operation he said he felt better, and the only expression that he made as to his condition after the operation was in response .to the district attorney's question, and is embodied in the written declaration. He got immediate relief; he expressed the relief-he felt; and it is significant that he no longer said he was going to die, except upon the suggestion of the district attorney, who was trying to get a statement that could be used in evidence. Added to the expression of relief from suffering, we find that later in the day he asks the doctor if he is going to get well. Welsh’s condition may be -shown by statements made both before and after the declarations in question. Before the operation Welsh was in desperate condition. He stated several times that he was going to die. After the operation he felt better and was better. He said so. He ceased saying that he was going to die. He said he felt better, and he thanked the doctor. Do indications of feeling better and expressions referred to indicate a condition of hopelessness — a settled conviction of death? If deceased had the slightest hope of recovery, the declaration is not admissible. (10 Am. & Eng. Ency. of Law, 2d ed. 367 People v. Hodgdon, 55 Cal. 72; Grcwes v. People (Colo.) 32 Pac. 63; Motherly v. Gom., 19 S. W. 977; Com. v. Bishop, 165 Mass. 148, 42 N. E. 560; Bell v. State (Miss.) 17 ¡South. 232; Peake v. State (N. J.) 12 Atl. 701; State v. Bannister (¡3. C.) 14 S. E. 678; Irby v. State (Tex.) 7 S.W. 705.) II. It was error to admit the statements of Jack Welsh identifying the defendants as the men who robbed and shot him. It appears from the evidence in the case that after the defendants were arrested they were taken to the bedside of the deceased'for the purpose of identification, and that Welsh said they were the men who robbed and shot him. The offer of the state is as follows: The state offers it as a dying declaration; and further it offers the testimony of the verbal declarations of the deceased as connected with the body of the crime charged, and as evidence tending to show the conduct of the defendants at the time they were identified by the deceased and accused of the crime, and as evidence tending to show that before his death Welsh identified each of these defendants as being present and concerned in the crime which resulted in his death. The state offers this testimony as a verbal dying declaration of the deceased, and also as part of the res gestee of the crime and as evidence tending to show thq^conduet of the defendants at the time they were identified by the deceased and accused by him of the crime. To that offer the defendants objected that the proper foundation had not been laid to its introduction as a dying declaration; that it was not res gestee; that it was not properly an admission of confession on the part of the defendants; that mere silence of an accusation of guilt is not an acquiescence so as to amount to an admission; that it does not appear that the defendants were given an opportunity to reply. III. The term res gestee is defined in the case of Lund v. Tyngbourough, 9 Cush. 36, as follows: "When the act of a party may be given in evidence, his declarations made at the time, and calculated to elucidate and explain the character and quality of the act, and so connected with it as to constitute one transaction, and so as to derive credit from the act itself, are res gestee.” (-24 Am. & Eng. Ency. of Law, 2d ed. 662; 1 G-reenleaf, 16th ed. sec. 108; 2 Jones on Evidence, sec. 347; State v. Daugherty, 16 Nev. 376.) IY. No inference of guilt is warranted by silence on the part of defendant when under arrest. (Wharton’s Crim. Ev. 9th ed. sec. 680; Oom. v. Kenney (Mass.) 46 Am. Dec. 622; Oom. v. McDermott (Mass.) 25 Am. Rep. 120; Oom. v. Walker (Mass.) 13 Allen, 570; Gardner v. State (Tex.) 34 S.W. 945.) Y. We conceive that it is clear that it is not relevant nor proper to show that the defendant has committed other similar acts or crimes which are not connected in ‘any way with the one in question. (Boyd v. 27. S., 142U. S. 450; Ogle v. Brooks (Ind.) 44 Am. Rep. 778; Com. v. Jackson, 132 Mass. 16; State v. Lapage (N. H.) 24 Am. Rep. 69; People v. Gibbs, 93 N. Y. 470.) Such evidence may be admissible to show fraud or a fraudulent intent, to rebut the inference of accident, or to establish a plan. The facts in this case do not raise any of these questions. It is contended that it is admissible for the purpose of showing that the defendants were in the