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sections 24 and 27 of the said act of 1881, seem to have been intended as a substitute for sections 32 and 34 aforesaid; they substantially cover the same field, and, in so far as any conflict exists, of course, the later provisions must prevail. If this view be correct, counsel's argument falls to the ground. The appeal provided for in said section 1,789 clearly and unequivocally relates to a review in the supreme court of the action in the district court in determining priorities of right. It could not possibly be considered as referring to the decision of the commissioners in fixing the prices of water under section 1,740 aforesaid.

But, supposing we are mistaken in suggesting that the repeal mentioned has taken place, still we cannot concur with counsel in his conclusion as to the effect of section 34 of the act of 1879. This provision, in our judgment, relates to the matters appearing in sections 19 to 33 inclusive, immediately preceding. That portion of the law is devoted exclusively to the adjudication in the district court, or under its supervision, of the priorities of right to water in the respective irrigation districts; said section 34 provides for appeal from the court's decree and orders in that adjudication, to the supreme court. We infer this from the provision of the section and connection in which it appears; from the fact that it provides that the action mentioned shall be governed by the laws then in force regulating appeals; and from the further fact that it authorizes the supreme court to make "such order and rule," concerning such appeals, as may be deemed proper.

The reference to laws in force must, for obvious reasons, mean general laws; but there was not at that time, and there is not now, any general law providing for appeals from the decisions and orders of boards of county commissioners; sections 547 and 548 of the general statutes referred to, are confined to appeals from orders disallowing claims against a county. Again, it would be an extraordinary proceeding for the general assembly to delegate to this court the power to legislate concerning matters not pending before us or connected with procedure herein; such power would have to be clearly and unequivocally conferred. We think the clear intent was to authorize the court to make rules and orders not inconsistent with law, regulating appeals taken to or pending herein in the particular proceeding mentioned.

We may agree fully with counsel that a review of the decision of the board of county commissioners in the premises ought to be provided for. There is opportunity for gross injustice to the ditch owners on the one hand, or the consumers on the other, according as the interest or inclination of the commissioners might dictate. But our duty is to construe the statute, not to enact it; and as the law now stands, no appeal from such decisions is provided for. Therefore, respondent's attempted appeal from the order mentioned in this case fixing the rates, was of no avail.

Seventh. Under the statute, before relator became entitled to the water claimed, he was required, as we have already seen, to pay or tender the proper price therefor.

The petition avers that he made this tender on the fifth of May, but that respondent refused to accept the same, or to furnish the water; it further avers that relator has at all times since been and then was ready and willing to pay the sum fixed by the commissioners; and that he then in court renewed such tender. In reply to the averments respondent by his answer denies that on the fifth day of May, 1884, such tender was made, but admits that on the thirty-first day of May, relator presented his application, and accompanied the same with the tender at one dollar and fifty cents per inch, the price established by order of the commissioners. If the denial stood by itself, it would probably be bad as a negative pregnant; but the admission obviates all doubt. We have already concluded that under the pleadings the application was made in apt time, and that relator was entitled to the right of user conferred by the statute. But if his application was in time, his tender was also in time; under our view of the answer, stated in the third division of this opinion, it is of no consequence whether these acts were performed on the fifth or on the thirty-first day of May.

Eighth. It is asserted that this action ought not to be maintained because a petition and affidavit were not filed as required by section 334 of Dawson's Code. Relator designates the paper filed as "his petition and affidavit;" and the matters therein stated are attested by the usual verification. The petition for mandamus must state all of the facts necessary to justify granting the relief demanded; no other or different matters are required to be set out in the affidavit; and there would seem to be no good reason why a proper attestation of the former under oath is not sufficient. The statute, it is true, uses the expression "petition and affidavit," but we do not think that this necessarily requires the filing of two separate papers; had relator filed his petition unverified, and then filed an exact copy thereof, sworn to, calling the latter an affidavit, no objection could have been taken. We think that if he chooses to avoid encumbering the records with the extra paper and properly verifies his petition, it is a compliance with the statute. It will be observed that this proceeding is unlike attachment and other proceedings wherein matters are required to be stated by affidavit which need not appear in the original complaint.

We are of opinion that the demurrer challenging respondent's various defenses was correctly sustained. The judgment is therefore affirmed.

SUPREME COURT OF IDAHO.

PEOPLE V. DEWEY.

Filed February 17, 1885.

RES GESTAE-SUBSEQUENT DECLARATIONS WHEN NOT.-Declarations of deceased made half or three quarters of an hour after an affray (in which deceased was fatally shot), and after the occurrence had wholly ceased, when all danger was over, the defendant under arrest, and when deceased had been for that length of time among his friends, are inadmissible as part of the res gestae.

REASONABLE DOUBT.-"A reasonable doubt" is not a mere possible doubt, nor is it captious or imaginary doubt, but it is such a doubt as a prudent and reasonable man would be likely to act upon in determining important affairs of life. The above definition of the term, while not perhaps the best that can be given, has been substantially approved by the courts, and is not error.

APPEAL from the second judicial district court of Owyhee county. R. Z. Johnson, for the appellant.

Huston & Gray, for the respondent.

MORGAN, C. J. The defendant was indicted and tried at the September term of the Owyhee district court, for the murder of Joseph Koenig. He was convicted of manslaughter.

Defendant moved for a new trial, which motion was denied by the court, and defendant appealed from the judgment and from the order denying a new trial, and assigned the following as error, viz.:

First. The court erred in permitting the witness Williams, over the objection of defendant, to testify to statements of the deceased, highly criminative of defendant, made to the witness from one half to three quarters of an hour after the affray was terminated, and in the absence of the defendant, and after defendant had been arrested and taken from the scene of the conflict.

