Herd v. State , 43 Tex. Crim. 575 ( 1902 )

The majority opinion holds that, where dying declarations are properly reduced to writing and introduced in evidence, parol evidence of such dying declarations made at the same time can be introduced, or that the written declarations may be supplemented by other expressions or declarations of the party made at the same time, and which were not included in the written declaration. And in support of this a majority of the court cite Felder v. State, 23 Texas Criminal Appeals, 477, and Drake v. State, 25 Texas Criminal Appeals, 293. I do not believe these cases support the doctrine announced. In Felder's case it was held the written declaration could be impeached by showing that appellant made a statement at variance with said written declaration. While neither the opinion nor the statement of facts shows when the written declaration was made, it does show that the contradictory statement proposed to be introduced was made some twenty minutes after deceased was shot. Deceased lived some five or six months thereafter, and evidently the written declaration was not contemporaneous with the contradictory declaration. In Drake's case the question was as to the admissibility of the written declaration. It was held not admissible, because the declarant subsequently stated "that it was substantially correct, but that there were some immaterial alterations in his evidence he would like to make." But I understand that case to concede that the written declaration is the best evidence. In Krebs v. State, 8 Texas Criminal Appeals, 1, I understand the same rule to be announced. In that case, however, parol declarations were admitted; the court holding that the record did not affirmatively show that the dying declarations had ever been reduced to writing. The court distinctly say: "To have made the objection tenable, defendant should have established that the declarations had in fact been reduced to writing and signed by the declarant, in which event parol evidence would have been inadmissible, unless the prosecution had shown that it was not in the power of the State to produce the writing." The learned judge then quotes Wharton and Greenleaf on this subject with approval. Mr. Wharton says, "If the declaration of the deceased at the time of his making it be reduced into writing, the written document must be given in evidence, and no parol testimony respecting its contents can be admitted." Whart. Hom., sec. 766. Mr. Heard, in his valuable note to Rex v. John, 2 Heard, Leading Criminal Cases, 405, 406, cites a number of authorities on this subject. In Rex v. Reason, 1 Strange, 499, where it appeared that the declaration had been reduced to writing, a prior and subsequent declaration, though made on the same day was held inadmissible. See Rex v. Gay, 7 Car. P., 230; State v. Ferguson, 2 Hill (S.C.), 619, 27 Am. Dec., 412; Beets v. State, Meigs, 106. However, this would not be in accord with our decisions. See Hopkins v. State (Texas Criminal Appeals), 64 Southwestern Reporter, 933, which permits other declarations made at another time, although it is shown that the dying declarations made on one occasion were reduced to writing. I think the doctrine is well settled, both at common law and in this State, that, where dying declarations have been reduced to writing and signed by the party, it is not competent to introduce by parol all the declarant may have stated at the same time, and in connection with said dying declaration. While there is no statute requiring such declarations to be reduced to writing, still, where they have been so reduced, under proper formalities, it constitutes the best evidence of what the declarant stated at the time. Of course, I am not now discussing the question of fraud, as in such case the declaration would be excluded on that account. Nor does this view militate against the introduction of declarations made at some other time, which, as we have seen, are admissible in evidence.