other time, at the request of the plaintiff, or under an indenture of lease made and executed by the plaintiff to said Flynn."

If Flynn held a valid lease from Hite at the time the ejectment suit was brought there could be no question. as to his right of possession under it. The term specified in the lease had not expired. He had pleaded a right of possession in himself, and though he did not mention the lease he could have put it in evidence under his plea, and if the lease was valid must have succeeded in the action. It is therefore immaterial, for the purposes of the present case, whether he offered the lease in evidence or not, or whether, as a matter of fact, he relied upon it to establish his right of possession, since he put his title in issue, and had the opportunity of doing so. But were it otherwise, it is not only clear from the judgment-roll offered in evidence that the lease was in issue in the ejectment suit, but the record in this case clearly shows that it was in issue, and was relied upon in that case, and that he did not claim to have acquired any right of possession from Cunniff. that he pretends ever to have bought from Cunniff was certain improvements placed upon the property by Cunniff, and that he bought them for the purpose of getting possession under the lease here in question. In his testimony in chief in this case he testified: "They told me that the best way to get possession from Cunniff was to go and buy him out. He wouldn't sell until his term was up." (Fol. 69.) Upon cross-examination he was examined as to his testimony upon the former trial, and admitted that upon the trial of the ejectment case he testified that he bought Cunniff's building on the first day of May, 1891; that since that time he had been in possession of the property "under this lease." (Fols. 112, 113.)

All

The judgment-roll above mentioned. was excluded when first offered, upon the ground that said judgment had not been pleaded. Whether the court erred in then excluding it it is not necessary to consider; but

before it was again offered the answer had been amended in that regard, and the evidence above mentioned as having been given upon the trial of the ejectment suit had been heard.

Counsel for respondent assume that the ejectment case went off upon the point that Flynn entered under Cunmiff, and, as Cunniff had no title or right to the possession after the expiration of his term, he could confer no right of possession upon Flynn; that, claiming under Cunniff, Flynn was estopped to deny Hite's title and right of possession, and cite Standley v. Stephens, 66 Cal. 541, and other like cases, in support of their contention.

These cases have no application here. It is quite true that, if Flynn entered under Cunniff, knowing that Cunniff was a tenant, he could not thereby acquire a right of possession adverse to the landlord, or dispute his title, without first surrendering possession; but Cunniff's term having expired, if Flynn had a valid lease from Hite his possession under the lease could not be adverse, nor could it be necessary that he should surrender a possession held under it in order that he might be put back under the same lease. Being in possession under a valid lease he was not estopped from defending his possession under it, for the sufficient reason that, if the lease was valid, Hite was estopped from denying his right to possession under a lease expressly conferring such right. If it be conceded that Flynn did not offer his alleged lease in evidence, that fact would not affect the conclusiveness of the judgment, as under the issues in that case its validity might properly have been determined. (Gray v. Dougherty, 25 Cal. 266, 272; Freeman on Judgments, 4th ed., secs. 249, 260.)

The judgment in that case being conclusive, it is not perceived how the plaintiff is entitled to damages for not being permitted to occupy premises which it had been solemnly adjudged he had no lawful right to occupy.

Many other errors are specified by appellant, but as plaintiff's right of action could not exist unless he had

a right of possession under the lease, and that right having been adjudicated in the former action, it is immaterial whether the court erred in other particulars or not. For the error in excluding said judgment-roll, when offered in evidence the second time, the judgment and order appealed from should be reversed.

BELCHER, C., and BRITT, C., concurred.

For the reasons given in the foregoing opinion the judgment and order appealed from are reversed. HARRISON, J., GAROUTTE, J., and VAN FLEET, J.

Hearing in Bank denied.

[No. Crim. 17. In Bank.-June 21, 1895.]

THE PEOPLE, RESPONDENT, v. ALFRED GRESS, AP

PELLANT.

CRIMINAL LAW-HOMICIDE-EVIDENCE-HEAKSAY-DECLARATIONS OF DECEASED.-Upon a trial for murder, declarations of the deceased not made in extremis, as dying declarations having reference to the circumstances of the death, and not constituting any part of the res gestae, are hearsay and inadmissible in evidence. ID.-DECLARATIONS PRECEDING HOMICIDE.-On the trial of a defendant accused of murder, the admission of evidence of the declarations of the deceased made on the day before the homicide, to the effect that he had discovered that the defendant had been writing to his wife, and was trying to get his wife and child to run away with him, is prejudicial error.

