Payne v. State , 45 Tex. Crim. 564 ( 1904 )

HENDERSON, Judge.

Appellant was convicted of murder in the second degree, and her punishment assessed at confinement in the penitentiary for a term of ten years; hence this appeal.

The only question presented for our consideration is the objection urged by appellant to the admission by the court (of the dying declaration of deceased, Charles Foster. No question is made as to the predicate laid for the introduction of this evidence; but it is insisted that the introduction of dying declarations is violative of section 10 of article 1 of the State Constitution, which requires in all criminal trials that defendant “shall be confronted with the witnesses against him.” Appellant concedes that this matter has long been settled in the State adversely to her contention; but appellant’s counsel urge it has been wrongly settled, and he asks the court to review the admission of this character of evidence, in connection with the clause of the Bill of Rights in question. Appellant also refers us to Cline v. State, 36 Texas Crim. Rep., as recognizing the principle for which he contends here. However, since the decision in Cline’s case, the court passed upon this very question in Taylor v. State, 38 Texas Crim. Rep., 552, holding dying declarations admissible. We see no occasion to review this question, as it may be considered settled.

Appellant also contends that the testimony is not sufficient to support the conviction. An examination of the record does not sustain this contention. The conviction is supported by the testimony of one witness, and in addition thereto the dying declarations of deceased. The theory of appellant was that deceased either accidentally or intentionally shot himself. The charge of the court properly presented both theories, and the jury found against appellant. Ho reason is shown why the verdict of the jury should be disturbed. The judgment is affirmed.

Affirmed.