McDougal v. State , 81 Tex. Crim. 179 ( 1917 )

On the first appeal of this case, reported in 79 Tex. Crim. 254, 185 S.W. Rep., 15, precisely the same question was then raised that is now raised on this appeal as to the impeachment of Mrs. McDougal, appellant's wife. The State in cross-examination of her, for the purpose of laying a predicate to impeach her, was properly permitted to ask her if when she met Isom Vickery and his wife (deceased's son and his wife) and he asked, "Who killed papa?" if she did not reply: "Ira killed your papa. He killed him because he sued him, and I done everything I could to keep him from doing it"; and when she denied making such reply, the State was then properly permitted to impeach her by Isom Vickery and his wife, in which they testified that Mrs. McDougal was asked said question and made said reply. All this was for the purpose of laying a predicate to impeach and impeaching her by the testimony of Isom Vickery and his wife. As stated, this identical question was the one decided in this case by this court on the first appeal. It was fully and thoroughly considered both when the original opinion was handed down and again on appellant's motion for a rehearing by this full court as then constituted, and without any difference of opinion or any dissent from any member, the said proceedings were held legal. I have no doubt of the correctness of that holding, and so far as I am concerned adhere to it and reaffirm it.

Said statement by her to Isom Vickery and his wife, as they swore, was, at most, but a shorthand rendering of the facts, which heretofore has always been held admissible. 1 Branch's Ann. P.C., sec. 132; Miller v. State, 18 Texas Crim. App., 232; Powers v. State, 23 Texas Crim. App., 42; Fulcher v. State, 28 Texas Crim. App., 465; Meyers v. State, 37 Tex.Crim. Rep.; Williams v. State, 60 Tex.Crim. Rep..

Again, this court has heretofore held that a dying statement by a deceased, such as that he was "killed for nothing" or "shot without cause," and other like statements, was a shorthand rendering of the facts and not a mere opinion, and admissible. Roberts v. State, 5 Texas Crim. App., 141; Pierson v. State, 21 Texas Crim. App., 14; Sims v. State, 36 Tex.Crim. Rep.; Connell v. State, 46 Tex.Crim. Rep.; Lockhart v. State,53 Tex. Crim. 589; Craft v. State, 57 Tex.Crim. Rep.; Gaines v. State, 58 Tex.Crim. Rep.; Corbitt v. State,72 Tex. Crim. 396, 163 S.W. Rep., 436; Clark v. State,56 Tex. Crim. 293.

If the statement is a shorthand rendering of the facts as shown by the statement, or the context, it has heretofore been held admissible though apparently an opinion. Sims v. State, supra; Connell v. State, supra; Lockhart v. State, supra; Craft v. State, supra; Gaines v. State, supra; Lane v. State,59 Tex. Crim. 595; 2 Branch's Ann. P.C., p. 1036.

I have more than once read and studied the testimony heard by the trial judge in the attack of appellant on the verdict of the jury. I am thoroughly convinced that the trial judge was fully justified in overruling the motion for new trial on that ground. I think a careful study of all of that testimony should convince anyone that the trial judge correctly overruled the motion on that ground. It is useless for me to detail that evidence. There may be culled, as has been done herein, some expressions in the testimony of some of the jurors which, if taken alone, might have justified the trial judge to have set aside the verdict on that ground, but that is not the criterion. All the testimony of all of the jurors should be considered; and when that is done, as was done by the trial judge in this case, I think his action was correct. And his action is supported by the former decisions of this court. I merely cite some of the cases without commenting upon them. Coffman v. State, 73 Tex.Crim. Rep.; Morrison v. State, 39 Tex.Crim. Rep.; Arnwine v. State,54 Tex. Crim. 213; Smith v. State, 52 Tex.Crim. Rep.; Baines v. State, 43 Tex.Crim. Rep.; Salazar v. State,55 Tex. Crim. 307; Lamb v. State, 75 Tex.Crim. Rep..

The judgment herein should be affirmed, not reversed. I respectfully dissent.