Johnson v. State , 95 Tex. Crim. 269 ( 1923 )

Appellant was convicted for the murder of Lucinda Daniels, and the death penalty awarded.

No complaint is made of the court's charge, and no special instructions were requested. An application for continuance was sought, based upon the absence of two witnesses, White and Williams, White appeared and testified. The application recites that process was issued for Williams on the 11th day of April, 1922, and was served on May 10, 1922. The term of court at which the trial was had convened on August 7th, 1922. From this we know the process for the witness was for a former term. The application fails to state that the witness was present at the former term in obedience to the process served on May 10th, and states no facts which would excuse the exercise of further diligence to secure his attendance at the instant trial. Brittain v. State, 40 S.W. Rep., 297; Hamilton v. State, 74 Tex. Crim. 219, 168 S.W. Rep., 537. The burden is on appellant to establish the exercise of diligence in support of an application for continuance. (See Branch's Ann. P.C., Sec. 314, page 186 for authorities.) The diligence is not sufficient if only a subpoena was applied for when the law authorized an attachment. The court was justified in refusing the continuance.

Appellant and his wife, (Julia,) Tenie Mitchell and her husband, occupied the same house, but different rooms. Lettie, a sister of Tenie, lived in an adjoining house in the same yard. The deceased, Lucinda Daniels, was Julia's aunt, and Tenie's sister. All parties were negroes. The killing occurred on Monday morning. Upon one statement of Tenie Mitchell, admitted over objection, is the only other bill of exception based.

She testified that on Sunday night no one was at her house except her husband, herself, Julia and appellant; that appellant had gone to bed before witness did; that some time during the night appellant called witness and asked where his wife, Julia, was; that witness told him she was over at Lettie's; that appellant asked witness to go tell her to come home, to which she replied that she could not go as she was undressed, but told appellant to go, and he replied "All right." Witness then went back to bed. The record does not show when Julia went to Lettie's or how the witness knew she was there. If any disturbance occurred between appellant and his wife at the house during the night witness was not aware of it. The next she saw of appellant was early Monday morning. She had sent Julia after some soap and washing powders and appellant was near the fence as Julia went after the articles. When she returned she came in back of Lettie's house and called the witness, who at that time did not see appellant. Julia came on and went in the house. She was crying at the time and witness went in to see what she wanted. When witness came out she met appellant who had a shot-gun with him. Julia had not been in the house more than a minute. As witness came out appellant asked her what was the matter, to which witness replied, "Julia said you drew a gun on her," whereupon appellant said, "Oh, I didn't, I came back down here because I knew Julia was coming back down here and tell some stories on me." Witness then said to appellant: "I didn't think you would draw a gun on Julia," to which he replied, "No, I wouldn't hurt my wife for nothing," and said he would talk to Julia and went in the house. A few minutes later Julia came out to where witness was washing and said she was going to Mrs. Grogan's, and started away. Appellant started off with his gun; when Julia saw him she turned and came back to witness. Appellant also came back and the three of them went in the house. Witness had some conversation with appellant. He finally said he wanted Julia to get his brass knucks. Witness told Julia to give him the knucks if she could find them, and all three of them seem to have instituted a search for the missing knucks. Witness says it was not long after this until the shooting took place; that after the brass knucks could not be found she went after Reverend Washington to get him to talk to appellant and his wife, and that while she was away the shooting occurred; she did not see it but heard the reports. Other evidence shows that appellant's wife came out the front door of the house, and appellant was following her and shot her in the back of the head, then fired another shot at her after she had fallen; that he reloaded his gun and went out the gate on to a little "tram road" and started away when Lucinda came running toward the house wringing her hands, and asked what was the matter. Appellant turned, went back to meet Lucinda and threw the gun on her. She was seen by witnesses to throw her hands above her head, they being in this position when he fired at her, the shot striking her in the face, from the effects of which she immediately died.

