ants, among other things, spoke of moving for a new trial, and in other ways expressed dissatisfaction with the decision and judgment. We are of opinion that the true construction of the statute (section 659, Code Civil Proc.) is that a party intending to move has a right to wait for a notice in writing (section 1010, Code Civil Proc.) of the decision from the adverse party before giving notice of intention to move for a new trial, and that he is entitled to such notice of decision before he is called on to act, although he is present in court when the decision is rendered, and waives findings and asks for a stay of proceedings on the judgment. This is much the best rule. It is more certain and definite, prevents controversies which, under any other construction, would be likely to arise, and, above all, accords. in our opinion with the intention of those enacting the statute. Carpentier v. Thurston, 30 Cal. 125; Roussin v. Stewart, 33 Cal. 210; Sawyer v. San Francisco, 50 Cal. 375.

A similar question arose in New York on a section (332) of its Code of Procedure regulating appeals, by which it was provided that the appeal from the special to the general term "must be taken within thirty days after written notice of the judgment or order shall have been given to the party appealing." The court held there must be written notice of the judgment or order, in order that the 30 days shall begin to run; that it is not enough that the party have knowledge of the judgment or order; that no oral communication nor presence in court, and hearing the decision announced, or the order or judgment declared by the court, is sufficient. Fry v. Bennett, 16 How. Pr. 402, heard and decided in the superior court by BoswORTH, HOFFMAN, SLOSSON, WOODRUFF, and PIERREPONT, JJ. The opinion is an able one, and its perusal is recommended. See, also, Staring v. Jones, 13 How. Pr. 423; Valton v. National Loan Fund L. A. Soc. 19 How. Pr. 517; Rankin v. Pine, 4 Abb. 310, Sup. Ct. 2d Dist.; 7 Abb. 352; Leavy v. Roberts, 8 Abb. 310; Matter of N. Y. Cent. & H. R. R. Co. 60 N. Y. 114, 115. In Rankin v. Pine, supra, it is held that, in order to limit the right of appeal, service of written notice upon the party is necessary, even when the appeal is from a judgment entered by the appellant himself. Barron v. Deleval, 58 Cal. 95, is upon a different section of the statute than the one involved in this case, and the ruling in this case does not necessarily overrule what was held in that case. It is a singular fact that the statement of defendants was struck out before it became a part of the record. The statement is not required to be filed until it has been signed by the judge, with his certificate that it is allowed. Code Civil Proc. § 659. Code Civil Proc. § 659. When filed, and not before, it becomes a part of the record.

The order is reversed, and the cause remanded to be proceeded with according to law. So ordered.

(66 Cal. 475)

MULLER V. OHм. (No. 8,758.)

Filed March 3, 1885.

PLEADING-ACTION ON GUARANTIES.

In an action upon two guaranties in the following words: "The amount of this note to be paid out of the Park-avenue assessment money, after being collected by me," and "guarantied to be paid out of the Park-avenue assessment money after been collected by me,"-a complaint containing the averments as to each guaranty that the defendant, before the commencement of the action, had collected a large portion of such Park-street assessment, is sufficient on demurrer, and need not contain an averment that all of such Park-street assessment had been collected.

Department 2. Appeal from the superior court of the city and county of San Francisco.

H. H. Lowenthal and W. H. Fifield, for appellant.
Robinson, Olney & Byrne, for respondent.

BY THE COURT. The defendant is sued on guaranties in the following words: "The amount of this note to be paid out of the Parkavenue assessment money after being collected by me.' "Guarantied to be paid out of the Park-avenue assessment money after been collected by me." The guaranties were indorsed on promissory notes, respectively, and were signed by defendant. The complaint contains the averment as to each guaranty that the defendant, before the commencement of the action, collected more than $10,000 of the Parkavenue assessment, referred to in said indorsement.

The only point in the case is whether plaintiff can have judgment without averring that all the Park-avenue assessment had been collected. Admitting-which we do not-that the defendant would be justified in claiming that the notes were to be paid out of the last of the collections of the assessment, it is sufficient to say that it does not appear but that much of that which would in such case be due plaintiff had been collected by defendant; it may be that an inconsiderable sum remained uncollected. The complaint is sufficient, tested by demurrer. As to the defenses set up by defendant in his answer, he offered no evidence.

Judgment affirmed.

(2 Idaho [Hasb.] 83)

SUPREME COURT OF IDAHO.

PEOPLE V. DEWEY.

Filed February 17, 1885.

1. CRIMINAL LAW AND PROCEDURE-MURDER-RES GESTE.

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 gestæ.

2. SAME

REASONABLE DOUBT.

"A reasonable doubt" is not a mere possible doubt, nor is it a 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, Owyhee county.
R. Z. Johnson, for appellant.

Huston & Gray, for respondent.

MORGAN, C. J. The defendant was indicted and tried at the September term of the Owyhee county 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.:

(1) 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. Mosley, 8 Wall. 397; Rex v. Foster, 6 Car. & P. 325; Com. v. McPike, 3 Cush, 181; Thompson v. Trevanion, Skin. 402.

In the case of Insurance Co. v. Mosley, 8 Wall. 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 was 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 v. Trevanion, Skin. 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 Rex v. Foster, 6 Car. & P. 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 deceased said at the instant as to the cause of the accident was clearly admissible. PARK, J., 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 Com. v. McPike, 3 Cush. 181, the defendant was charged with killing his wife. It appears that deceased ran up stairs 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 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 gesta," 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 eye-witness. The absolute necessity of this testimony to work a conviction of a person believed to be guilty, and the nature of the declarations rendering it almost absolutely certain that the statement was true, must have entered into the consideration. The closing paragraph in the opinion of the court in the case of Insurance Co. v. Mosley, 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." As to the necessity of bringing them in under the head of res gestæ, 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 gesta. 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:

Question. How soon after the shooting was it that you heard him (the deceased) make any statement? Answer. 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 gesta. To this defendant's counsel objected. Objection was overruled, and defendant by his counsel excepted. The following is the testimony:

Question. Will you state what statements Mr. King made to you in regard to this shooting? Answer. 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 gestæ, 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 gestæ, for the purpose of showing its true character. Greenleaf says that 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 Greenl. Ev. § 108. The general rule is that declarations, to become part of the res gestæ, must accompany the act which they are supposed to characterize, and so harmonize with them as to constitute one transaction. Enos v. Tuttle, 3 Conn. 250; State v. Daugherty, 17 Nev. 376. If the declarations offered in evidence are mere narrative of a past event or occurrence, they are inadmissible. Binns v. State, 57 Ind. 46; Denton v. State, 1 Swan, 279; State v. Tilly, 3 Ired. 424. In Bland v. 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.

The declarations admitted in evidence in the case at bar were a mere narration of a part of the affray which occurred a half or threequarters of an hour before, after all danger was over, after the occur