vicinity of the crime at the time of its commission. Admitting that the state may prove by the witness that the defendants were on train No. 220, it was error to show what occurred at that time and place. (Oom. v. Grief (Ky.) 27 S.W. 814; State v. Flynn (Mo.) 27 S. W. 1105; People v. Jones, 31 Cal. 565; Oom. v. Campbell (Mass.) 83 Am. Dec. 705; People v. Schweitzer, 23 Mich. 301; State v. Hoyt, 13 Minn. 132; Boperv. Territory (Ariz.) 33 Pac. 1014; Marshall v. State (Tex.) 22 S.W. 878.) It was error to admit in this case the pictures of the body of the deceased, and of the mutilated portions thereof, to wit, plaintiff’s exhibits D, E, and F. The state offers the pictures as photographs of the wounds upon the body of Jack Welsh. They were not offered as independent testimony, but for the purpose of illustration. The defendants’ objection is as follows: "We object to these cards as evidence in this case upon the ground that a proper foundation has not been laid for their introduction, and on the ground that photographs are, at the best, only secondary evidence, and we call the attention of the court to 22 Eney. of Law, 2d ed. 772, note 3, etc., and we object on the further ground that the photographs appeal to the prejudice and passion of the jury, and do not in any way aid the witness in giving his testimony.” The objection was overruled and the pictures admitted. Photographs are, at best, only secondary evidence, and are admissible when better evidence cannot be had or has not been produced. (White Seiving Machine Co. v. Gordon (Ind.) 19 Am. St. Rep. 109; Baustian v. Young (Mo.) 75 Am. St. Rep. 462; Fborn v. Zimpelman (Tex.) 26 Am. Rep. 315; Church v. Milwaukee, 31 Wis. 512; Perkins v. Bams (Tex.) 32 S. W. 240; 22 Am. & Eng. Eney. of Law, 2d ed. 772.) Photographs appealing to the passion of the jury and neither necessary nor instructive are inadmissible. (LucLlein v. Meyer, 95 Mich. 586; Selleck v. Janesville (Wis.) 76 Am. St. Rep. 892; Baxter v. Chicago It. JR. Co. (Wis.) 80 N. W. 644; Fore v. State (Miss.) 23 South. 710; Statev. Miller (Or.) 76 Pac. 666.) VI. For the numerous errors committed this cause must .be reversed and a new trial granted. I. Both the dying and written declarations of JackWelsh were clearly admissible. The evidence shows beyond any question of a doubt that at the time of making the declarations he was fully conscious of impending death; that he had abandoned all hope and expectation of recovery; that at the time of making the declarations he was entirely conscious, and in full possession of his intellectual faculties. The declarations were admissible upon the ground of indentification. (Mattox v. 77. S., 146 U. S. 140; Commonwealth v. Roddy, 184 Pa. St. 274; Brotherton v. People, 75 N. Y. 159; State v. Freeman, 1 Spears (S. 0.) 57; McLean v. State, 16 Ala. 672; 10 Am. & Eng. Ency. 2d ed. 383; Transcript, pp'. 76 and 77.) The dying declarations were admissible in evidence, they having been made in the presence of defendants, and were admissible for the purpose of showing defendants’ conduct and behavior when identified and charged as being his assailants and accused of the crime, for which purpose they were specifically offered. (State v. Nash and Redout, 7 Iowa, 347; State v. Gillich, 7 Iowa, 287; State v. Brunetto, 13 La. Ann. 45; Kendrieh v. State, 55 Miss. 436; Powers v. State, 74 Miss. 777; Donnelly v. State, 26 N. J. L. 463; 10 Am. & Eng. Ency. Law, 2d ed. 360.) The rule as to the admissibility of dying declarations does not require that they should have been made while the sufferer was literally breathing his last. If the declarations were made under a sense of impending dissolution, it does not matter if death failed to ensue until a considerable time after the declarations were made. (10 Am. & Eng. Ency. Law, 2d ed. 369, and authorities there cited.) The length of time elapsing between the making of the declarations and the declarant’s death is, however, one of the elements to be considered in determining whether the declarations were made under a sense of impending death. (10 Am. & Eng. Ency. of Law, 2d ed. 369, and authorities cited.) In this instance the deceased died within three hours of the rendition of the dying declarations. Even admitting, for the sake of argument, that deceased was partially unconscious, and which we strenuously deny, and refer to the evidence, the declarations were admissible, and the objections should go to their credibility and not their admissibility. (Hays v. Commonwealth (Ky. 1890) 14 S.W. Rep. 833; 10 Am; &Eng. Ency. of Law, 376, under note, "Narcotics.”) A positive statement by the victim identifying the defendants as his assailants is not an expression of opinion, but a statement of fact where the victim had opportunities for observation. (10 Am. & Eng. Ency. Law, 2d ed. 378.) Dying declarations of deceased as to the state of declarant’s mind are proved by the' express or direct language of the declarant. (10 Am. & Eng. Ency. Law, 2d ed. 388.) We submit to the court that the evidence shows that the dying declarations made by Welsh were as plain, concise, and intelligent as the English language could make them; that his answers in response to queries put to him were direct, responsive, and relevant. The condition and conduct of declarant as to the sense of impending dissolution may be inferred from the apparent condition and nature of his injuries and his conduct and deportment. (10 Am. & Eng. Ency. Law, 2d ed. 389.) We submit that his condition, conduct, and deportment were those of a dying man in full possession of his intellectual faculties, but resigned to his fate. II. The photographs admitted in this proceeding were properly admissible upon several grounds. They were clearly admissible for the purpose of identification. (People v. Smith, 121 N. Y. 578; Grane v. Horton <& Go., 5 Wash. 479; United States v. Pagliano, 53 Fed. 1001; United States v. Lot of Jetvelry, 59 Fed. 684; Travelers Ins. Go. v. Sheppard, 85 Ga. 751; Beavers v. State, 58 Ind. 530; Brooke v. Brooke, 60 Md. 524; Commonwealth v. Campbell, 155 Mass. 537; 22 Am. & Eng. Ency. Law, 2d ed. 773, note 5.) They were admissible upon the ground that they aided the jury in applying the evidence. {People v. Burrant, 116 Cal. 179; Rice, Crim. Ev. 154; Wharton, Crim. Ev. 9th ed. 544; Thomson on Trials, sec. 869; Udderzook v. Commonwealth, 76 Pa. St. 340; Bishop, New Crim. Proc. sec. 1097; People v. Pish, 135 N. Y. 136; Commonwealth v. Campbell, 155 Mass. 537; Ortis v. State, 30 Fla. 256; Bederichs v. Salt Lake City By. Co., 14 Utah, 137; Bed-din v. Gates, 52 Iowa, 210, 213; Transcript, pp. 126-130.) They were admissible as explanatory or illustrative evidence in enabling witnesses to make their testimony clearer, and to enable jurors to understand it better. {Alberti v. H. Y. L. P. & Western B. B. Co., 6 L. R. A. 765; Beddin v. Gates, 52 Iowa, 213; 22 Am. & Eng. Ency. Law, 2d ed. 774.) The court’s attention is particularly directed to the fact that Dr. Giroux in testifying made use of these photographs for the purpose of better illustrating his testimony, so that the jury was better enabled to understand his testimony, and also for the purpose of identifying the body of the deceased. It is a matter of discretion with the trial judge to admit or exclude photographs offered in evidence. (22 Am. & Eng. Ency. Law, 2d ed. 776.) They are admissible if they are instructive to the jury and it is within the discretion of the trial judge to admit or exclude them on the question of whether or not they aré instructive. They were instructive. They were admitted in evidence for the purpose of the identification of Jack Welsh; for the purpose of identifying the deceased as a person on whom Dr. Giroux performed the autopsy, and as the person whom he treated in the hospital at the time of which he was testifying; for the purpose of illustrating and showing the nature, character, course, and extent of the wounds that were inflicted upon the body of Jack Welsh, and as illustrative of the testimony of Dr. Giroux and several witnesses in reference thereto. (Yerran v. Baird, 150 Mass. 141; Gilbert v. West Fnd Street By. Co., 160 Mass. 403; Harris v. Quincy, 171 Mass. 472; Oarey v. Inhabitants of Hubbardston, 172 Mass. 106.) If photographs are admissible, the sole question to be determined is whether or not they represent faithfully that which they are intended to portray. The photographs were true representations, and faithfully represented what they portrayed. It does not make any difference who took the photographs. Photographs taken by amateurs are admissible if proven to be correct. (Underhill on Crim. Ev. par. 51, and authorities cited.) Photographs of the head and neck of a man, showing the wound, when proved to be the true representations of the location of the wound; were held admissible. (People v. Fish, 125 N. Y. 136; Beddin v. Gates, 52 Iowa, 210; Alberti v. Bf. Y. L. F. & W. B. Go., 6 L. R. A. 765.) It is respectfully submitted that the errors