King v. State , 34 Tex. Crim. 228 ( 1895 )

This is a conviction for murder of the first degree, with the death penalty assessed. Upon the trial, appellant filed his first application for a continuance, which showed that appellant desired the testimony of H.H. Parker, who resided in Bexar County, and Sam Smith, whose residence was not known, but who was believed to be in Dallas County, and Andrew Harrison, who resided in Cherokee County. The appellant was indicted on August 20, 1894, and was arrested immediately thereafter. The defendant was in custody on this charge from November 13, 1894, and no act of diligence is shown until December 1, 1894, when, for the first time, he caused attachments to issue in this case. If, however, it be conceded that the defendant was not put upon notice of the importance of this testimony until after the first trial of this case, which occurred November 26, 1894, being at the same term of the court, it does not appear to us that the testimony as to Parker was material, or that the testimony of Smith, if it could have been procured at all, was probably true, and it is not disclosed what defendant expected to prove by the witness Harrison. The defendant states as to Parker, that he expected to prove by him that there was another man with him when the bottle of mucilage was bought from said Parker, in Tyler, Texas, and that defendant did not buy said mucilage; but the fact that the bottle of mucilage in question was subsequently found in defendant's possession at Story's, a few miles from Tyler, where he was working, renders it immaterial whether he bought it himself, or some one who was with him bought it for him. As to witness Smith, it is shown that he was an ex-convict, and it is not shown that he had been pardoned, or would have been permitted to testify could his attendance have been procured; and it is exceedingly improbable that this witness would have taken upon his own shoulders the full responsibility for the murder of Dr. Drewry, and would have exculpated the appellant, as alleged in his motion for continuance. Besides, the testimony in the case shows, if said testimony could have been procured, that there was no probable truth in it; and also the residence of this witness is not shown, and no reasonable probability is shown that his attendance could have been procured by a continuance of the case.

The appellant objected to the introduction of the witness Carroll Smith, because he was not placed under the rule, which had been invoked by the State. The judge's explanation to the bill shows, that at the time the witnesses were placed under the rule, it was stated that there were other witnesses not present who would be sworn and placed under the rule as soon as they came in. Two witnesses were examined before Smith came in and was sworn. On his voir dire, it was shown that he had heard none of the testimony of the other witnesses, and we fail to see any abuse of the discretion of the court in permitting him to testify.

The testimony of this witness as to the dying declarations of deceased was also objected to, upon the ground that deceased was not at the time of making such declarations conscious of approaching death. The deceased was shot late Saturday evening, and the declaration proposed to be adduced from the witness was made to him some time Sunday evening. The witness himself says that the deceased was suffering greatly, and told him during the conversation that he was bound to die, but he could not remember whether this statement was made before or after he told him how he was shot. The deceased had, however, to a number of persons, from the time he was shot up to the time this statement was made, stated that he was fatally shot, and was bound to die, and he never at any time expressed any hope of recovery; and in our opinion, it does not matter whether or not he stated to witness Smith that he was conscious of approaching death, in order to have rendered this statement admissible. The foregoing applies to the testimony of the witness Reagan as to dying declarations by deceased. Hunnicutt v. The State, 18 Texas Crim. App., 498; Rex v. John, 2 Ben. H. Lead. Crim. Cases, 393.

As to the objections urged against the admissibility of the testimony of the witness Bailey, it appears that he was, at the time the fatal shots were fired at Wells, from one-fourth to one-half mile distant from the scene of the homicide, and heard the shots. The engine immediately ran back from the scene of the homicide to Wells, and in a very few minutes witness, with others, took passage, and ran down to where deceased was. They found him struggling and suffering intense pain. He immediately told them he was shot in the back, the ball penetrating his bowels, and that he could not recover, that he was killed, and then told them of the circumstances attending the shooting, describing the person who did it. This evidence was clearly admissible, both as a dying declaration and as a part of the res gestæ. Lewis v. The State, 29 Texas Crim. App., 203, and authorities there cited.

The defendant also contends that this cause should be reversed, because the evidence is not sufficient to support the verdict of the jury. The testimony in this case is purely circumstantial, but it is so complete as to have connected the defendant by a chain of circumstances pointing to him as the guilty perpetrator of one of the most diabolical and cold-blooded murders that has ever stained the annals of this State. The object of this murder appears to have been robbery, and it was planned for weeks before its consummation. On the part of the defendant it was well and skillfully planned, and all his movements conducted so as to avoid and escape detection. But, notwithstanding this, the State was enabled to bring to bear an array of facts establishing to a moral certainty, and excluding every reasonable hypothesis consistent with the defendant's innocence, that the defendant, and he alone, was guilty of this crime. He was ably defended in the court below. The court gave him a fair and impartial charge, and an intelligent jury of his own selection, responding to their obligations, found him guilty of the highest crime known to our code, and assessed his punishment at death; and we find no error in the procedure leading thus to conviction, and the judgment is affirmed.

Affirmed.

Judges all present and concurring.