Hamblin v. State

DAVIDSOR, Judge.

Appellant was given a life sentence under a conviction of murder in the first degree. During the trial he offered to prove by “Mrs. James Baker and L. I. Basterwood, that on Saturday, December 31, 1892, and after the examining trial before G. W. Jernigan, in which defendants were tried for assault with intent to murder John Baker, and after said John Baker had testified in said examining trial, he, the said John Baker, in the presence of Mrs. James Baker and L. I. Basterwood, accused the said L. I. Basterwood of being one of the two parties present when the assault was made on him which resulted subsequently in his death; and defendant further offered to prove by L. I. Basterwood and B. P. Boyett, that after said examining trial, and on the night before said John Baker died, he, the said John Baker, stated to the said witnesses that he, the said Baker, was not certain that Elzy Basterwood was one of the parties who committed the assault on him, the said Baker, and which assault subsequently resulted in his death. * * * It was expressly stated by counsel for defendant at the time, that the declarations were not offered as dying declarations.” This was objected to by the State’s counsel, because not made as dying declarations, because no proper predicate had been laid, and the statement was hearsay. This evidence was not objectionable as hearsay. 1 Phil. Ev., 177, 318. As set forth in the bill, the evidence should have been admitted. The State having introduced the evidence of the deceased witness, it was not necessary for appellant to lay the usual predicate for the introduction of impeaching testimony. It was impossible to do so. Upon this question the decisions may be divided, but it would seem to us that justice would demand that such evidence should be admitted where the State introduces the evidence of a deceased witness. The rule that it is unfair to attack the credit of such a witness without affording an opportunity to explain should be subordinated to the rights of the accused, whose life is sought, as well as the higher interests of society. The law which is seeking the life and liberty of the citizen for an alleged infraction of its provisions has thrown around that citizen the presumption of innocence, and the reasonable doubt of guilt, under the evidence; and it would be a harsh rule, indeed, to admit the evidence of a witness given on another trial, and make this evidence absolutely true by eliminating all opportunity of discrediting it. This would seem to obliterate the hope of eliciting the truthfulness of such testimony, and leave the accused at the mercy of the evidence of a witness who may have admitted the falsity of his statements and his corrupt motives for so testifying. If the rule be a sound one that the evidence of a dead witness can. be reproduced, then it should follow that his testimony could be attacked in any way that any other witness may be impeached. In his work on Evidence, Mr. Stephens says: “Whenever any declaration or statement made by a deceased person relevant, or deemed to be relevant, under articles 25-33, both inclusive, or any deposition, is proved, all matters may be proved in order to contradict it, or in order to impeach or confirm the credit of the person by whom it was made which might have been proved if that person had been called as a witness, and had denied upon cross-examination the truth of the matter suggested.” Steph. Dig. Ev., p. 191, art. 135. See same work, article 32, and note 22 in appendix.

The writer is unable to perceive the distinction between impeachment of dying declarations, by proving contradictory statements, and thus attacking the reproduced testimony of the witness taken on an examining trial, whether the same reason would or would not operate to authorize the introduction of such dying declarations or examining trial evidence as original testimony. That dying declarations maj thus be impeached is well settled, we think, and correctly so. For discussion of these questions, see Felder v. The State, 23 Texas Crim. App., 477; Morelock v. The State (Tenn.), 18 S. W. Rep., 258; Steele v. The State, 7 S. W. Rep., 40; Patterson v. Dushane (Pa. Sup.), 20 Atl. Rep., 538. The life and liberty of the citizen is worth more than the supposed fairness or unfairness of the treatment of a witness. To our minds the doctrine is too harsh for toleration, that the life of the accused may be taken on such evidence, and yet he be denied the right to impeach the veracity of the witness who gives such testimony. Such impeachment evidence, however, may be so weak or remote as not to require a reversal; or the evidence of guilt may be so strong and conclusive, independently of such testimony, as to render harmless the rejection of such impeachment. In such state of case it would not be required to reverse the judgment or grant a new trial in the first instance. Such we believe to be the case before us. The evidence of guilt is so conclusive against appellant and Basterwood, that no jury seeking to do their duty would or ought to have honestly returned a verdict otherwise than of murder, if the proposed evidence had been received. If the proposed evidence had been admitted, it tended to raise a doubt only as to the presence of Elzy Basterwood at the homicide, but none as to appellant. The deceased’s testimony taken at the examining trial, as well as his statements at the time and place of the shooting, are clear, strong, and unequivocal that appellant and Elzy Basterwood acted together in committing the homicide; and it may be admitted that the State’s case hinged largely upon the fact that these two parties acted together in slaying deceased. If doubt could be thrown upon the presence of Basterwood at the homicide, it would tend to impair the strength of the State’s case against appellant.

While we think the offered testimony was admissible, yet, in view of this record and cogency of the criminative evidence against appellant, its rejection is not of sufficient importance to require a reversal of this judgment. We are unable to see how any other conclusion could have been reached than that of guilt; that the killing was murder in the first degree—murder upon express malice. Bor is there reasonable doubt that appellant fired the fatal shot terminating the life of the deceased. We can not preceive from this record how a more favorable verdict could have been rendered by an honest jury. The evidence is clear and conclusive that the two parties acted together; that appellant shot deceased in the back, and Elzy Basterwood cut his neck several times, in an attempt to cut his throat, after he was shot down and helpless, and this, too, while the deceased was begging his kind offices and friendship. The killing was a cold-blooded and heartless one, and assassination solely for the purpose of destroying the testimony of deceased in a cattle-stealing case, coolly composed and boldly executed. The remaining questions are not of sufficient merit to require discussion.

Finding n*o errors of sufficient importance to require a reversal, the judgment is affirmed.

Affirmed.