Martinez v. State , 113 Tex. Crim. 223 ( 1929 )

The offense is murder; punishment fixed at confinement in the penitentiary for a period of twenty-five years.

While controverted, the evidence is such as to support the finding of the jury that the appellant killed Gregorio Castillo by shooting him with a pistol. The homicide took place at a dance. Eusebio Casiano, an eye-witness, testified that he saw the fatal shots fired by the appellant. Immediately after the shots were fired, the wife of the deceased, who was at the dance, ran to her husband, who said that Pancho Martinez had shot him. The deceased was in the act of falling at the time and the appellant was nearby with a pistol in his hand.

There are several bills of exceptions complaining of the reception of the testimony presenting the contention that the declaration of the deceased that "Pancho Martinez shot me" was hearsay and inadmissible in the absence of a predicate such as would support the introduction of a dying declaration. As qualified by the court and shown by the testimony, the declaration was made while the wounded man was upon the spot where he had been shot, before he had fallen to the ground and but a few moments after the fatal shots were fired and while his assailant was standing by with a pistol in his hand. That the declaration was properly received under the rule of res gestae is not open to question. Calloway v. State, 92 Tex. Crim. 508; Cavanar v. State, 99 Tex.Crim. Rep..

A bill complains of the proof that as his wife was by the dying man she made the statement:

"Why do you come again, if you have killed him before, you unhappy one."

The bill is not intelligible and is bare of the surrounding facts.

The evidence is sufficient, and no error having been perceived, the judgment is affirmed.

Affirmed.

ON MOTION FOR REHEARING.