State v. Foot You

• Court: Oregon Supreme Court
• Writing for the Court: [24 Or. 75] BEAN, J.
• Citation: State v. Foot You, 24 Or. 61, 33 P. 537 (Or. 1893)
• Decision Date: 19 June 1893
• Parties: STATE v. FOOT YOU.

33 P. 537

24 Or. 61

STATE v. FOOT YOU.

Supreme Court of Oregon

June 19, 1893

On rehearing. Petition denied.

For report of decision on appeal, see 32 P. 1031.

BEAN, J.

A petition for rehearing has been filed, in which it is claimed that the dying declarations of the deceased were inadmissible in evidence, because, as argued, they contain merely his opinion as to who did the shooting. The rule is well settled that dying declarations must relate to such facts only as the deceased would have been competent to testify to if sworn as a witness in the case, and not to mere matters of opinion. The test is whether, if living, the party making the declaration would have been permitted, if called as a witness on the trial, to have testified to those things contained in the declaration. Applying this rule to the case at hand, the evidence was clearly competent. The first statement of the deceased was: "I was shot in the back, and could not see the man that shot me, but I caught a glimpse of him as I fell, and I think that I would know him if I see him." On the following day, when the defendant was taken to the hospital for identification, the deceased, after seeing him made another statement, in which he said: "I recognize the defendant, Don Foot, [Foot You,] as the man whom I first spoke to when I went into the saloon. He is the stout man...