Thompson v. State , 79 Tex. Crim. 478 ( 1916 )

Appellant has filed a motion for rehearing, and as the death penalty was assessed we have again gone over the entire record, and will again take up each question presented by appellant in his motion.

He first contends we erred in holding the testimony of Dr. MacKechney admissible as res gestae. The testimony shows the doctor was called as soon as the woman was discovered, and this is shown by the record to have been very soon after the blows were inflicted. The doctor testified that "from my examination of her, and observation of her, and talking with her, I believe she was thoroughly conscious. I convinced myself of that fact, and asked her if Sam hit her, and she gave me to understand that he did not. She did not distinctly say ``No,' because in her condition she could not speak plainly, but she said as I understood it, ``No,' and shook her head. I then asked her if Charlie did this, and she indicated ``Yes,' nodded her head." He says that this was about fifteen minutes after he got to the house, and that the woman was suffering intense pain, and he gave her a dose of morphine. That he did not give her enough morphine to render her unconscious. He testified: "All of the upper right side of her jaw was badly fractured, and her lip and cheek lacerated, and the teeth on the right hand side were loosened clear back." He describes her other wounds also, but we have named these to show why she could not speak plainly. In Branch's Penal Code, page 52, the rule is laid down that "statements made by the deceased a short time after the homicide as to how it occurred are admissible as res gestae where suffering excludes idea of fabrication," citing a number of authorities beginning with Boothe v. State, 4 Texas Crim. App., 202; Lewis v. State, 29 Texas Crim. App., 201; Lewis v. State,43 Tex. Crim. 338.

Appellant also insists that the testimony of Mrs. Walter Nelson was inadmissible. This lady testifies to going right to the woman and getting there before Dr. MacKechney did, and she says that the doctor told the woman: "Now, Pearl, you are going to die. You probably will die. I think you are dying, and you try to tell who killed you," and the woman replied, "Sharles." That when this statement was made to her by the doctor, the woman raised herself up on her elbow and said, "Sharles." This would be admissible both as dying declaration and as res gestae. Appellant says it was in answer to a question. That is true, but the statement or question was not such as to suggest the answer to be made. It left her free to name the person who had struck her, without any suggestion as to whom she should name. It has always been the rule that it is no objection to a dying declaration that it was made in answer to questions, if the questions were not calculated to lead the deceased to make any particular statement. Hunnicutt v. State, 18 Texas Crim. App., 498; Pierson v. State, 18 Texas Crim. App., 524; White v. State, 30 Texas Crim. App., 652; Grubb v. State, 43 Tex.Crim. Rep.; Hunter v. State,59 Tex. Crim. 439.

Appellant next insists that the testimony of E.G. Hill was inadmissible wherein the witness testified that he was preparing to shave her hair off and cleaning her head for that purpose, that he knew she was conscious, for when he told her to put her hand in a pan of water she did so, and while shaving her head he would tell her to turn her head and she would do so. He says this was not in regard to nor descriptive of the manner of the death. But this testimony was admissible on the issue of consciousness and was but introductory to permitting the witness to testify that the woman told him that Charlie did it, and that he hit her with a hammer. Under the testimony of Mrs. Nelson above as to what the doctor told the woman about her going to die, we think the testimony admissible.

Appellant now contends that there was no predicate laid to impeach Miss Gossler, and, therefore, Dr. MacKechney should not have been permitted to testify to the impeaching statement without a predicate being laid. It is sufficient to say that the bill does not show that any such objection was urged in the trial court, and it can not be presented now for the first time on motion for rehearing in this court. It comes too late.

Previous quarrels are always admissible to show motive. Appellant insists we were in error in quoting the substance of the threat testified to by Mike Osborn. The exact language is, after the woman had refused to let appellant stay with her: "If you can't stay with me, you will never live for nobody else." This was peculiarly admissible in the light of the facts that another negro was to go to the house the night she was killed, and she was killed before he got there. Appellant was also placed in position that he could have known that the other negro was going to deceased's home. As to appellant's objection to the court's qualification of one of his bills, he should have done this before filing the bill as qualified. Blain v. State,34 Tex. Crim. 448.

After Mrs. Dolman had testified to seeing the woman moaning and swaying her body, raising her body on her elbows, and screaming when the doctor examined her wounds, and heard what the witnesses said to her, and her answers, there was no error in permitting her to state that in her opinion the witness was conscious. This is one of the instances in which the witness in language can not portray what she sees and observes and is permitted to express an opinion.

The only other objection is, that the testimony is insufficient to sustain the death penalty. If the evidence will not sustain the death penalty it is wholly because appellant is not sufficiently identified as the person who committed the crime, and if that is true, no penalty should be sustained. The mode and manner of killing this woman was most cruel and wanton. The doctor testified: "When I arrived, in the servant house I found a negro woman lying on the floor, with her face literally beat all to pieces, — I have practiced medicine for twenty years, and I have never seen anything like it. This upper jaw was broken and all of her teeth on this side, right side, were knocked loose. Her lower jaw was broken and she was beat over the head. I think there was seven distinct marks on her head. It looked like this had been done with a hammer, and in fact I found a hammer lying there on the floor, bloody, that compared with it; that is, the bit of a hammer compared with the size of the wounds on her head."

Appellant's counsel made an able defense and undertook to fasten the crime on another and prove an alibi for appellant. The jury solved these questions against him, and we can not say they were not authorized to do so.

The motion for rehearing is overruled

Overruled.