assigned by appellants are devoid of legal merit and that the judgment of the lower court must be affirmed. I. It appears from the record on appeal that J. P. Sevener, one of the defendants, after the state rested its case, became a witness in his own behalf, and on his cross-examination by the prosecuting attorney the following questions were propounded to him: Ever arrested for any other offense except the one in California? Defendant’s attorney objected to said question. The court overruled the objection. Defendant’s attorney excepted to the ruling of the court. Answered by defendant: "I was a machinist in the navy yard at Vallejo, and was arrested for being drunk.” Question by prosecuting attorney: ■ I want to ask you if you were ever convicted of a felony except the one which you served for. You know what a felony is — a penitentiary offense, not a county jail offense. I didn’t care anything about that. These questions were clearly inadmissible because they did not tend to impeach the credibility of the witness, and were not in cross-examination of any matter testified to in the direct examination, and tended to prejudice the minds of the jurors against the defendants; their admission is error. (State v. Soft, 11 Nev. 18; Newcomb v. Griswold, 24 N. Y. 298; Gale v. People, 26 Mich. 158; 1 Greenleaf Ev. sec. 458.) II. The testimony is insufficient to warrant the conviction of Fred Eoberts, one of the defendants. Albert Waldman, the companion of Jack Welsh on train No. 219 on the 19th day of August, 1903, testified that he recognized the defendant as being in company with Sevener and Gorman and he asked him for a match. He said he had no matches; that he could get matches over there, pointing to the other ear; that Eoberts had no arms and went to get matches to the other car. After Eoberts disappeared the other three drew pistols, exclaiming: "Throw up your hands, you sons of b-.” Then they assaulted and robbed them; then yelled to the latter: "You sons of b-.” Waldman, in clear and unmistakable language, swears that Eoberts inflicted no injury upon him orWelsh. T. T. Townsend, who was assaulted and robbed on train No. 220, identified Sevener, Gorman, and Williams as his assailants, but did not see Eoberts. The evidence of Mohn, the brakeman on train No. 220, given at the first trial of this cause and read at last trial, shows that Eoberts was seated on a flat-car loaded with lumber, and he flashed his lantern to ascertain who it was. The dying declaration of Jack Welsh, even if admissible, fails to show that Eoberts on train No. 219 on the night of August 19,1903, assaulted or robbed Waldman or Welsh or either of them, or in anyway-aided or assisted the perpetrators of the crime. In view of the testimony of Waldman and Townsend and the condition of Welsh at the time, it is claimed he identified the four defendants, and all of the circumstances connected with such identification renders it extremely unreliable as far as Roberts is concerned; his presence does not make him an accomplice or accessory. III. The most common use of photographs is to enable witnesses to make their testimony clearer and juries to understand it better. They are admissible when the identification of the accused is in issue to show his changed appearance at different times. They are like maps and diagrams permitted as evidence showing the scene of the homicide and the facts surrounding the homicide in support of the theory of the prosecution. (People v. Whalen, 123 Cal. 551; People v. Crandall, 125 Cal. 133.) At best photographs are but secondary evidence, only admissible when lack of better evidence compels a resort to them. (Rice on Ev. vol. 3, sec. 151.) They were not introduced for any legitimate purpose, because the identity of Welsh was never questioned. The witnesses Kelley and Albert Waldman, the companions of Welsh, were on the freight train and witnessed the assault on Welsh and identified him. The man for whom Welsh worked identified him before he died. Welsh told who he was, and therefore there was no necessity for the introduction of his photograph. The wounds on the body of Welsh and the course of the bullets were accurately described by Dr. Giroux, Welsh’s physician, and the pain he suffered. The photographs were not taken until the day after Welsh died; they were taken by one Kenyon, an employee of the Southern Pacific Railroad Company, who was not following the business of a photographer, and who was not shown to have learned the art of photography. They were not substantially necessary or instructive to show any material facts or conditions, and are of such a character as to arouse sympathy or indignation, or divert the minds of the jury to improper or irrelevant considerations. (Selleclt v. City of Janesville, 104 Wis. 575; Sebert v. West Énd 8t. It. R. Co., 160 Mass. 403-405; Karris v. Quincy, 171 Mass. 472; Fore v. State, 75 Miss. 527; State v. Miller, 74 Pac. 653; Dobson v. Philadelphia, 7 Penn.