Radford v. State , 33 Tex. Crim. 520 ( 1894 )

Murder of the first degree, with the death penalty. The indictment charged the murder of Lippe Lipschitz. Mr. and Mrs. Lipschitz were wounded on the same night and in the same building. Both died from the effects of the wounds. The State proposed to prove by the witness Mrs. Freeman, that about three weeks after the murder of Lippe Lipschitz, Mrs. Lipschitz spoke of dying, and said she knew that she must die. Speaking of the murderer of her husband, she said that he was a negro man; that he was neither white nor black, rather tall; and that the negro taken into her presence by the officer looked like the same man. Objection was made to this testimony, on the ground that the dying declaration of Mrs. Lipschitz was hearsay, and inadmissible for any purpose; that defendant was not on trial for the murder of Mrs. Lipschitz, and her declaration was that of a third party. The objection was overruled, and the evidence admitted. This matter is presented here for revision by a proper bill. Our statute provides, that "the dying declaration of a deceased person may be offered in evidence either for or against a defendant charged with the homicide of such deceased person." Code Crim. Proc., art. 748. This statute settles the question against the admission of the dying declarations of Mrs. Lipschitz. We will, however, add some common law authorities: 3 Russ. Crimes, 5 ed., 359; Rex v. Tinckler, 1 East P. C., 354. See also Brown v. The Commonwealth, 73 Pa. St., 321; The State v. Bohan, 15 Kan. 407; Krebs v. The State, 3 Texas Crim. App., 348.

On the morning after the murder, the officers had orders to arrest and detain all the idle persons in the city. Defendant was arrested by Policeman Hall, and in his possession was found a door key, which the officer tried in the door of the Lipschitz house, leading into the room where Lipschitz was murdered. The key fitted the lock on said door, and would lock it easily. The officer looked around the house, and could not find any other key that would fit the lock in said door. This being in evidence, defendant's counsel asked the witness if, when he found the key would fit the Lipschitz door, and when defendant was first afterwards charged with the murder, he did not mention to the defendant the fact that the key fitted the door lock, and if he did not ask defendant how he came to have said key, and if defendant did not then and there say "that the key was the property of one Henry Wilson, who lived in Dallas city, and that he had rented a room in Dallas from said Wilson in December, 1893, who furnished him a key to said room, and that the key found by Hall in his possession was the same key, and that when he left Dallas he carried the key off with him." The State objected, and the objection was sustained and the evidence excluded. We are of opinion that the explanation of appellant as to his possession of the key was admissible evidence.

The same witness, Hall, was permitted to testify, that he took the defendant out of jail down to the Lipschitz residence, and into the presence of Mrs. Lipschitz. Objection was made by defendant, on the ground that it was compelling defendant to testify against himself, through his acts, while under arrest. The objection was overruled. As the declarations of Mrs. Lipschitz are not admissible, this matter will not be presented on another trial. The indictment simply charged that the murder was with malice aforethought. The court charged the jury upon murder, upon express malice aforethought, and also upon murder committed in the perpetration or attempted perpetration of robbery and burglary. It is contended for appellant, that thus he has been indicted for one species of murder, and was tried for another and different kind of murder. The proposition is, that if the State, to show murder in the first degree, relies upon the fact that the homicide was committed in the attempted perpetration of robbery or burglary, that the indictment must so charge. The writer thinks that the proposition is correct, but the decisions of this court have settled the question the other way.

For the reasons indicated, the judgment is reversed and the cause remanded.

Reversed and remanded.

Judges all present and concurring.