Ex Parte Meyers , 33 Tex. Crim. 204 ( 1894 )

SIMKINS, Judge.

1. We do.not think that the court erred in refusing bail in this case.

2. On the habeas corpus trial relator objected to the evidence of A. H. Jones, deceased, taken at the inquest held over W. A. Binkley, deceased, on the ground that relator was forced, over his protest and that of his counsel, to be present at said inquest, and that he refused to take any part therein.

The district judge overruled the objection and admitted the testimony.

The record shows, that on the 14th day of January, 1894, relator tilled W. A.'Binkley and mortally wounded A. EL Jones, who died the next morning. In holding the inquest over the body of Binkley A. BT. Jones was examined as a witness, and relator was required by the justice of the peace to be present; and he was present in person and by counsel during said examination, and the said A. H. Jones was the only witness examined; that relator and his counsel objected to being present, and although offered the privilege of cross-examining the witness, refused so to do. Relator was brought to the inquest from jail, where he was confined under charge of the murder of W. A. Binkley, deceased.

Article 999 of the Code of Criminal Procedure declares, that should the justice deem proper the inquest may be held in private, but in all cases where a person has been arrested, charged with having caused the death of the deceased, such person and his counsel shall have the right to be present at the inquest and to examine witnesses and introduce evidence. Evidently it was the object of the code to limit the power of the justice as to holding private inquests, and to give a person, when arrested for murder, the right to be present and defend himself and change the proceeding into an examining court. It does not follow that the person accused can not be compelled by the justice to attend the inquest where he is under arrest and a necessity exists therefore, nor that the justice may not hold an examining court while holding an inquest. Code Crim. Proc., art. 1011. The witness was dying. The necessities of the case probably required prompt action in obtaining the evidence, and it seems wholly immaterial whether the justice styled the proceeding an inquest or examining trial. The relator was charged with the murder; he was confronted with said witness; he was present, though unwillingly, and was represented by able counsel; the privilege of cross-examining the witness was offered to him and refused. The relator does not show a deprivation of a single right. The code, under these facts, places the deposition of a witness on the same plane, whether taken before examining court or inquest. Article 774 of the Code of Criminal Procedure declares, that where defendant is present when the testimony is taken and had the privilege of cross-examining the witness, the deposition taken before an examining court or inquest, and reduced to writing and certified according to law, is admissible. The evidence is clearly admissible.

3. Relator objects further, that the court erred in admitting the dying declarations of A. H. Jones, because no sufficient predicate had been laid to admit the same. The witness English, called to prove the dying declarations of Jones, states that he went to see Jones between 3 and 4 o’clock in the morning of the 14th of January. “When I went in I found Dr. Creer there. When I first went to his bed he spoke to me, calling me ‘Doctor.’ I told him I was justice of the peace, and bad come to see him to ascertain bow badly be was bnrt and to learn tbe particulars. He seemed to be suffering very much, and I asked tbe doctor if be was seriously hurt, and be said be thought so. I also asked him if there was any hope of bis recovery; and be said be could not tell; that be might get well. Jones spoke up and said, ‘Doctor, don’t try to fool me; I know I am bound to die.’ Then be asked tbe doctor bow long be could live, shot as be was, and tbe doctor repeated be might possibly get well, and Jones insisted be knew be was bound to die. Then appellant made a statement of tbe difficulty in which-Binkley was killed and bimself wounded. ' Some five or ten minutes after tbe statement was made Jones said he bad hopes be might recover.” It is settled, that unless at tbe time of making tbe declarations the declarant was conscious of approaching death, and believed there was no hope of recovery, they are not admissible. Tbe certainty of impending death is tbe equivalent of tbe sanctity of an oath, and tbe declarations are not admissible if made while any hope of recovery remains. As presented by tbe record, it is certainly questionable whether tbe declarations are admissible. While it clearly appears that before tbe declarations were made be was fully impressed with tbe belief that be was bound to die, and desired to know bow long be could live with such a wound, yet tbe subsequent expression of hope of recovery, following at so short an interval after tbe declarations were made, raises a doubt as to tbe absence of all hope at and during tbe time when they were made.

Tbe record is silent as to any cause for tbe change or when it took place, or as to tbe time elapsing between bis first statement and last, or what was said to him calling forth such an expression. On tbe trial of tbe case tbe facts and circumstances surrounding Jones, and bis own conduct at tbe time, before, and after making tbe declarations, may be more clearly shown, and tbe court below may more intelligently pass upon tbe case than can be now done.

Affirmed.

Judges all present and concurring.