Williams v. State

We are unable to agree with the appellant's contention that the declaration of the deceased, Luke Williams, namely, "My wife shot me; I won't lie to you," was not a dying declaration. According to the testimony, as revealed by the bill of exception, Williams was conscious. He was aware of approaching death. He was severely wounded, and had been told by his physician that he could not live. The fact that the statement was made in reply to a question propounded does not render it inadmissible. The propounded question was not a leading one. It was simply, "Luke, who shot you?" The previous statement of the deceased that he did not know who shot him bore upon the credibility of the statement at present under consideration and not upon its admissibility. See Branch's Ann. Tex. P. C., page 1037, citing Hunnicutt v. State, 18 Texas App., 516, 51 Am. Rep., 330, and many other cases.

Bill of exception No. 5 was in question and answer form without any certificate of the trial court permitting it to be so prepared. In C. C. P., 1925, art. 760, subd. 3, it is said: "Such stenographer's report, when carried into the statement of facts or bills of exception, shall be condensed so as not to contain the questions and answers except where, in the opinion of the judge, such questions and answers may be necessary in order to elucidate the fact or question involved."

This court has uniformly declined to consider such bill of exception unless accompanied by a statement showing that the form of it was approved by the trial judge. See Ainsworth v. State, 105 Tex.Crim. Rep., 287 S.W. 250; Byler v. State, 106 Tex.Crim. Rep., 294 S.W. 205; McCroy v. State, 96 Tex.Crim. Rep., 257 S.W. 566; Broussard v. State, 99 Tex.Crim. Rep., 271 S.W. 385; Taylor v. State, 98 Tex.Crim. Rep., 265 S.W. 152; Robbins v. State, 100 Tex.Crim. Rep., 272 S.W. 175; Williams v. State, 102 Tex.Crim. Rep., 279 S.W. 466. We have read the bill, however, and even if we were authorized to consider it, we are of the opinion that it presents no error which would require or justify a reversal of the judgment.

The evidence, as given, is conflicting, but in the light of it and the action of the trial judge in approving the verdict and overruling the motion for new trial this court would not feel justified in declaring the evidence insufficient to support the verdict. We are therefore constrained to overrule the motion for rehearing.

Overruled.