The following cases are relied upon to support the ruling in the case at bar, to wit: Insurance Co. v. Moseley, 8 Wall., 397; King v. Foster, 6 Carrington & Payne, 325; Commonwealth v. McPike, 3 Cushing, 181; Thompson and wife v. Trevanion, Skinner, 402.

In the case of Insurance Co. v. Moseley, 8 Wallace, 397: The deceased had fallen down stairs and received a severe hurt upon his head, from the effects of which he afterwards died. The question as to whether his declarations made immediately after the hurt was received as to his bodily pains and injuries were admissible in evidence. The court said that "what the deceased said as to his pains, related to present existing facts, at the time they were made." We may say, in passing, that declarations of this character are uniformly held to be proper. The declarations as to how he received the injury were made immediately, or very soon after the fall. To sustain the admission of the latter declarations, the court cites Thompson and wife v. Trevanion, Skinner, 402. In the latter case the court allowed what the wife said, immediately upon the hurt received, and before she had time to contrive or devise anything for her own advantage, to be given in evidence.

In King v. Foster, 6 Carrington & Payne, 325: The defendant was indicted for killing the deceased by driving a cab over him.

The witness heard the deceased groan and immediately went to him and asked him what was the matter. Gurney, baron, said that what the deceased said at the instant as to the cause of the accident was clearly admissible. Park, justice, said it was the best possible testimony that, under the circumstances, could be adduced to show what knocked the deceased down.

In the case of Commonwealth v. McPike, 3 Cushing, 181: The defendant was charged with killing his wife. It appears that deceased ran upstairs from her own room, in the night, crying murder, and bleeding. A person who heard her cries went for a watchman, and on his return proceeded to the room where she was. He found her upon the floor bleeding profusely. She said the defendant had stabbed her. The declaration was admitted in evidence. The supreme court of Massachusetts held that the evidence was properly admitted, giving as a reason that the declaration was "of the nature of res gestae" and that the time when it was made was so recent, after the injury was inflicted, as to justify receiving it on that ground.

It will be noticed that in each of these cases the declarations were made by the deceased, almost immediately after the injury was received, before the deceased had time to think of, or contrive a story, and they were admitted in each case for that reason.

We cannot escape the conclusion that there was another reason for the admission of testimony in these cases, although not stated. In each case the defendant and deceased were the only persons present when the injury was inflicted. There was no other eyewitness. The absolute necessity of this testimony to work a conviction of a person believed to be guilty, and the nature of the declaration, rendering it almost absolutely certain that the statement was true, must have entered into the consideration. closing paragraph in the opinion of the court in the case of Insurance Co. v. Moseley, supra, indicates this. The court say, "In the ordinary concerns of life no one would doubt the truth of these declarations, or hesitate to regard them uncontradicted, as conclusive. Their probative force would not be questioned.

The

As to the necessity of bringing them in under the head of res gestae, the court say "that what was said could not be received as dying declarations, although the person who made them was dead, and hence could not be called as a witness."

The reasoning of the court, in brief, is this: These declarations were a part of the res gestae. They were undoubtedly true. They were conclusive. They could not be admitted as dying declarations. The case could not be made out without them. Therefore they were properly admitted.

If the first proposition is correct, there is no need of the others, and the last named four propositions furnish no legal reasons for the admission of the testimony.

In the case at bar, the declarations sworn to by the witness Williams were made one-half or three-quarters of an hour after the

shooting occurred, and the same length of time after the conflict was ended. The deceased had been taken across the street into his own house; several persons were present, all of them his own friends. Counsel for the people asked witness (Williams) the following questions:

Q. How soon after the shooting was it that you heard him (the deceased) make any statement?

A. I could not tell exactly the time; may be half or three-quarters of an hour.

Q. Do you know whether King, at that time, was aware of his condition?

A. I cannot tell.

Counsel then desired to renew the questions as to what King said as being part of the res gestae. To this defendant's counsel objected. Objection was overruled, and defendant, by his counsel, excepted. The following is the testimony:

Q. Will you state what statements Mr. King made to you in regard to this shooting?

A. I asked him which shot struck him, and he told me it was the first shot fired that struck him, just when he was going over the boards into the brewery.

Q. He said that he was struck as he was going over those boards, and that it was the first shot?

A. Yes, sir, just as he went over the boards.

To indicate how far these declarations are from the original rule with reference to matters coming under the head of res gestae, it is only necessary to refer to the definition of the term, which is, the "transaction, thing done, the subject matter; as, when it is necessary, in the course of a cause, to inquire into the nature of a particular act, or the intention of the person who did the act, proof of what the person said at the time of doing it is admissible evidence as part of the res gestae, for the purpose of showing its true character."

Greenleaf says the principal points of attention are, whether the circumstances and declarations offered in proof were contemporaneous with the main fact under consideration, and whether they were so connected with it as to illustrate its character:" 1 Green. Ev., sec. 108.

The general rule is, that declarations, to become part of the res gestae, must accompany the acts which they are supposed to characterize, and so harmonize with them as to constitute one transaction: Enos v. Tuttle, 3 Conn., 250; State v. Dougherty, 17 Nev., 376.

If the declarations offered in evidence are mere narrative of a past event or occurrence, they are inadmissible: Binn v. The State, 57 Ind., 46; Denton v. The State, 1 Swan, 279; The State v. Tilley, 3 Ired., 424.

In Bland v. The State, 2 Ind., 608, it was held incompetent for the accused to prove a statement made by himself half an hour after the homicide, concerning the circumstances under which it was committed.

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