Kennamer v. State

Appellant was convicted for the murder of C.F. Davis, his punishment being assessed at ten years in the penitentiary.

Some one had cut the tail off a cow which belonged to appellant's mother. Deceased was suspected of having committed the act. On the day of the homicide appellant went to the premises of deceased where the latter was cutting sorghum and throwing it over the fence to his stock and made inquiry about the cow, asking the deceased why he had cut off her tail. No one was present but appellant, deceased and the latter's small daughter. Appellant's testimony raised the issue of self-defense on the theory that deceased was armed with a stick and advancing on appellant, trying to come through the fence with the stick when appellant shot him. This was combatted by the evidence of Ruby Davis and the dying declaration of deceased. It was established that the shooting occurred on the 27th day of August, and that deceased lingered until September 17th, dying on the date in the Stamford Sanitarium in Jones County to which he was taken immediately after he was wounded. A dying declaration was taken from deceased by the county attorney on September 16th.

The only bills of exception in the record relate to the admission in evidence of this dying declaration. It was in writing and the entire statement is as follows:

("I, C.F. Davis, being conscious of approaching death and believing that I am going to die from my present sickness, desire to make this my voluntary statement relative to being shot by Luther Kennamer.)

On the 27th day of August, 1917, Luther Kennamer came to my house and to my field, where I was working and raised a row with me, in which he said `Speck, you white cap son-of-a-bitch, you have betrayed all of us.' He had his gun in his hand by that time and begin shooting me, he also accused me of having cut off his cow's tail and said he was going to straighten up that business. When he begin to shoot I grabbed for a stick. We were about 25 feet from each other when he shot me and my fence was between us.

His C.F. Davis X Mark."

While the State was laying the predicate for the introduction of the declaration the county attorney testified substantially as follows:

"Deceased made a statement to me in reference to whether or not he was going to die; he told me that he could not get well, was going to die, or the reverse of that, was going to die and couldn't get well. I don't know which he put first. . . . I had previously asked him how he was. . . . He spoke to me, called me by name; I asked that question and he gave that answer and then it was I asked him if he desired to make any statement relative to the trouble had with Luther Kennamer, and he said he did. I then took such statement; I took it in writing. In taking his statement down in writing, I just took down what he said. I did not ask him questions at all while I was writing down the statement; probably he would make some statement — he was talking in a very low tone of voice — and if I didn't understand what he said I would ask what he said; I didn't ask any questions further than that. In taking the statement I took down it was a straight forward statement as he said it and not by questions and answers. I did not at that time persuade him to make any statement; if any one else did I did not hear it. The statement I took down was a statement voluntarily made by deceased to me as I wrote it down. At the time of making this statement and at the time I took it down, the deceased appeared to be of sane mind, he appeared to be sane."

Upon cross-examination the witness testified that the portion marked in parenthesis was his (witness) language, and not that of deceased, and at the request of appellant's counsel he so marked it, and the part so marked was not read to the jury. He further stated that he would not say that deceased used the language: "On the 27th day of August, 1917." Dr. Southard testified that deceased always expressed to him the hope that he would get well, and said he was going to get well; that he talked to him the day before he died, but that he could not recall whether he talked to deceased at any time after the statement was made; that he saw him two or two and a half hours before he died, and that he was conscious.

The evidence having raised the issue as to whether the statement was made at a time when the declarant was conscious of approaching death, the trial judge submitted it to the jury in a charge so fair and complete that no objection was made thereto, and the finding upon that issue was favorable to the State.

Several bills of exception complain at the introduction of the entire statement, incorporating as a part thereof that portion shown in parenthesis. All are qualified with the statement that this part of the statement was not read to the jury as a part of the dying declaration. One bill shows exception to the county attorney testifying before the jury as to the language shown in parenthesis. The qualification shows it was not testified to as a part of the dying declaration nor introduced as such. The record shows that this language in the statement was brought before the jury upon cross-examination by appellant's counsel, for which the State cannot be chargeable, and at which appellant cannot complain.

It is urged in another bill that the court, having excluded part of the statement as being no proper part of the purported dying declaration, was in error in admitting any of it. That it being a written statement all or none was admissible. We understand the rule to be to the contrary; that any part of a written dying declaration which is admissible may go to the jury, and the inadmissible part be excluded. Manley v. State,62 Tex. Crim. 392, 137 S.W. Rep., 1137; Manley v. State, 69 Tex.Crim. Rep., 154 S.W. Rep., 1008; Walker v. State, 88 Tex.Crim. Rep., 227 S.W. Rep., 308; Walker v. State, 85 Tex.Crim. Rep., 214 S.W. Rep., 331.

Complaint is also made because incorporated in the dying declaration admitted was the expression: "On the 27th day of August, 1917," when the county attorney had testified that declarant might not have used such expression. There was no controversy about the date upon which the difficulty occurred. All parties seem to have agreed that August 27, 1917 was the correct date, and even if the expression complained of was erroneously permitted to go to the jury as a part of the dying declaration, in no conceivable way could it work injury to appellant.

In another bill appellant complains of the expression, "and raised a row with me" as being a conclusion of the declarant. The trial judge in his qualification says this objection was not made to the introduction of the declaration. But even had the objection been urged, we think it without merit. Roberts v. State, 5 Texas Crim. App., 141; Pierson v. State, 17 S.W. Rep., 468; Corbitt v. State, 72 Tex.Crim. Rep., 163 S.W. Rep., 436.

Several bills seem to be predicated on the objection to the admission of the dying declaration, because it is claimed no sufficient predicate was laid, or because the predicate was not sufficiently shown in the statement itself. These bills might be dismissed because they do not show the predicate and all the predicate laid. In Hill v. State, 88 Tex.Crim. Rep., 225 S.W. Rep., 521, Judge Davidson, speaking for the court, says:

"A bill of exceptions will be held insufficient when taken to supposed error in admitting evidence of a dying declaration without laying the proper predicate, and, to be sufficient, it must contain and state that it does contain all the predicate laid upon which the declaration was admitted, and must further also set out the declaration. Highsmith v. State, 41 Tex. Crim. 37,50 S.W. 723, 51 S.W. 919; Edens v. State,41 Tex. Crim. 523, 55 S.W. 815; Hopkins v. State, 53 S.W. 621; Gutirrez v. State, 59 S.W. 274; Medina v. State, 43 Tex. Crim. 53; Francis v. State, 75 Tex.Crim. Rep.,170 S.W. 782."

However we are of opinion from the evidence herein before set out that a sufficient predicate was laid for the dying declaration.

Finding no error in the record, an affirmance is ordered.

Affirmed.

ON REHEARING February 14, 1923.