The opinion
*236 FLEMING, J., Concurring.
I suspect that in the criminal prosecution the ruling excluding the dying declaration of the husband may have been erroneous and at odds with the policy of Evidence Code section 1242, which recognizes dying declarations of the victim as evidence of the cause and circumstances of his death. However, that ruling has long since become final and is not reviewable in this civil proceeding. The controlling fact here is respondent’s acquittal in the criminal proceeding. Under Probate Code section 258 such acquittal forecloses further examination of respondent’s conduct in connection with her husband’s death and compels affirmance of the judgment.
A petition for a rehearing was denied March 29, 1978, and appellants’ petition for a hearing by the Supreme Court was denied April 26, 1978.