She relies upon two bills of ex- ception, the first of which she re- served to the trial judge's ruling upon the admissibility of parol evi- dence to prove a dying declaration, was taken at the time it was made. It seems that the coroner took down in writing the dying declaration of the deceased shortly after the shoot- ing, on September 13, 1916. The de- ceased thereafter underwent treat- ment, and, his condition having much improved, the coroner, acting under the honest belief that all dan- ger of death had passed, destroyed the paper upon which was written the dying declaration. These facts, constituting a foundation, having contents of written instruments, contents of lost stroyed, may always The second bill is to the refusal Mr. Perkins, was in New Orleans, at It further appears that defend- Without expressing any opinion as to whether there was a legal cause for recusation, we believe that her right to chal- incompetency- tency of the judge on such ground 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. was also held that there are few (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. |