-321.) IV. Upon these two foregoing assignments of error we respectfully submit that the judgment of the court below should be reversed and a new trial ordered. I. Both the dying and written declarations of deceased were clearly admissible. The evidence shows beyond any question that at the time of making the declarations he was fully conscious of impending death; that he had abandoned all hope and all expectation of recovery; that at the time of making the declaration he was entirely conscious, and in full possession of his intellectual faculties. The evidence shows clearly and beyond any question of doubt that Welsh was in a dying condition from the time he was brought to the hospital on the day he made the oral and written dying declarations until he died, and the evidence shows clearly that he was treated and considered as a dying man. Every witness who saw him testified to that effect. The transcript is one mass of evidence in favor of the above legal requisites necessary to the admission of dying declarations. The declarations were admissible upon the ground of identification. {Mattox v. TJ. S., 146 U. S. 140; Commonwealth v. Poddy, 184 Pac. 274; Brotherton v. People, 75 N. T. 159; State v. Freeman, 1 Spears (S. 0.) 57; McLean v. State, 16 Ala. 672; 10 Am. & Eng. Ency. 2d ed. 383.) The dying declarations of deceased were admissible in evidence, they having been made in the presence of defendants, and were admissible for the purpose of showing defendants’ conduct and behavior when identified and charged as being his assailants and accused of the crime, for which purposes they were specifically offered. The declarations were clearly admissible, not for the purposes argued by counsel to show that the silence of the prisoners was tantamount to a confession of guilt, but tending to show the demeanor and bearing and behavior of the defendants at the time that they were identified by the deceased. For instance, Mr. Stanton, Sheriff Lamb, Judge Robbins, and others testified that when the defendants were identified their faces turned pale, and they trembled and showed signs of nervousness. (State v. Wash and Redout, 7 Iowa, 347; State v. Gillick, 7 Iowa, 278; State v. Brunetto, 13 La. Ann. 45; Kendrick v. State, 55 Miss. 436; Powers v. State, 74 Miss. 777; Donnelly v. State, 26 N. J. L. 463; 10 Am. & Eng. Ency. Law, 2d ed. 360.) The rule as to the admissibility of dying declarations does not require that they should have been made while the sufferer was literally breathing his last. If the declarations were made under a sense of impending dissolution, it does not matter if death failed to ensue until a considerable time after the declarations were made. The length of time elapsing between the making of the declarations and the declarant’s death is, however, one of the elements to be considered in determining whether the declarations were made under a sense of impending death. (10 Am. & Eng. Ency. Law, 2d ed. 369, and authorities there cited.) In this instance the deceased died within three hours of the rendition of the dying declarations. Even admitting, for the sake of argument, that deceased was partially unconscious, but which we strenuously deny, and refer to the evidence, the declarations were admissible, and the objections should go to their credibility and not their admissibility. (Kays v. Oommonivealth (Ky. 1890) 14 S. W. 833; People v. Beverly, 108 Mich. 509; 10 Am. & Eng. Ency. Law, 2d ed. 376, under note, "Narcotics”.) A positive statement by the victim identifying defendants as his assailants is not an expression of opinion, but a statement of fact where the victim had opportunities for observation. (10 Am. & Eng. Ency. Law, 2d ed. 378.) Dying declarations of deceased as to the state of declarant’s mind are proved by the express or direct language of the declarant. (10 Am. & Eng. Ency. Law, 2d ed. 388.) We submit to the court that the evidence shows that the dying declarations made by Welsh were as plain, concise, and intelligent as the English language could make