Grubb v. State

DAVIDSON, Presiding Judge.

Appellant was convicted of manslaughter, and his punishment assessed at two years confinement in the penitentiary.

He requested several instructions presenting self-defense, and reserved an exception to the court’s charge on this issue. In regard to this the record discloses that deceased was a brother-in-law of defendant, having married his sister some six years prior to the homicide; that prior to the difficulty deceased and his wife had separated, and at the time of the homicide she was living in her father’s residence; that enmities arid bitter feelings were engendered by reason of these matters between the .parties, and deceased had made threats against the entire Grubb family, especially his father-in-law. On the night of the homicide, appellant and an unmarried sister and deceased attended the same church, and some half hour after the services deceased was in the yard, crawling towards the residence of his father-in-law. His dying declaration shows that, as he was passing along the street near the residence, he saw a light in the room occupied by his wife and children, and he immediately got over the fence, and was crawling in the direction of her room. As he was approaching the house, he saw Ms father-in-law and appellant (who also resided there) standing near the chimney on that side of the house which he was approaching. Appellant hailed him. He turned to run, and was fatally shot in the back by appellant. Appellant testified that his father was not with him at the time of the shooting; that he saw deceased crawling in the yard, and hailed him; that deceased made a move as if to pull his pistol, and he (appellant) fired. From several witnesses threats were shown to have been made by deceased against his father-in-law, as well as the entire Grubb family. The court charged the jury with reference to the defense by appellant of himself from apparent danger, as well as from the standpoint of threats; and further, that he had the right to defend against the attack or supposed attack by deceased on any member of the Grubb family. As we understand the testimony, these were the issues; and the court’s charge presented them favorably to appellant. There was no testimony showing an intent on the part of deceased to do any act other than to carry out or put into execution the threat to take the life of some member of the Grubb family. If he was a mere trespasser, as above stated, and simply for this reason appellant shot, then his offense would not be of less grade, under the circumstances of this case, than manslaughter. Of this offense he was convicted, and given the minimum punishment.

Objection was urged to the admission of the dying declaration: First, for want of a sufficient predicate; second, the declaration was in response to questions asked by the county attorney, and was therefore not voluntary. Some of the objections set out in the bill the court certifies were not urged when the declaration was admitted. It is therefore not necessary to consider them. The county attorney asked, deceased, while making his dying declaration, this question: Whether or not Grubb approached him from the time he (Anderson) first saw Grubb until the first' shot was fired. The answer was, “Sam Grubb came ten or twelve feet nearer where I was at the time he shot than he was at the time I first saw him.” The court certifies this matter was not objected to at the time it was offered. However, we believe the testimony was admissible, even had exception been properly reserved. It was a part of the difficulty itself; it was in explanation of the matters immediately environing the killing, and therefore admissible. So with reference to that portion of the declaration, in which the declarant stated, “I had no weapons with me of any kind except my pocketknife, which was in my pocket.” It was contended by appellant that deceased made a demonstration as if to draw a pistol or some weapon, which left the impression upon his mind that his life was in danger. This was an act by deceased, or it was in relation to an act or supposed act by deceased, at the time entering into the difficulty, and was the deceased’s statement of this portion of the difficulty which led to the killing. It was res gestae, a part and parcel of the matter, and explanatory of the immediate facts.

The introduction of the plat of the immediate scene of the killing was proper as a part of the dying declaration. It showed the immediate surroundings and premises where the killing occurred. If a correct ■plat, it was admissible whether a part of the dying declaration or not, and it would make no difference who made the plat. The mere fact that deceased made it, and connected it with and in explanation of his ■dying statement, would not be ground for excluding it. We believe the testimony supports the conviction. The judgment is affirmed.

Affirmed.