Appellant's story about the transaction was that after he had gone to bed on Sunday night four women came in and tried to kill him, and that he jumped out of the window and ran off; that Lucinda Daniels had a pistol and two of the others had knives; that the reason he shot his wife was because she was trying to kill him with the same shot gun that he shot her with, and that when Lucinda Daniels came up she had her hands upon her apron and he thought she was going to shoot him was the reason he killed her. Objection is urged to the single statement made by Tenie to appellant, viz: — "Julia said you drew a gun on her," on the ground that it was hearsay, and in effect was using the wife as a witness against appellant. Witness was relating a conversation between her and appellant, and repeated to him Julia's statement in response to a direct question from him inquiring "what was the matter." Nothing was wrong with the witness, therefore the inquiry could not have been with reference to her. Appellant's wife was crying, and evidently had just told witness in the house that appellant had drawn a gun on her, and what she had said was communicated to appellant when he was approaching the house with a gun in his possession. Julia was not called as a witness; indeed, could not be under the law, appellant being on trial not for shooting her, but for killing Lucinda; but the shooting of the one and killing the other were so related as to be practically one transaction. It was not possible to develop the facts relating to Lucinda's death without also showing the shooting of Julia. While the wife may not be called by the state as a witness in the prosecution of her husband for killing another yet statements made by her become admissible when shown by other witnesses if res gestae. As said by Judge Morrow in Bibb v. State, 83 Tex.Crim. Rep., 205 S.W. Rep., 135:

"It is not her testimony that is used, but her verbal act so connected with the transaction as to become a part of it, and provable by competent witnesses like any other part of the transaction. See Robbins v. State, 73 Tex.Crim. Rep., 166 S.W. Rep., 528; Cook v. State, 22 Tex.Crim. App., 511,3 S.W. 749, Wharton's Crim. Ev. Sections 252, 253."

(The citation to Wharton is an error. It should be Sections 262, 263.) See to the same effect the later case of Gilmore v. State, 91 Tex.Crim. Rep., 241 S.W. Rep., 492. We quote from Section 262, Wharton's Crim. Evidence: —

"So long as the transaction continues, so long do acts and deeds emanating from it become part of it, so that in describing it in a court of justice they can be detailed. The distinguishing question is, Is the evidence offered that of the event speaking through the participants? If so, what was thus said can be introduced without calling those who said it. Is the evidence offered that of observers speaking about the event? If so, such observers must be called to testify.

Nor are there any limits of time within which the res gestae can be arbitrarily confined. They vary in fact with each particular case."

Unless we misapprehend the record the transaction which culminated in the death of Lucinda and the shooting of appellant's wife had begun when Julia returned to the house crying; it was practically continuous from that time until the killing resulted.

"There is no limit of time in which the res gestae are arbitrarily confined. They vary with each particular case. They need not be coincident as to time if they are joined by the existing feeling which exists without break or let-down, from the moment of the event they elicit. If the acts and declarations appear to spring out of the transaction, if they elucidate it, if they are voluntary and spontaneous, and if they are made at a time so near it as reasonably to preclude the idea of deliberate design, then they are to be regarded as contemporaneous, and are admissible."

The foregoing statement from Branch's Ann. P.C., Sec. 83, p. 53, epitomizes the rule, and is in consonance with Wharton (supra) and is supported by the many cases collated, notably McGee v. State, 31 Tex.Crim. Rep., 19 S.W. Rep., 764; Bronson v. State, 59 Tex.Crim. Rep., 127 S.W. Rep., 177; Lewis v. State, 29 Tex.Crim. Rep., 15 S.W. Rep., 642; Craig v. State, 30 Texas. Cr. Rep., 621, 18 S.W. Rep., 297. As we view the record the statement objected to was a part of the transaction, grew out of it, and was a spontaneous verbal act of appellant's wife incident thereto.

If, perchance, we have misapplied the rule, then it is inconceivable to us how even the erroneous admission of the statement complained of could have injuriously affected appellant under the facts shown by the record. Within a short time after he was told that his wife claimed he had drawn a gun on her, he shot her in the back of the head, and immediately thereafter killed her aunt. The punishment fixed by the jury is the severest known to the law, but we cannot say it is unmerited.

The judgment is affirmed.

Affirmed.

ON REHEARING. June 20, 1923.