them; that his answers in response to queries put to him were direct, responsive, and relevant. The condition and conduct of declarant as to the sense of impending dissolution may be inferred from tbe apparent condition and nature of his injuries, and bis conduct and deportment. (10 Am. & Eng. Ency. Law, 2d ed. 389.) Tbe court’s attention is particularly invited to pages 510 to 513 of tbe transcript wherein Mr. Warren properly lays tbe foundation for tbe admission of tbe declarations through Dr. Giroux. We submit that the condition, bis conduct, deportment, and behavior were those of a dying man in full possession of bis intellectual faculties, but resigned to bis fate. Further, that at the time of tbe making of tbe oral and written dying declarations, tbe testimony shows unmistakably that Welsh not only knew and believed be was going to die, but that be was actually dying at tbe time, and was so treated by all who attended him. II. Tbe photographs admitted in this proceeding were properly admissible upon several grounds. They were clearly admissible for tbe purpose of identification. {People v. Smith, 121 N. T. 578; Crane v. Horton & Co., 5 Wash. 479; United States v. Pagliano, 53 Fed. 1001; United States v. Lot of Jeivelry, 59 Fed. 684; Travelers Ins. Co. v. Sheppard, 85 Ga. 751; Beavers v. State, 58 Ind. 230; Broohe v. Broohe, 60 Md. 524; Commonwealth v. Campbell, 155 Mass. 537; 22 Am. & Eng. Ency. Law, 2d ed. 773, note 5.) Tbe court’s attention is directed to tbe testimony of Conductor La Point, wherein be specifically identifies Jack Welsh from a photograph banded him as being tbe man whom be picked up on August 20th on tbe end of some ties near Zola siding. Tbe court’s attention is further directed to tbe testimony of Mr. N. S. La Point, wherein be states that be never saw Jack Welsh before nor since that date, thereby making tbe photograph a necessity in so far as identifying Jack Welsh was concerned as the man be picked up on tbe morning following tbe tragedy. Tbe court’s attention is further directed to Dr. Giroux’s testimony, wherein be not only identifies Jack Welsh as tbe party upon whom be operated for tbe wounds received from the assault of tbe defendants, but also as to bow be used tbe photographs as a means of making his testimony clearer to tbe jury. They were clearly admissible upon tbe ground that they aided tbe jury in applying tbe evidence. {People v. Bur-rant, 116 Cal. 179; Rice, Crim. Ev. 154; Wharton’s Crim. Ev. 9th ed. sec. 544; Thomson on Trials, sec. 869; Udderzooh v. Oommomvealth, 76 Pa. St. 340; Bishop’s New Crim. Proc., sec. 1097; People v. Fish, 125 N. T. 136; Commonwealth v. Campbell, 155 .Mass. 537: Ortis v. State, 30 Ela. 256; Bederichs v. Salt Lake City By. Co., 14 Utah, 137; Beddin v, Gates, 52 Iowa, 210, 213.) They were admissible as explanatory or illustrative evidence in enabling witnesses to make their testimony clearer, and to enable jurors to understand it better. (Alberti v. N. Y. L. F. & Western B. B. Co., 6 L. R. A. 765; Beddin v. Gates, 52 Iowa, 213; 22 Am. & Eng. Ency. Law, 2d ed. 774.) The court’s attention is particularly directed to the fact that Dr. Giroux in testifying made use of these photographs for the purpose of better illustrating his testimony, so that the jury was enabled better to understand his testimony and also for the purpose of identifying the body of deceased, Jack Welsh. IY. It is a matter of discretion with the trial judge to admit or exclude photographs offered in evidence. '(22 Am. & Eng. Ency. Law, 2d ed. 776.) They are admissible if they are instructive to the jury, and it is within the discretion of the trial judge to admit or exclude them on the question of whether or not they are instructive. They were instructive. They were offered and admitted in evidence for the purpose of illustrating and explaining the testimony of the witnesses; for the purpose of the identification of Jack Welsh; for the purpose of identifying the deceased as the person on whom Dr. Giroux performed the autopsy and as the person he treated in the hospital at the time of which he was testifying; for the purpose of illustrating and showing the nature, character, course, and extent of the wounds that were inflicted upon the body of Jack Welsh, and as illustrative of the testi-' mony of Dr. Giroux and several witnesses in reference thereto. (Yerran v. Baird, 150 Mass. 141; Gilbert v. West Fnd Street By. Co., 160 Mass. 403; Harris v. Quincy, 171 Mass. 472; Carey v. Inhabitants of Hubbardston, 