of the lot,) to defendant's damage of $350; it requiring from 50 cents to a dollar a thousand feet more to utilize the timber left on the ground, and in inconvenient localities of the ground cut over, than the contract price of plaintiffs." This allegation is not clear and distinct, and it is difficult to determine just what the pleader intended; but it seems that the more reasonable construction of the allegation is that the breach of the contract attempted to be assigned and relied upon is for culling the timber on the ground cut over, and leaving suitable timber thereon, not cut into saw logs, and cutting and delivering a lot of unsound logs. It is not alleged that respondents had violated their contract by cutting all or any of the near timber, to the neglect of the remote, or by cutting the convenient timber to the neglect of the remote portions of the ground to be cut over; and for these reasons, and upon this construction of the allegations of the answer, it seems to us that the instructions asked and refused attempted to present to the jury a question not made by the pleadings, and therefore were properly refused. It follows that the judgment must be reversed, and a new trial ordered. 1. Deceased, while in a semicomatose condition, due to a gunshot wound, from which he never rallied, and which speedily proved fatal, and after saying, at intervals, that he could not live, declared to persons present the person who shot him. Held admissible, as a dying declaration made under a sense of impending death. 2. The exclusion of evidence tending to impeach, by showing inconsistent statements on the part of a witness, is harmless, where the witness has himself admitted making such statements. 3. Refusal to permit the defense, on a trial for murder, to experiment with pistol and cartridges found on defendant, for the purpose of showing that a ball from the pistol would penetrate further into the woodwork of the room where deceased was shot than the balls from the pistol probably used, is not erroneous, where the conditions as to position, distance, etc., are not shown to be the same. 4. Evidence of a confession of guilt by a third person, who has since disappeared, of previous threats made by such person, and of the fact that he had been seen within a few miles of the homicide a few hours after it had been committed, coming from that direction, is the merest hearsay, not affording any reasonable presumption of guilt or innocence on the part of defendant, and is hence inadmissible. Appeal from circuit court, Umatilla county; James A. Fee, Judge. Frank Fletcher appeals from a conviction of murder in the second degree. Affirmed. J. C. Leasure, for appellant. Chas. F. Hyde, Dist. Atty., and Geo. F. Chamberlain, Atty. Gen., for the State. BEAN, J. The defendant appeals from a judgment of conviction of murder in the second degree, in killing one Charles Petre, and assigns error in the admission and rejection of evidence by the trial court. 1. A question is made that the ante mortem declarations of the deceased were improperly admitted, because, it is claimed, the evidence does not show that they were made under a sense of impending death. The deceased was shot through the head about 11 o'clock on the evening of the 9th of November, 1892, while in bed, from the effects of which he died about 3 o'clock on the second day thereafter. It appears from the testimony of Frank Olinger, a boy about 11 years old who was the only eye-witness to the homicide, that soon after the shooting the deceased got out of bed, and tried to build a fire; then he attempted to wash the blood from his person, and close the door, but went back to bed, saying he "was shot through the head, and did not think he would live, because he was hurt too bad." When visited by the physicians, on the afternoon of the following day, he was found in a semicomatose, but conscious, condition,capable, when aroused or spoken to, of answering intelligently such questions as were propounded to him. The witness Martin testifies that he called at the residence of the deceased about 4 o'clock on the day following the shooting, just as the physicians were leaving, and remained about two hours. At intervals during the time he was there the deceased used the expression, "My God, I can't live," and, after he had used this expression several times, the witness says: “I went back to the bed where he was lying, and spoke to him, and took him by the hand, and said, 'Charley, do you know me?' and he hocked the blood out of his mouth, and said, 'Mr. Martin.' I said, 'Charley, this is a horrid bloody affair.' I said, 'Who did it?' and he said 'Frank Fletcher,' and he said that just one time. He seemed to be suffering greatly, and I thought he would rally, and I would have a further conversation with him. I thought it was not right to talk with him." Statements as to the person who committed the crime, similar to those made to the witness Martin, were also made by the deceased to the attending physicians and the deputy sheriff a short time before Martin called, and to one Irons, about 9 o'clock of the same evening, and while he was in about the same physical condition. Under these circumstances, we think the declarations were competent evidence. Here was a man lying on his bed, in a semicomatose condition, suffering from a mortal gunshot wound, from which he never rallied, and which speedily proved fatal, and declaring at intervals that he could not live. Not a word seems to have been said by the physicians, the deceased, or any one else, indicating that there was the slightest hope of his recovery, or that he had in any way changed his opinion as to the result of the wound, as expressed to the | fusal of