
    State of Iowa v. Jack Luther, Appellant.
    1 Evidence: dying declarations. To render a statement admissible as a dying declaration it must have been made under the full belief of impending death.
    Under the showing in this case the statement of deceased is held admissible as a dying declaration.
    2 Criminal law: instruction: included offenses. Where the evidence is conclusive that wounds inflicted produced a condition resulting in death the defendant is guilty of manslaughter, if guilty at all; and no* error is committed by omitting to submit to the jury included offenses.
    
      Appeal from Wapello District Court. — Hon. C. W. Vermillion, Judge.
    Wednesday, February 8, 1911.
    
      The accused was convicted of manslaughter, and appeals.
    
      Affirmed.
    
    
      L. C. HendershoU, for appellant. '
    
      H. W. Byers, Attorney-General, and Chas. W. Lyon, Assistant Attorney-General, for the State.
   Ladd, J.

Shortly after Pack Paulkerson had gone, or when about to go, to bed in a room at the rear of, and with a door opening into, King’s barbershop, the accused entered and informed King that his groceries had been stolen, and later' went into the bedroom and inquired of Paulkerson if he knew anything about them. After some parley both came into the shop, where the accused stabbed Paulkerson several times. This occurred at about 11:30 o’clock, in the evening of Saturday, February 12, 1910, and death resulted on the following Tuesday morning. On the day before his death Paulkerson made a statement, and' the error first argued is the ruling by which it was received in evidence as his dying' declaration; it being insisted that the evidence failed to show that when making it he was under the sense of impending death and in the full belief that he could not recover.

The wound which proved fatal “extended in the right side of the chest down into the right bronchial tube approximately four inches into the tube, so that the air was coming out from the lungs through the chest holes.” 'Death appears to have been due to pneumonia, caused by hemorrhages in the lungs and “drawing in all the air into the lungs directly through this wound in the chest.” He had refused to be taken to the hospital until about nine o’clock Sunday morning, and the physicians agreed that this delay lessened his chances for recovery. The attending physician testified that on Monday decedent had said to him that he knew he was going to die. Whether this was in the morning or in the afternoon subsequent to the making of the statement he could not tell. The chief of police testified thiat decedent told him immediately before making the statement that the doctor said “there was not much chance for him to get well;” that “he talked along the lines that he thought he could not get well;” that he said “he was feeling awful bad, and it was hard for him to breathe or cough, or anything like that;” that he was asked whether he expected to die and answered “Yes;” that the doctor told him he didn’t think he could get well; that he, witness, told him that the physician had said he could not get well, to which decedent answered that “there was not much show for him,” and that “he had already been to the undertaker,” which the witness construed as meaning that he considered himself as dead. He died the following day. This evidence, together with that of the physician that there was no possibility of recovery, we think, justified the district court in finding that the decedent when making the statement concerning the transaction was laboring under the apprehension of impending death, and in the full belief that he could not recover. See State v. Phillips, 118 Iowa, 660; State v. Dennis, 119 Iowa, 688.

II. The court did not submit to the jury any of the included offenses, and of this complaint is made. The evidence showed conclusively that the wounds inflicted by the defendant caused death, and, this being so, Idle defendant was guilty of manslaughter, 01, should have been 'acquitted. State v. Sterrett, 80 Iowa, 609; State v. Cater, 100 Iowa, 501; State v. Hoot, 120 Iowa, 238. Counsel suggest that had decedent consented to be taken to the hospital immediately he -might have recovered, but the evidence goes no further than to indicate that his chances of recovery would have been better. The evidence is conclusive that the wound inflicted produced the condition which resulted in death, and this was all that was essential to render defendant responsible for the crime of taking decedent’s life. State v. Wood, 112 Iowa, 411; State v. Edgerton, 100 Iowa, 63; State v. Morphy, 33 Iowa, 270. Affirmed.  