Woods v. State , 87 Tex. Crim. 354 ( 1920 )

Appellant was given a life sentence in the penitentiary, in the Criminal District Court of Tarrant County, for the murder of one W.R. Price.

The killing occurred in the city of Ft. Worth, in a barbershop, of which appellant was proprietor. The evidence is sharply conflicting as to which of the parties, appellant or deceased, began the fatal difficulty, but if it is conceded that under the rule that conflicts in evidence are to be settled by the jury, there is ample evidence in the record to support the verdict.

Taking the various matters here urged as error, in the order in which same are presented, we first observe that it is contended that it was error to permit the State to ask the witness Hoffman if he did anything with reference to that wound, and to permit the witness to answer that he never bothered with the wound at all. It appears from the bill of exceptions that this witness was testifying as to what transpired when he got to the scene of the shooting, and found deceased lying on the ground badly wounded and calling for help. The objection, as made, is without merit. The fact that the witness did nothing for the wound, could not possibly have hurt the cause of appellant. There appears no intimation that the fact that the witness did nothing for the wounded man, was in any way incited or caused by any action of the appellant. This matter is presented here in bill of exceptions No. 1.

By his bill of exceptions No. 2, appellant complains of the admission of a statement by deceased, to the effect that appellant had shot him for nothing. It is shown that this statement was made almost immediately after the firing of the gun. There was no error in admitting this testimony. Clark v. State, 56 Tex.Crim. Rep., 120 S.W.R., 179; Craft v. State, 57 Tex.Crim. Rep., 122 S.W. Rep., 546.

It is also urged that in reply to another question, witness Hoffman stated that deceased said that appellant shot him for nothing; that he was trying to make his get-a-way; that they had had a misunderstanding, and he went back to apologize. This is shown to have been admissible, both as a dying declaration, and as res gestae. The objection thereto was, that it was a statement of the conclusions of the deceased, and of his undisclosed purpose in returning where appellant was immediately preceding the shooting. In his approval of this bill, the trial court calls attention to the fact that several other witnesses (naming them) testified that just before the fatal difficulty, the deceased was apologizing to appellant; and further, that appellant himself, stated while on the witness stand, that deceased came into his shop just prior to the shooting, and that deceased said that appellant had judged him wrong, that he didn't mean to insult the girl, that he had come to settle this thing, and get it squared. Examining the testimony of these witnesses, as contained in the statement of facts, we find that the trial court was correct in his explanatory statement, and can see no harmful error in admitting the testimony complained of. When the death of the declarant, and the circumstances immediately connected therewith, are the subjects mentioned, dying declarations are admissible. Radford v. State, 35 Tex.Crim. Rep.; Craven v. State,49 Tex. Crim. 78; Gaines v. State, 58 Tex.Crim. Rep.. Aside from the declaration that he was shot for nothing, there appears in said statement of deceased, as complained of in bill of exceptions No. 3, nothing that was not fully established by other testimony.

By the thirteenth bill of exceptions, complaint is made of certain statements made by appellant to the witness D.E. Lloyd. This bill is quite lengthy, but sets out no grounds of objection to said testimony. The State seems to have offered said statement, both as impeaching, and as an original res gestae statement of the accused. It appears from the bill that after a lengthy cross-examination of the witness, for the purpose of testing him and laying a predicate for objection, that the following statement of objection was made by the attorney for the appellant: "Whereupon defendant then and there objected to the introduction of anything the defendant may have said to the witness, and to any statement that is claimed Mr. Woods may have made in that barbershop at any time after Mr. Lloyd went to the door of the barber shop." The objection was overruled, and an exception taken. This is too general. No ground of objection whatever is stated. Davis v. State, 14 Texas Crim. App., 645; Conner v. State, 17 Texas Crim. App., 1; Buchanan v. State, 24 Texas Crim. App., 195; Day v. State, 62 Tex.Crim. Rep.; Edmandson v. State, 64 Tex.Crim. Rep.. However, if in view of the seriousness of the penalty inflicted, we should consider the matter set out in bill of exceptions No. 13, as though same had been properly objected to, for the reason that appellant was under arrest at the time, and unwarned, we should hold that no error was committed, in that said testimony was clearly resgestae. An apparently unbroken line of decisions in this State holds res gestae statements admissible, regardless of whether or not the accused was under arrest. Harrison v. State, 20 Texas Crim. App., 387; Powers v. State, 23 Texas Crim. App., 66; Weatherby v. State, 29 Texas Crim. App., 307; Miller v. State, 31 Texas Crim Rep., 609; Bowen v. State, 47 Tex.Crim. Rep.; Bronson v. State, 59 Tex.Crim. Rep.; Hickman v. State,65 Tex. Crim. 583, 145 S.W. Rep., 414; Davis v. State,70 Tex. Crim. 37, 155 S.W. Rep., 549. The authorities cited by appellant are without reference to the rule of res gestae. It is in testimony that the officer Lloyd heard the shooting, and ran at once to the scene, getting there a moment or two after it occurred; and there seems no possible question as to the testimony being of this character.

By his bill of exceptions No. 12, appellant complains of a large number of questions propounded to appellant while on the witness stand, said questions relating to statements made by him to the witness Lloyd. We are of opinion that the statements so made would have been admissible under the rule of res gestae, and that no error would be shown if the witness had answered the questions affirmatively. However, all of said questions were answered in the negative, and no possible error appears.

Appellant has a bill of exceptions to various questions and their answers, relative to how long the appellant had in his possession the shotgun used by him in committing the homicide, and as to when he had loaded the same, and with what kind of shot the same was loaded. The objection to this evidence was that it was irrelevant, incompetent, and immaterial. This is no sufficient statement of objection, as we have often held. If we were to consider it as a kind of general demurrer, we should hold said evidence as generally admissible. Deceased was shot with the gun in question, in the hands of appellant, and it would be material to show that appellant had the gun in his possession, and it might be material to show the purpose for which he got it, and the kind of ammunition with which the same was loaded.

There are other bills of exception in the record, which raise questions not presented in appellant's brief. We have examined these, and are of opinion that none of them present any reversible error. Appellant appears to have had a fair trial, and finding no errors in the record the judgment of the trial court will be affirmed.

Affirmed.

ON REHEARING May 12, 1920.