the court to permit the defense to boy Olinger on the evening before. When we consider these circumstances, and his physical condition, of which he was manifestly conscious, we cannot doubt that he was under a sense of impending death at the time the declarations admitted in evidence were made. To render the declarations of a deceased person evidence, it must appear that they were made under a sense of impending death, and when the deceased had no hope of recovery; but it is not necessary to prove the existence of such belief by any express statements of the deceased, but it may be inferred from all the circumstances. "It is enough," says Mr. Greenleaf, "if it satisfactorily appear, in any mode, that they were made under that sanction; whether it be directly proven by the express language of the declarant, or be inferred from his evident danger, or the opinion of the medical or other attendants stated to him, or from his conduct, or other circumstances of the case, all of which are resorted to in order to ascertain the state of the declarant's mind." 1 Greenl. Ev. § 158; Kerr, Hom. § 412; People v. Simpson, 48 Mich. 474, 12 N. W. Rep. 662; Fitzgerald v. State, 11 Neb. 577, 10 N. W. Rep. 495; State v. Johnson, (S. C.) 1 S. E. Rep. 510, 9 Crim. Law Mag. 451, and note. 2. The witness Olinger, who at the same time was shot in the neck and hand, remained alone all night with the deceased, and in the morning started to his own home, about a mile and a quarter distant, but returned because, as he testified, he was afraid that two persons whom he saw going from the barn along the fence, but did not recognize, would kill him. An attempt was made by the defendant to impeach this witness by showing that he had stated to one Jesse McKinney, or in his presence, that one of the men he saw coming from the barn on the morning after the shooting was the defendant, but, on an objection by the state, the evidence was rejected. The object of this proposed evidence was to impeach the witness, by showing that he had made statements out of court inconsistent with his testimony. But, if the court below was in error in supposing that a proper foundation had not been laid for its admission, the exclusion of the evidence was harmless error, because the witness admitted on the stand that he had so stated to different persons; and when we remember that he claims to have recognized the defendant, at the time of the shooting, as one of the persons who so foully attempted to murder him, it is not surprising that on the following morning, alone in the mountains, a mile and a quarter from home, and suffering from his wounds, the boy should have thought or imagined that one of the persons he saw coming from the barn, as he supposed, was the defendant. 3. The next assignment of error is in the re use the pistol and cartridges found on the person of the defendant at the time of his arrest, and admitted in evidence, for the purpose of testing the shooting capacity of the pistol, by shooting into a section of a log taken from the cabin in which the deceased was shot, for the purpose of showing that a ball from the pistol would penetrate much further into the wood than the evidence showed was done by the pistol that probably did the killing. The evidence tends to show that about 11 o'clock on the night of the shooting, after the deceased and the boy Olinger had gone to bed, two persons came to the house, and knocked on the door, when deceased told them to come in, which they did by bursting the door, and said: "Money or your brains." The deceased told them he had no money, whereupon they demanded jewelry, which being refused, they commenced firing, and fired about 10 or 12 shots in all, some taking effect in the wall of the house. It was not shown from what points or position in the room any of the balls imbedded in the walls were fired, or that the cartridges were the same as those in evidence, or that the distance from which the shots were fired was known, or that any of the conditions under which it was proposed to experiment with the pistol existed at the time the shots were fired into the wall. Without such a showing, it is manifest there was no error in the ruling of the court. Experiments of this nature, to furnish data for certain inferences, must be based, as nearly as possible, upon conditions and circumstances like those existing in the case on trial; otherwise, the tendency is to mislead and confuse the jury. State v. Justus, 11 Or. 179, 8 Pac. Rep. 337; Com. v. Piper, 120 Mass. 185. It was not shown in this case that there was any similarity in the conditions under which it was proposed to make the experiment and those existing at the time the shots were fired into the wall, and hence there was no error in the ruling of the court. 4. The next assignment of error is in the refusal of the court to allow the defendant to prove by A. J. Denniston, Henry James, Ed. Brown, and other witnesses, that the said A. J. Denniston has a son by the name of Walter, about 20 years of age, light complexion, and about the same stature of the defendant, who, in the month of November prior to the murder, threatened to kill the deceased because of some trouble with his father, and on the morning of the 10th of November, between the hours of 3 and 4 o'clock, Walter, accompanied by another person, of about his own age, came down from off the mountain, from the direction of Fletcher's mill, stopped at the warm springs, about five miles from deceased's cabin, and called his father out of bed, and told him that he had come to see him for the last time,-"that he had killed that son of a bitch of a Petre, and his kid;" that at this time, Walter Denniston had on clothing corresponding