Jones v. State

Appellant was convicted of murder and given a life sentence.

The evidence of this case is not as cogent as some cases of this character passed upon on appeal, yet, there is in our opinion, enough to warrant us in concluding that the jury were correct in their finding.

Appellant was in the neighborhood of the homicide, had made threats against the deceased; deceased was a witness against him in a hog-stealing case. Appellant was seen the night of the homicide, and after the killing should have occurred, with a shotgun at what the witnesses term an "infair." This gun was handed to a named party to be kept until after the festive occasion had terminated. The deceased came to his death by means of a shotgun, both barrels of which was discharged into his body. About an hour after he was shot, his wife, who was in bed, managed to reach him and in answer to a question by her, appellant stated that deceased had shot him. This is the substance of the State's case. The defendant introduced evidence to the effect that he was in that neighborhood and accounted for his presence there, by showing that he was securing the signatures of certain parties to some appearance bonds that he was required by the sheriff to give under some criminal charges. He denied having a shotgun and the party to whom the State's witness stated that appellant handed the gun at the "infair' denied receiving it. Appellant showed by some of his counsel, perhaps all of them, defending him in the hog-stealing case, that the deceased was sufficiently favorable to appellant in that case, for the district attorney to continue said case in order to secure other testimony. They also attack the widow of deceased by showing she had on the day after the homicide, stated that deceased said nothing in regard to who killed him and that she further so testified before the grand jury. They also introduced the constable, who stated that he saw tracks in a certain corner of the fence near the residence of the deceased made by a party who wore a larger size shoe than appellant. This was practically appellant's side of the case. Without going into a discussion of this testimony, we are of opinion that it was sufficient, if the jury believed the State's side of the case, and this they did.

A bill of exceptions was reserved to the action of the court in permitting the widow of the deceased to detail before the jury the statement of the deceased that appellant was the party who shot him, on the grounds, first, that it was not res gestæ and was too remote; and, second, that it was not brought within the rule of dying declarations. The facts show in this connection, as set out in the bill, that the wife was in bed at the time the shots were fired, having three days previously given birth to a child; that appellant was on the gallery with an older child at the time the shots were fired; that she lay there in bed about an hour, fearing to get up on account of her condition from childbirth; that her husband said nothing; that at about the expiration of an hour, she went out to see what was the matter, succeeded in getting him in the room and then asked him who it was shot him. He said Boy Polk; she asked again and he said Ivory Jones. It is further stated that Boy Polk was a name that Ivory Jones, appellant, was also known by, or called. One of the loads of shot took effect in the head, the other in the body. In about fifteen minutes, or such a matter, after he made the above statement, he remarked, "I allow to die," and during the night did die. Under the conditions above stated, we are of opinion that the evidence was admissible. See Lewis v. State, 29 Texas Crim. App., 201. Here there was about an hour intervening between the shot and the statement. His suffering was rather acute from the wound in the head, as well as that in the body, and evidently his mind was not in such condition as to manufacture and narrate a story. He had no opportunity to make a statement to anybody else, unless he had talked with his wife in another portion of the house. In Lewis' case, supra, the time extended over possibly an hour and a half, and the deceased in that case was not in position to make a statement earlier and her mind was also in a condition not to have manufactured the statement, at least, such was the theory upon which the testimony was held admissible. Under the Lewis case, we are of opinion that the alleged statement of the deceased was admissible.

Appellant attacked the charge on circumstantial evidence. We do not think there is any merit in that (see Smith v. State,35 Tex. Crim. 618), and besides, the giving of the charge on circumstantial evidence was more favorable to appellant's rights than the facts justify. The statement of the deceased places the case possibly beyond the pale of circumstantial evidence into one of positive testimony.

We think the charge in every way is free from such criticism as requires a reversal of the judgment. It is therefore affirmed.

Affirmed.

Henderson, Judge, absent.

ON REHEARING. December 18, 1907.