172 Mass. 106.) If photographs are admissible, the sole question to be determined is whether or not they represent faithfully that which they are intended to portray. The photographs were true representations and faithfully represented what they portrayed. (Testimony of Giroux, Kenyon, and La Point.) It does not make any difference who took the photographs. Photographs taken by amateurs are admissible, if proven to be correct. (Underhill on Or. Ev. par. 51, and authorities cited.) Photographs of the head and neck of a murdered man, showing the wound, when proved to be true representations of the location of the wound, were held admissible in People v. Fish, 125 N. Y., 126. And subject to like limitations, the same rule was applied by the court in Beddin v. Gates, 52 Iowa, 2Í3, and in Alberti v. N. Y. L. F. & W. B. Go., 6 L. R. A. 765. Y. The admission of the testimony of Townsend was clearly admissible upon several grounds. It was admissible and competent to show by Townsend that defendants accused of this crime were in the vicinity of the perpetration of that crime a short time before or at the time the crime was committed. It was admissible and competent to show by testimony of Townsend that defendants had an opportunity to commit the crime. The evidence-of Townsend giving reasons why he could identify the defendants as being the parties who were near the scene of the tragedy at the time of its occurrence is clearly admissible. The court's attention is particularly directed to the reasoning of the lower court before ruling on the objection interposed to the admission of the testimony of Townsend. The court most elaborately instructed the jury on the cardinal principle of law, founded on common justice, that the commission of one crime by a person or persons is no evidence of itself of the commission of another crime at a different time or place. "Relevant evidence is not admissible because indirectly proving or tending to prove another crime. All evidence is relevant which throws or tends to throw any light upon the guilt or innocence of the prisoner, and relevant evidence which is introduced to prove any material fact ought not to be rejected merely because it proves or tends to prove that at some other time the accused has been guilty of some other independent crime,” etc. (Underhill on Cr. Law, 112 to 190.) "If evidence establishes a iink in the chain of proof, it is relevant.” (Jones on Evidence, sec. 143, vol 1.) VI. The evidence of Waldman objected to by the defendants is also clearly admissible;, the same coming clearly within the rules covering res gestee. It is not necessary, as counsel insists, that all evidence to be admissible as a part of the res gestee should pertain to that which immediately happened before or at the time of the commission of the act; the great mass of authorities hold that it is competent and proper to show any accompanying facts and circumstances which are actually or substantially contemporaneous with it and calculated to elucidate and explain its character. (24 Am. & Eng. Ency. Law, 662-665.) The simple reading of the evidence of Waldman objected to will clearly demonstrate the same being unmistakably connected with the commission of the crime in issue, and necessarily becoming res gestee. VII. Defendant Sevener having placed' his character in issue after voluntarily admitting that he had been arrested in Vallejo for the commission of a misdemeanor, it was clearly proper under the most elementary principle of criminal law that the district attorney had the right to show up defendant's character, and not only had the right to ask it of himself whether or not he had ever been convicted of any other felony than the one for which he served in San Quentin, but had the right by other witnesses to have gone into detail in the criminal record of any of. the other defendants. The instructions of' the court instructing the jury that they should not take into consideration the commission of the other offenses by the defendants in determining the guilt or innocence of defendants of the crime for which they were on trial, would in itself have sufficiently cured this error, if error it was admitted to be. VIII. Not only did Jack Welsh in his dying statement assert that Roberts shot him, Roberts being referred to as the "heaviest and shortest one of the lot,” but also identified him the day after the tragedy as one who took part in the commission of the crime. Waldman also testified that Roberts was present.