Craven v. State , 49 Tex. Crim. 78 ( 1905 )

Appellant was charged by indictment with killing Ed Keith, was convicted of murder in the second degree, and his punishment fixed at five years confinement in the penitentiary.

During the trial the dying declaration of Keith was admitted as evidence. Several objections were urged. The court heard the testimony of Mrs. George Peede, Dock Phillips, Dock Hudson and Chip Reasonover, wherein the State was attempting to lay the predicate for the introduction of the dying declarations. On exception being taken, the testimony was excluded. Subsequently, in a second attempt to introduce the dying declaration, Tom Demasters was used as a witness. On this statement of Demasters, the dying declaration was admitted, to wit: Keath turned over and made this statement, "I believe I am fatally shot." The conversations occurring between the witnesses, except Demasters, was some hours prior to deceased's statement to Tom Demasters. The purported dying declaration was made the following day, at about 5 o'clock in the evening. The statement to Demasters was made about 11 o'clock at night prior to said dying declaration. The time intervening being from 11 o'clock at night, until 5 o'clock the next evening. The contention here is made that the proper predicate was not laid. In order to authorize the introduction in evidence of the dying declaration it is incumbent on the State to prove (1) that the deceased when he made it, was conscious of approaching death, and believed there was no hope of his recovery; (2) that the declaration was voluntarily made, and not through the persuasion of any person; (3) that it was not made in answer to interrogatories calculated to lead deceased to make any particular statement; and (4) that deceased was of sane mind at the time of making the declaration. The only evidence that was introduced as a means of justifying the introduction of the statement of deceased was through Tom Demasters to wit: "I believe I am fatally shot." This did not exclude the hope of recovery; nor does it show that he was conscious of approaching death, in the sense in which this statute means approaching death. Of course every man knows, as a matter of fact, that ultimately he must die, and the fact that he may state a belief of the fact, does not show, within the meaning of our statute with reference to dying declarations, a consciousness of approaching death. The predicate must exclude hope of life. It must reach the point of a certainty in the mind of declarant that all hope of recovery is gone, and that he is conscious of then approaching death, and in his mind it must be the inevitable result. Of course, the fact is in the record that deceased was dangerously shot, but he had stated to the physician and others who endeavored to have him make a statement, that he had some hope of recovery. Ledbetter v. State, 23 Texas Crim. App., 247; Ex parte Meyers, 33 Tex.Crim. Rep.; 10 Amer. Eng. Ency. of Law, 2nd ed., p. 364, et seq. Page 366 of the cited volume contains this language: "To render such declarations admissible, the declarant must not only believe that he is about to die, but he must be without hope." Further, "According to the clear preponderance of authority, if the deceased had the slightest hope of recovery when the declarations were made, they were inadmissible." The words of our statute, "lost all hope of recovery," means that it is a belief in death which does exclude any hope of recovery. The rule may be summed up, as found on page 368, of the same work, "That the belief declarant may ultimately die from his injuries is not sufficient." 41 Tex. 496. And it it has been held in Hunnicutt's case, 18 Texas Crim. App., 498, that the declarant must be in extremis, and under the solemn conviction that he is bound to die, and that all hope of recovery is eliminated from his mind. Only two hours before deceased in this case should have made the statement to Tom Demasters, one of the doctors told him that he thought he was bound to die, and the other asked him if he realized how mortally wounded he was. Studying over the question a moment, deceased replied, "I do not know that I do." The doctors continuously held out to him encouragement during their treatment of him. We therefore hold, under this record that which purports to be the dying declaration was inadmissible. For a case strongly in point see Ledbetter v. State, supra. All of the authorities, so far as we are aware in our State, construe our statute to the same effect.

Again, exception was reserved to some of the statements of the deceased as not being dying declarations, even if the predicate had been laid. We believe this contention is correct. Even had the proper predicate been laid, all these statements not with reference to the death and cause of death, should have been excluded. With reference to this particular question the rule has been long as we understand thoroughly settled, that dying declarations can only be admissible, "where the death of the deceased is the subject of the charge, and the circumstances of the death are the subject of the dying declarations." There are some further exceptions in regard to the impeachment of the dying declaration, and the failure of the charge to limit the introduction and rejection of other testimony, which we deem unnecessary to discuss, as the dying declaration under the predicate was not admissible. Therefore, the other questions pass out, as they are but corollaries to the main proposition.

Shortly after the difficulty, and within four to six minutes, appellant made a statement to his father, which was excluded. He reached his father's front gate, from four to six minutes after the shooting. His horses were running almost at break-neck speed, appellant was greatly excited, and was immediately asked by his father what was the matter. The reply was that he had trouble with Ed Keith, and that Ed Keith had struck him, and threw a rock at him, and tried to pull him out of his wagon, and that he (Keith) was going to kill him, and that he had to shoot him. We think this testimony was admissible. Craig v. State, 30 Texas Crim. App., 619; Scott v. State, 10 Texas Ct. Rep., 928; Freeman v. State, 40 Tex.Crim. Rep., and collated authorities. This was res gestæ under the authorities of our State, and under the circumstances it was proper to have admitted it. It would have also been admissible under another theory, as corroborative of appellant's statement on the stand as a witness, he having been impeached by statements at variance with his statement on the stand. The statement to his father was practically the same as that of his testimony on the trial. However, we are of opinion that it was admissible as res gestæ, and therefore original testimony.

For the errors discussed, the judgment is reversed and the cause remanded.

Reversed and remanded.