Jones v. State , 111 Tex. Crim. 172 ( 1928 )

Offense, murder; penalty, eight years in the penitentiary.

Mitchell, the deceased, and appellant were brothers-in-law. Attracted by a shot and screams, witness Meredith, a passer-by, ran to the house occupied by deceased and appellant and found deceased shot through the leg. Deceased at this time said to witness, "Frank Jones have shot me, he shot me in the leg. If I get up from here, I will get him. He shot me for nothing." This statement was admitted without objection. The time of its occurrence was about five or six o'clock in the afternoon and the next morning early another witness talked to deceased and appellant offered to prove by such witness that deceased at that time told him the shooting was an accident. This proferred statement occurred about twelve hours after the shooting, was clearly not a part of the main transaction, and was lacking in the elements which rendered it admissible as res gestae. It is insisted, however, that it was admissible as impeaching evidence of the statement of deceased made the night before, quoted above.

Such a statement would have been admissible to impeach a dying declaration of deceased. Hamblin v. State, 34 Tex. Crim. 368. Branch's P. C., Sec. 1868. There is no claim made, nor any basis for such a claim, that the quoted statement of deceased was a dying declaration or that the offered testimony was such. The question presented is whether or not a res gestae statement can be impeached by proof of a contradictory statement made some twelve hours later to a third party and coming under none of the rules which made it admissible as original evidence. Appellant seems to insist that the question is governed by the same rules which apply to dying declarations.

There exists an obvious distinction between a dying declaration and a res gestae statement. In the one case a sense of impending death takes the place of an oath and the law regards the declarant as testifying, while in the other, it is the event itself which speaks. The one may therefore be impeached as the evidence of any witness may be, but the other is inanimate. It is the transaction speaking as distinguished from the witness. Res gestae is in law regarded as the actual facts expressing themselves through the mouth of a witness. Reasons underlying and which permit the admission of res gestae statements preclude the idea that they may be impeached by proof of contradictory statements of declarant made at a time and under circumstances which render them hearsay. The following quotations from the rules and principles governing the admission of res gestae statements will illustrate this:

"The general principle is based on the experience that, under certain external circumstances of physical shock, a stress of nervous excitement may be produced which stills the reflective faculties and removes their control, so that the utterance which then occurs is a spontaneous and sincere response to actual sensations and perceptions already produced by the external shock." Wigmore's Evidence, Sec. 1747.

"The utterance must have been made while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance." Wigmore's Evidence, Sec. 1750 (b).

"The admissibility of res gestae statements is not dependent at all upon the veracity of the declarant because he is not regarded as a witness but as merely the passive instrument through which the event itself speaks." Encyclopaedia of Evidence, Vol. 11, p. 294.

"In some cases the res gestae principle is distinguished from the principle involved in the admission of dying declarations. In the latter the apprehension of immediate death takes the place of the oath, while in the former it is the spontaneity of the statement and the fact that it is the transaction itself speaking which renders the declaration admissible. In one the declarant is regarded as a witness, the truth of whose declaration is guaranteed by the effect on the mind of declarant of the realization of approaching death. In the other declarant is not looked upon as a witness but merely as the instrument through which the transaction voices itself." Encyclopaedia of Evidence, Vol. 11, p. 296.

As further illustrating this rule, see Branch's P. C., p. 53. Kenney v. State, 79 S.W. 817.

In the admission of res gestae statements, the Courts have overridden almost all other rules of evidence and even the statute itself. It has been held that the res gestae statements of the wife against the husband are admissible. Cook v. State, 22 Tex.Crim. App. 511. The res gestae statements of one under arrest, though not warned, are admissible. Powers v. State, 23 Tex.Crim. App. 42. The res gestae statements of a convict incompetent to testify under the statute have been held admissible. Neely v. State, 56 S.W. 625. As further illustrating the rule under discussion, see Corpus Juris, Vol. 16, pp. 641, 577-578. Tomerlin v. State, 26 S.W. 66. Clements v. State, 294 S.W. 590.

An analysis of the cited authorities and those which support the text quoted above demonstrate, we think, conclusively that a declarant making a res gestae statement is not regarded as a witness and we think is therefore not subject to impeachment as in ordinary cases. The offered testimony being hearsay the Court's action in refusing to admit same was in our opinion correct.

It seems the Court in his charge made out a form of verdict in blank for the jury. The verdict was written out on the Court's charge in one of these blanks and returned into Court. No exception was taken to the reception of this verdict by the Court. Subsequently in motion for new trial complaint was made of the action of the Court in receiving this verdict written as it was into the charge of the Court by filling in the blanks. Under the recited circumstances no error is shown. Lee v. State, 181 S.W. 728.

In view of the Court's qualifications to appellant's remaining bills of exception, they manifest no error in our opinion, and will not be discussed.

Finding no error in the record, the judgment is affirmed.

Affirmed.

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 MOTION FOR REHEARING.