with that worn by the defendant at the time of the king, as described by the boy Olinger; that, immediately after making this statement to his father, Walter and his companion left the warm springs, and his present whereabouts is unknown. This testimony was, we think, clearly inadmissible. There was no evidence whatever tending to connect Walter Denniston with the commission of the crime, excepting his own admission and his previous threats, and that he was seen five miles from the place of the homicide four or five hours after it was committed, coming from the direction of Fletcher's mill, wearing clothing corresponding with that worn by one of the guilty parties, as described by the boy Olinger. Such evidence affords no reasonable presumption or inference as to the guilt or innocence of the defendant, and is res inter alios acta, and the merest hearsay. In Greenfield v. People, 85 N. Y. 76, the defendant, under an indictment for murder, and against whom the evidence was only circumstantial, offered in evidence a letter written by one Royal Kellogg to his brother, which, among other things, contained the following language: "Tell me all about the murder. If you think it all right, tell them I am in Lafayette, and if they want me they can come and get me,"--and, in connection with this letter, also offered the testimony of a witness to show the declarations of Kellogg and his brother and another person, made a short time after the murder, at a place about three-fourths of a mile distant. The witness was awakened by the barking of a dog about 4 o'clock in the morning, and on looking out of the window he recognized the two Kelloggs and one Taplin, who had a double barreled gun, and a bag with something in it. After testifying to the suspicious conduct of the parties, the prisoner's counsel offered to prove by the witness that Taplin said to the Kelloggs, "You were damned fools to do it," and one of the Kelloggs replied, "If we had not done it, we should all have been hung." It was held this evidence was properly excluded; Miller, J., saying: "Even if this letter could be regarded as a confession of Kellogg that he committed the murder, it was only the declaration of a third party, -merely hearsay testimony,-and upon no rule of evidence admissible. If such declarations were competent upon any trial for homicide, they would tend clearly to confuse the jury, and to divert their attention from the real issue. The letter did not tend to establish that Kellogg committed the offense, was not a part of the res gestae, and in no sense relieved the prisoner from the charge for which he was upon trial, or raised any presumption that Kellogg was the guilty party. Confessions of this character are sometimes made to screen offenders, and no rule is better established than that extra v.33P.no.11-37 judicial statements of third persons are inadmissible. ** * While evidence tending to show that another party might have committed the crime would be admissible, before such testimony can be received there must be such proof of connection with it, such a train of facts or circumstances, as tend clearly to point out some one besides the prisoner as the guilty party. Remote acts, disconnected, and outside of the crime itself, cannot be separately proved for such a purpose. In considering the question, we have carefully examined the numerous authorities cited to sustain the position that the evidence was competent, and none of them hold that under such circumstances it could lawfully be received, and it was neither admissible alone, nor in connection with the letters referred to." In West v. State, 76 Ala. 98, it was held that the admission or confession of another person, made on his deathbed, that he committed the crime, is mere hearsay, and not admissible as evidence in the case. In Walker v. State, 6 Tex. App. 576, on an indictment for murder, it was held incompetent for the accused to prove that a very short time before the homicide a person other than the accused made threats to take the life of the deceased, the court saying: "The issue of the trial was the guilt or innocence of the defendant on trial. Evidence is admissible if it tends to prove the issue, or constitutes a link in the chain of proof; and this seems to be the limit, and excludes all evidence of collateral facts, or those which are incapable of affording any reasonable presumption or inference as to the principal fact or matter in dispute, and for the good reason stated for the rule by Mr. Greenleaf, that such evidence tends to draw away the minds of the jury from the point in issue, and to excite prejudice, and mislead them. 1 Greenl. Ev. §§ 51, 52." So, in the case of State v. Davis, 77 N. C. 483, which was also an indictment for murder, the prisoner proposed to prove by one Peck "that George Nicks had malice toward the deceased, and had a motive to take his life, and opportunity to do so, and had threatened to do so before the court." He further offered to prove by one Rice "that one Peck took a gun, and went in the direction of the house of the deceased, with the threat that he was going to kill the deceased, some time before the deceased was killed." This evidence was held incompetent, the court saying: "Both exceptions are untenable, and have been repeatedly SO held by this court, the first, because they are declarations of a third party, and are res inter alios acta, and have no legal tendency to establish the innocence of the prisoner; and the second, for the same, and the additional reason that the time is too vaguely and indefinitely set forth. * * * Such evidence is inadmissible because it does not tend to establish the corpus delicti. Unquestionably, it would have . been competent