Hill v. State

Appellant was convicted of the murder of his wife under an indictment which charged him with murder by kicking, stamping and beating her.

The State's case by the evidence supports the charging part of the indictment, to the extent at least of showing that he did whip, beat and kick his wife, and from this treatment she later died. The physician who attended her shows it was within a few days after this treatment she died and that the bruises produced internal injuries of such a nature that peritonitis set in and produced her death. There seems to be no doubt from the testimony that this occurred as detailed by the witnesses.

There is a bill of exceptions reserved to the ruling of the court admitting the dying declaration of the wife. The exception to the admission of this dying declaration is confined to statements of the justice of the peace who took the statement. In his testimony he says the witness did not at any time state that she expected to die, but that she did state that she did not expect to recover or get well. This statement was taken about two days before her death. The bill of exceptions is deficient in failing to show that the statement set out in the bill did constitute all the predicate upon which the court admitted the testimony. 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; Edens v. State, 41 Tex.Crim. Rep.; Hopkins v. State, 53 S.W. Rep., 621; Gutirrez v. State, 59 S.W. Rep., 274; Medina v. State, 43 Tex.Crim. Rep.; Francis v. State, 75 Tex.Crim. Rep., 170 S.W. Rep., 782. While there might have been some doubt if the statement of the justice of the peace constituted the entire predicate, the record shows, especially through the testimony of Dr. Mitchell, that he was called to see the woman in a professional way, and found her in a serious condition, and informed her of the fact that she could not live but two or three days. This was Sunday evening about two o'clock. This witness goes into detail of what he told the wife and matters occurring between them at the time of this professional call, and that her husband, the defendant, was present and sufficiently close to hear what occurred between him and defendant's wife. In order that there may be no mistake that her husband understood this we quote from Dr. Mitchell's testimony further: "I asked her husband if he had any statement to make in regard to this thing and if he had it would be a good time owing to the fact she was going to die. She was lying on the bed. I said to him if there is anything you want to tell me it would be a good idea to do it for she is going to die." He says he talked loud enough for the wife to hear. Testifying further he says: "I questioned her very closely; asked her how come the knot in her side. She said her husband kicked her. I asked her if he kicked her anywhere else. She said in the head. I asked her husband about it. He refused to talk. I told him, ``if you are guilty of this it would be a wise idea to tell me. She is going to die, and if she does die it will go pretty hard with you.'" In another place he informed appellant they might hang him or send him to the penitentiary.

Taking all this testimony together, we are of opinion that the predicate is sufficient to introduce the dying declaration, if it was necessary to decide the question, but in view of the fact that the bill of exceptions fails to state or recite that the predicate set out in the bill of exceptions was the entire predicate, we think the bill is deficient. This seems to be the main proposition relied upon for reversal, and we are of opinion it is not sufficient.

The case is before us without being briefed by appellant, and we have reviewed the case in the absence of oral argument or brief for appellant.

The judgment will be affirmed.

Affirmed.

ON REHEARING. November 24, 1920.