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eral rule is that the

contents of written instruments,

when lost or de-

contents of lost stroyed, may always
be proved by parol,
and the rule has been applied to a
dying declaration in the case of
State v. Rector, 35 La. Ann. 1098.
We are, therefore, of the opinion
that the trial judge's ruling is cor-
rect.

The second bill is to the refusal
of the judge to grant a new trial to
defendant, on the ground that he,
the trial judge, should have recused
himself in the case. During the
trial, while the coroner was on the
stand, it appears that the accused
discovered, from the testimony of
that officer, that at the time the kill-
ing took place, on the 13th of Sep-
tember, 1916, the trial judge, who
was afterwards elected to the bench,
was district attorney and had ad-
vised the coroner, prior to indict-
ment, as to his duties in this case.
The judge's testimony, which is an-
nexed to the bill, is in the follow-
ing words: "My recollection is that
the only discussion I had with the
coroner, and the only thing I posi-
tively remember of having advised
him, was at the time the deceased,

Mr. Perkins, was in New Orleans, at
the hospital or other infirmary, that
it was his duty to notify such place
where Mr. Perkins was that, in the
event of death, not to remove the
body until he reached there, in or-
der that he, as coroner of the Par-
ish of Assumption, could view the
body, in order to prove corpus de-
licti and to ascertain the cause of
death. The only other party that
I discussed this matter with was
the present district attorney, who
was then nominated to the office,
and who, I then knew, would have
to prosecute the case. I especially
requested him to take charge of the
investigation of this case, because I
then knew I would become the trial
judge thereof, and did not want to
put myself in a position where I
would have to be recused."

It further appears that defend-
ant, at the time she first discovered
these facts, during the trial, made
no objection to the proceeding, but
allowed the trial to continue unin-
terruptedly until after conviction.
Thereafter, on a motion for a new
trial, she raised, for the first time,
the objection that the trial judge
should have recused himself.

Without expressing any opinion

as to whether there was a legal

cause for recusation, we believe that

defendant waived

her right to chal- incompetency-

lenge the compe-

tency of the judge on such ground

when she consented to proceed with

the trial.

In State v. Arbuno, 105 La. 719,

30 So. 163, it was held that a pris-

oner on trial, under our laws, can

only exceptionally be permitted to

stand by and suffer irregular pro-

ceedings to take place and then ask

to have the proceedings reversed on

account of such irregularities.

It

was also held that there are few
exceptions to the doctrine that a
party in a cause may waive any
right which the law has given him,
even a constitutional one. See also
State v. Rose, 114 La. 1061, 38 So.
858; State v. Lee, 116 La. 608, 40
So. 914; State v. Baudoin, 115 La. 774, 40 So. 42; State v. Duncan, 118 La. 705, 10 L.R.A. (N.S.) 791, 43 So. 283, 11 Ann. Cas. 557; State v. Emile, 140 La. 832, 74 So. 163.

(142 La. 306, 76 So. 722.)

In a recent decision by this court (State v. Bordelon, 141 La. 611, 75 So. 429) the doctrine of waiver by silence and implied consent was ap

plied to an objection which might have been raised to the competency of a judge under circumstances very similar to those in the present case. We are therefore of the opinion that defendant's second ground of complaint is not supported by law.

For these reasons, the judgment appealed from is affirmed.

ΑΝΝΟΤΑTION.

Admissibility of parol evidence of dying declarations where written memorandum thereof has been lost or destroyed.

In the few cases passing on the point, it is held that parol evidence is admissible to prove a dying declaration, of which a written memorandum was made at the time, where the memorandum has been destroyed or lost. Tyree v. Com. (1914) 160 Ky. 706, 170 S. W. 33; State v. Rector (1883) 35 La. Ann. 1098; Rodriques v. State (1916) 79 Tex. Crim. Rep. 631, 186 S. W. 335; State v. Patterson (1871) 45 Vt. 308, 12 Am. Rep. 200. And see the reported case (STATE V. CLARK, ante, 1709).

In State v. Rector (1883) 35 La. Ann. 1098, in holding that oral testimony was admissible to establish the contents of a paper containing a dying declaration, the court stated that the loss of that document having first been established, and not being disputed, there was no other course to be pursued than to prove its contents by secondary evidence. Were oral testimony inadmissible in such a case, the court said, the suppression, loss, or destruction of such proof could often secure a verdict of acquittal in a clear case of felonious homicide.

In the reported case (STATE v. CLARK), the trial judge ruled that parol evidence was inadmissible to prove a dying declaration of which a written memorandum was taken at the time it was made. It seems that the coroner took down in writing the dying declaration of the victim, shortly after the shooting. The declarant thereafter underwent treatment, and, his condition having much improved, the coroner, acting under the honest belief that all danger of death had passed, destroyed the paper on which

was written the dying declaration. These facts, constituting a foundation, having first been proved, it is held that parol evidence was admissible to show the contents of the written dying declaration.

In Rodriques v. State (1916) 79 Tex. Crim. Rep. 631, 186 S. W. 335, objection was made to the admissibility of oral proof of dying declarations, which had been reduced to writing. The court held that in as much as the written statement had been lost, and proper search was shown to have been made, there was no error in admitting oral proof of the declarations.

In Tyree v. Com. (Ky.) supra, it appeared that a short time before the victim of a homicide died, a justice of the peace was sent for, and to him the dying man made a statement, which was reduced to writing and signed. The justice delivered that paper to the county attorney, and when the county attorney's office was subsequently destroyed by fire, it was contended, though not distinctly shown, that the paper containing the dying statement was destroyed along with the rest of the contents of the office. The defendant introduced the justice, and by him proved the execution of the paper and its delivery to the county attorney; but when the commonwealth, on cross-examination, attempted to prove the contents of the written statement, it was not permitted to do so over the objection of the defendant. The trial court further refused to permit the justice to testify as to the contents of the written statement, or as to what the decedent tolù

him at the time he took the statement. It was held that, on the proof of the destruction of the written statement, the court should have admitted oral testimony to prove its contents.

In State v. Patterson (Vt.) supra, the prosecution introduced a witness to prove dying declarations, who testified that he reduced the statements of the dying man to writing at the time, to preserve them, but that the

paper was lost. The court held that the fact that the witness had lost the paper containing the declarations in writing did not bear on the question of their admissibility, but only on the weight which ought to be accorded to the evidence thus given, as depending on the accuracy of the witness's recollection and his correctness in repeating from memory what the dying man had said to him. H. D. B.

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ACCIDENT INSURANCE.

See INSURANCE.

ABUSE OF DISCRETION.

See APPEAL AND ERROR, V.

2 A.L.R.–108.

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