to prove that a third party killed the deceased, and not the prisoner. But this could only have been done by proof connecting Peck with the fact; that is, with the perpetration of some deed entering into the crime itself. Direct evidence connecting Peck with the corpus delicti would have been admissible. After proof of the res gestae constituting Peck's alleged guilt had been given, it might be that the evidence which was offered and excluded in this case would have been competent in confirmation of the direct testimony connecting him with the fact of killing. No such direct testimony was offered here. It is unnecessary to elaborate, as the questions of evidence here made have been fully discussed and decided by this court in many cases." Indeed, there seems to be an absolute unanimity in the decisions, in holding that it is going far enough in favor of the accused to allow him to exculpate himself by showing the fact of another's guilt by some appropriate evidence, directly connecting that person with the corpus delicti; and, in criminal cases, mere evidence of confession of guilt by a third person, or of threats made by such person against deceased, is clearly inadmissible. Bish. Crim. Proc. § 623; Whart. Crim. Ev. § 225; Whart. Hom. § 693; 4 Amer. & Eng. Enc. Law, 866, and authorities cited; State v. Beaudet, 53 Conn. 536, 4 Atl. Rep. 237; Woolfolk v. State, 81 Ga. 551, 8 S. E. Rep. 724; Id., 85 Ga. 69, 11 S. E. Rep. 814; State v. Bishop, 73 N. C. 44; Rhea v. State, 18 Tenn. 257. The other assignments of error in the record have been carefully examined and considered, and we find no error therein. The judgment of the court below will therefore be affirmed. (18 Colo. 525) In re PACKER. (Supreme Court of Colorado. June 19, 1893.) HOMICIDE-CONSOLIDATION OF CASES-JUDGMENT -SENTENCES. 1. Five separate indictments for homicide were found against defendant, and the cases were consolidated and tried together. A verdiet was returned finding him guilty of manslaughter, as charged in the indictment, for the killing of B.; further finding him guilty of manslaughter, as charged in the indictment, for the killing of N.; and so for the remaining three indictments. There was but one judgment and sentence, providing for imprisonment for a continuous term of 40 years: "Eight years, for the voluntary manslaughter of S., case No. 237; on the expiration of said term of eight years, eight further years, for the voluntary manslaughter of B., case No. 238;" and so on for the remaining three cases. Held, that this was sufficient, without a separate entry of judgment in each case. 2. Under Mills' Ann. St. § 3453, providing that when any convict shall have been committed under several convictions, with separate sentences, they shall be construed as one continuous sentence, said section having been passed as part of Gen. Laws 1877, p. 684, providing for a deduction from sentence for good behavior, the deduction to increase one month per year until it amounts to six months a year, a sentence may be imposed to commence in the future at the expiration of another sentence. Petition of Alfred Packer for a writ of habeas corpus. Writ denied. The other facts fully appear in the following statement by HAYT, C. J.: At the April term, A. D. 1883, of the district court of Hinsdale county, the grand jury returned five separate indictments for murder against this petitioner. The cases were afterwards docketed in the district court, numbered, respectively, 237, 238, 239, 240, and 241. The indictments all charged that the offenses were committed by the prisoner in Hinsdale county, on the 1st day of March, 1874. In the first of these indictments he was charged with the murder of Israel Swan; in the second, with the murder of Shannon Wilson Bell; in the third, with the murder of Frank Miller; in the fourth, with the murder of George Noon: and in the fifth, with the murder of James Humphrey. At the same term of court to which the indictments were returned, the petitioner was put upon trial for the murder of Israel Swan. As a result of this trial, a verdict of guilty as charged in the indictment was returned, the jury further finding that the killing was premeditated. Upon the verdict the prisoner was thereafter sentenced to be executed. Thereupon a writ of error was sued out from this court. As the result of the proceedings in this court, the judgment of the court below was reversed, the reversal being based upon the ground that the sections of the Criminal Code which authorized and prescribed the punishment for murder were repealed by the legislature, without a saving clause, after the crime was committed, but before the conviction complained of. After that case had been remanded to the district court of Hinsdale county, all the causes were taken, by a change of venue, to the county of Gunnison. In the County of Gunnison the causes came on for hearing at the regular July term, 1886, and, upon the motion of the district attorney, they were consolidated for trial. Thereafter the causes were called for trial, and all submitted to one jury. As a result of that trial, the jury returned the following verdict: "We, the jury, find the defendant guilty of voluntary manslaughter, as charged in the indictment, for the killing of Shannon Wilson Bell; and we further find defendant guilty of voluntary manslaughter, as charged in the indictment, for the killing of George Noon; and we further find defendant guilty of voluntary manslaughter, as charged in the indictment, for the killing of Israel Swan; and we further find defendant guilty of voluntary manslaughter, as charged in the indictment, for the killing of Frank Miller; and we further find the defendant guilty of voluntary