Davis v. State , 148 Tex. Crim. 499 ( 1945 )

Appellant in his motion for rehearing, supplemented by able oral presentation, argues with much force his contention that the declarations of the deceased made to the witness Rose Hill were not a part of the res gestae and were therefore hearsay.

The record has again been examined in the light of this contention. To accept appellant's theory of res gestae would be to overrule a long line of decisions on this question and return to the common law rule, which is that for a statement to be res gestae it must be strictly confined to the time of the transaction, itself. This we are unwilling to do. Moreover, we remain steadfast in the view which has often been expressed by this Court that in determining, in a given case, whether evidence be a part of the res gestae the conclusion of the trial court must be given great weight. Nami v. State,97 Tex. Crim. 522, 263 S.W. 595. The conclusion here reached is the same as stated in Glover v. State, 126 Tex.Crim. R., 70 S.W.2d 155-161, where we said:

"We realize the great difficulty under which the trial court labors in determining the admissibility or otherwise of statements claimed to be res gestae whether such statements are offered by the state or the accused, and we are acutely aware of the difficulty which confronts this court in reviewing the action of the trial court in the regard mentioned. Under the facts presented in the present record, and which have been detailed at some length in our original opinion, our view remains as therein expressed that the action of the trial court should not be held to have been an abuse of judicial discretion in the premises."

Appellant's motion for rehearing is overruled.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.