ID. IRRELEVANT EVIDENCE-TESTIMONY OF WIFE OF DECEASED.— Where the killing was admitted by the defendant, and the only issue was as to whether it was in necessary self-defense, the testimony of the wife of the deceased, and of the defendant's efforts to induce her to leave her husband, is not pertinent to any issue before the jury, and it is prejudicial error to admit such testimony in evidence.

APPEAL from a judgment of the Superior Court of Tuolumne County.

The facts are stated in the opinion of the court.

Frank W. Street, for Appellant.

The declarations of the defendant were not admissible in evidence, not being dying declarations nor part of the res gestæ. (1 Greenleaf on Evidence, sec. 156; People v. Carkhuff, 24 Cal. 643; People v. Carlton, 57 Cal. 83; 40 Am. Rep. 112; People v. Dailey, 59 Cal. 600; People v. Taylor, 59 Cal 640-48; People v. Irwin, 77 Cal 494.) The testimony of Mrs. Assalena had no relation to the homicide, and was inadmissible. (1 Greenleaf on Evidence, secs. 51, 52; People v. Jones 31 Cal. 570; PeopZe v. Tyler, 36 Cal. 526; People v. Daniels, 70 Cal. 521; People v. Dye, 75 Cal. 112; People v. Wallace, 89 Cal. 162.

Attorney General W. F. Fitzgerald, for Respondent.

for

3d

The evidence was admissible as showing a motive the crime charged. (Roscoe on Criminal Evidence, Am. ed., 95, 99; 1 Greenleaf on Evidence, 70; Shaffner v. Commonwealth, 72 Pa. St. 60; 13 Am. Rep. 649; 15 Am. & Eng. Ency. of Law, 938; People v. Wood, 3 Park, C. R. 681; Jones v. State, 63 Ga. 395; State v. Kline, 54 Iowa, 183; Pontius v. People, 82 N. Y. 339; Shorter v. State, 63 Ala. 129; State v. Grant, 79 Mo. 113; 49 Am. Rep. 218; Reinhart v. People, 82 N. Y. 607; State v. Morris, 84 N. C. 756; Commonwealth v. Damon, 136 Mass., 441; People v. Sharp, 107 N. Y. 427; 1 Am. St. Rep. 851; State v. Lapage, 57 N. H. 245-95; 24 Am. Rep. 69; Pierson v. People, 79 N. Y. 424; 35 Am. Rep. 524.)

VAN FLEET, J.-Defendant was convicted of having murdered one Louis Assalena, and was sentenced to imprisonment for life. He appeals from the judgment

an order denying him a new trial.

and

the

One Kane, a witness called by the state, was permitted, against the objection of defendant, to testify that, on the evening of the day preceding the one on which the homicide was committed, the witness saw Assalena, deceased, at La Grange, just before the latter left for Sonora, where the killing took place, and that Assalena then stated that he had discovered that the defendant

had been writing to his (Assalena's) wife, and was trying to get his wife and child to run away with him, defendant. And another witness for the prosecution, one Watt, was permitted to state that on the same evening at La Grange, Assalena told him, "I am in trouble. I have a family in Sonora, and a few months ago I took a young man in as partner with me, and here lately I have discovered that he is about to get away with my wife and child, and I want to get to Sonora as quick as possible. I want to save my boy, and that's my hurry for coming here." This evidence was clearly hearsay, and was wholly inadmissible upon any possible theory of the case, or upon any principle or rule of evidence known to the law. It was no less hearsay because the declarations were those of the deceased, since proof of such declarations are only admissible when made in extremis dying declarations, having reference to the circumstances of the death, or when they constitute a part of the res gesta. (People v. Carkhuff, 24 Cal. 642.) In this case they were neither. The mortal blow had not been struck, nor were they in any manner connected with the renconter which resulted in Assalena's death. Obviously the admission of this evidence was highly prejudicial to the defendant, since its inevitable tendency would be to greatly inflame and prejudice the minds of the jury against him. (People v. Carlton, 57 Cal. 84; 40 Am. Rep. 112; People v. Irwin, 77 Cal. 494.)

It was also error to admit the evidence of Mrs. Assalena as to the defendant's efforts to induce the witness to leave her husband. Under the circumstances of this case the evidence was not pertinent to any issue before the jury. Were the case one of circumstantial evidence, and the fact in doubt as to whether defendant did the killing, such evidence might be admissible upon the question of motive (Pierson v. People, 79 N. Y. 442; 35 Am. Rep. 524); but here the killing was admitted, and the only issue was whether it was in necessary self-defense. In such a case evidence of this character serves no competent purpose, while its effect was necessarily