manslaughter, as charged in the indictment, for the killing of James Humphrey." Motions for new trial and in arrest of judgment were made and overruled. Thereupon the prisoner was sentenced as follows: "Therefore, it is ordered and adjudged by the court that the said defendant, Alfred Packer, be taken from the bar of this court to the common jail of Gunnison county, from whence he came, and from thence, by the sheriff of said Gunnison county, with all convenient speed, to the penitentiary of this state, at Canon City, and be delivered to the warden or keeper of said penitentiary; and the said warden or keeper is hereby required and commanded to take the body of the said defendant, Alfred Packer, and confine him in said penitentiary, in safe and secure custody, for and during one continuous term of forty (40) years from and after the delivery thereof, which said term is divided and made more specific as follows, to wit: Eight years, for the voluntary manslaughter of Israel Swan, case No. 237; on the expiration of said term of eight years, eight further years, for the voluntary manslaughter of Shannon Wilson Bell, case No. 238; at the expiration of said last-mentioned term, for the term of eight years additional, for the voluntary manslaughter of Frank Miller, case No. 239; at the expiration of said last-mentioned term, for the period of eight years additional, for the voluntary manslaughter of George Noon, case No. 240; at the expiration of the said last-mentioned term, for the period of eight years additional, for the voluntary manslaughter of James Humphrey, case No. 241, --at hard labor, and that he be thereafter discharged." The prisoner, having served out sentence in case No. 237, now applies to this court to be discharged, upon habeas corpus, from further imprisonment. John R. Smith, for petitioner. Eugene Engley, Atty. Gen., and H. N. Sale, for the People. HAYT, C. J., (after stating the facts.) It is contended that the district court had no power to order a consolidation of the five cases. It is to be noticed, in limine, that only jurisdictional questions can be reviewed in this proceeding by habeas corpus, leaving the parties aggrieved by any step that is merely erroneous to the usual remedy by a writ of error. Ex parte Farnham, 3 Colo. 545. Whether it was error to consolidate these cases for trial, and submit them to one jury, are questions that are not properly before us upon this application. The district court having jurisdiction of the defendant, and jurisdiction of the offenses charged, when the application for the consolidation was presented, it had jurisdiction to determine that application. If it erred in its conclusion, such error in no way affected its jurisdiction. In other words, it had power to make an erroneous order, as well as a rrect one. We do not understand counsel to contest this well-established principle. They claim, however, the right to have reviewed in this proceeding the final judgments and the power of the court to enter the same, and say that, incidentally, the whole record is before us, for the purpose of deciding whether the district court had power to enter the several judgments and inflict the accumulated punishments ordered. A specific objection made to this record is that it shows, as it is claimed, that the five cases were consolidated for trial under No. 237, and that in that case only was a trial had, and a verdict of guilty rendered; hence it is argued that but one judgment could properly be entered, and but one sentence imposed. Without doubt, the usual and better course, where cases are consolidated for trial, is, after the trial is over, to enter judgment in each case, the same as if separate trials had been had. Parker v. People, 13 Colo. 155, 21 Pac. Rep. 1120. An examination of the record in this case discloses that practically this result was reached by the district court. That the jury intended to and did convict the defendant for the five separate offenses as charged is evident when we consider the verdict in connection with the five indictments. In the first indictment he was charged with the killing of Shannon Wilson Bell, and in the second, with the killing of George Noon, etc. The jury, in their verdict, find him guilty of voluntary manslaughter, as charged in the indictment, for the killing of Shannon Wilson Bell; and "we further find defendant guilty of voluntary manslaughter, as charged in the indictment, for the killing of George Noon;" and like language is used with reference to the remaining three indictments. There is no escape from the conclusion that the jury intended to and did, by their verdict, find him guilty upon each indictment. The judgment is equally specific; for, notwithstanding the fact that the sentence provides for impris onment for a continuous term of 40 years, this term is divided and made more specific as follows: "Eight years for the voluntary manslaughter of Israel Swan, case No. 237; on the expiration of said term of eight years, eight further years, for the voluntary manslaughter of Shannon Wilson Bell, case No. 238;" and so on for the remaining three cases. Considering the sentences in the light of the verdict and the indictments, they are free from uncertainty or ambiguity, the sentence in each case being for a term of eight years. It is contended, however, that the court had no power to impose any sentence commencing to operate in futuro. It is upon this claim that counsel really rely for the discharge of the defendant, the other points being urged simply for the purpose of showing that upon the record the court had no power to inflict any punishment after the first. It is admitted that our statute does not, in terms, require sentence of imprison |