Allen v. State , 124 Tex. Crim. 642 ( 1933 )

The offense is murder; the punishment, confinement in the penitentiary for forty years.

It was charged in the indictment, in substance, that appellant, with malice aforethought, killed Roy King by shooting him with a gun.

Appellant was the tenant of deceased. Prior to the homicide a controversy had arisen about some rent appellant owed deceased, and appellant had been ordered by deceased to surrender the premises. According to appellant's version, he was unable to pay deceased what he owed him. He testified that deceased was persistent in his effort to collect the rent and had told him, in effect, that he was going to kill him if he did not pay him. He said deceased had taken his small boy's bicycle and held it for the rent he was due deceased. Again, appellant testified, as did his eleven years old son, that shortly before the homicide deceased destroyed a rabbit trap belonging to appellant's son and struck the boy several blows with a switch. Appellant said the whipping deceased gave his son raised two or three large welts on the boy's back. A day or two before the homicide appellant went to the district attorney, a justice of the peace, and other officers and tried to have deceased placed under a peace bond. The state's testimony was to the effect that appellant shot deceased while deceased was standing in his wagon, and that deceased was making no demonstration toward appellant at the time. Appellant testified that he armed himself and went to talk to deceased about whipping his boy. He said he had no intention of killing deceased, but carried a pistol for self-protection. Further, he said that when he asked deceased about the matter deceased cursed him and struck him with a club, knocking some buttons off of his shirt, and then reached down in his wagon as if to get a gun. He testified that he believed deceased was going to kill him, and fired for the purpose of protecting himself. He testified, further, that he did not fire a second shot because he did not want to kill deceased. Deceased was shot in the side. After receiving the wound he drove his team home, and then went to a neighbor's house and asked that he be taken to a hospital. He was carried to a hospital and operated on. He died the next day. It appears to have been uncontroverted that appellant's general reputation as a peaceable and law-abiding citizen was good.

After he had been wounded, deceased drove to his home and told his wife that appellant had shot him. After making this statement to his wife, he went with his wife to a neighbor's house and asked him to take him to the hospital. He told his neighbor that appellant had shot him. It took the neighbor 15 or 20 minutes to drive deceased to the hospital. On the way to the hospital, deceased again stated that appellant had shot him. Five minutes after being received in the hospital deceased was asked by the attending physician to tell him who shot him. He replied that appellant had shot him. The physician then asked deceased why appellant had shot him. He replied that he had asked appellant to get off of his place. At this point we quote the testimony of the physician as follows:

"He said that he had some trouble and he was trying to get him off and Mr. Allen (appellant) would not leave. He said he went down to get some wood somewhere and was hauling wood and Mr. Allen met him on the way and said he had struck his child and he said 'No, I did not strike your child.' He said that they were down there moving the lumber, and he said that he told them to get away from there and leave it alone as it did not belong to them. He said that he had not struck either child, but he did tell them to get away from there and leave it alone. And that they argued a little and Mr. Allen shot him. He told me in that conversation that he himself was not armed at that time, he said that he did not have a gun. He said that he and Mr. Allen had fussed a little about the child. He said that he had not slapped the child. He said that while he was there hauling wood Mr. Allen accused him of striking the child. He said that he told him that he had not struck the child. Then he said that Mr. Allen shot him."

The state laid no predicate for introducing the foregoing statement as a dying declaration, but offered it as res gestae. Appellant brings forward two bills of exception, complaining of the action of the court, urging that the statement was not admissible under the rule of res gestae. We deem appellant's objection to have been well taken. As heretofore pointed out, the first person deceased talked to after the shooting was his wife. Leaving his wagon, he and his wife walked to a neighbor's house, where deceased stated to his neighbor that appellant had shot him. It took 15 or 20 minutes to carry deceased to the hospital. On the way to the hospital he again stated that appellant had shot him. Five minutes after getting to the hospital he was questioned by the attending physician, and made the statement we have quoted. So far as the record reflects the matter, the declaration made to the physician was made calmly, coolly, and collectedly. It was not shown to have been made under agitation or excitement, or without break. Some of the matters embraced in the statement relate to events preceding the homicide, and not immediately attending it, indicating that such statement was disconnected from the immediate transaction, and was a statement or relation of how it occurred. In other words, the statement itself shows that there was a break in the continuity of the transaction, and that the essential characteristic of instinctiveness was lacking. See Hendrix v. State, 289 S.W. 38, and authorities cited.

The judgment is reversed and the cause remanded.

Reversed and remanded.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

ON STATE'S MOTION FOR REHEARING.