81 S.W. 746 | Tex. Crim. App. | 1904
Lead Opinion
Appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of fifteen years; hence this appeal. This case was before us on a former appeal and was reversed. The facts therein stated are substantially as proven on the present trial. See Connell v. State, 75 S.W. Rep., 512, 45 Tex.Crim. Rep..
The State proved the dying declarations of deceased, by witness Yarbrough, as follows: "That he heard of deceased being hurt and went over to his house to see him. When witness arrived deceased had been removed from the point outside of his yard into the house and was lying on his bed in the house; his wounds had been dressed by the physicians and deceased was very weak. He called witness to his bedside and asked him to stay with him to the end; and witness told him he would. Deceased then made a statement to witness, and a few minutes afterwards became unconscious and so remained until he died. Defendant objected to the introduction of said statement as a dying declaration because no sufficient predicate had been laid for its introduction; and said objection was overruled, and defendant excepted to the ruling, and said witness was permitted and did testify, over defendant's objection, as follows: `Deceased told me his son John had done it, and that he had no cause for doing it.' And defendant further objected to said evidence because same was not the statement of any fact or facts by deceased, but was merely the statement of the opinion or belief or conclusion of deceased, and because same was incomplete and fragmentary." The court in explaining this bill refers to the evidence as the predicate for the introduction of the testimony; and we think that this was ample. We also hold that the statement by the declarant was admissible. Pearson v. State, 18 Texas Crim. App., 524; Roberts v. State, 5 Texas Crim. App., 141; Sims v. State, 36 Tex.Crim. Rep..
Appellant contends that the court's definition of malice and of implied malice is inadequate. In the former trial appellant was acquitted of murder in the first degree, and consequently no higher degree was submitted than murder in the second degree. The court in defining malice and implied malice instructed the jury as follows: "The distinguishing characteristic of murder in the second degree is implied malice aforethought. Malice aforethought includes all those states of mind under which the killing of a person takes place without any cause which will in law justify, excuse or extenuate the homicide. It is a condition of the mind which shows a heart regardless of social duty and fatally bent on mischief, the existence of which is inferred from acts committed or words spoken. Malice in its legal sense denotes a wrongful *262
act done intentionally without just cause or excuse." In its ordinary legal sense, under the definitions, malice denotes a wrongful act done intentionally without just cause or excuse. When applied to murder, malice aforethought is a condition of the mind which shows a heart regardless of social duty and fatally bent on mischief, the existence of which is inferred from acts done or words spoken. This, as we understand it, is in accord with the authorities. Crook v. State, 27 Texas Crim. App., 198; Martinez v. State, 30 Texas Crim. App., 129; Harrell v. State,
Appellant further insists that the court failed to properly instruct the jury in regard to appellant's intent to kill in connection with the charge on manslaughter. It is urged that the jury should have been distinctly told, that notwithstanding they believed the weapon used was a deadly weapon, yet if they believed appellant had no intent to take the life of deceased, and he killed him in a sudden transport of passion without adequate cause, he could only be convicted of manslaughter. In support of his contention we are referred to Thompson v. State, 24 Texas Crim. App., 383; Fitch v. State,
Appellant insists that the charge on manslaughter was given in the negative form, when he was entitled to an affirmative charge on that subject; and to support this he cites us to Johnson v. State,
It is also complained that the court failed, in its charge to the jury applying the law to the facts, to tell them directly that if deceased in the first instance assaulted appellant and struck him a blow which caused him pain, and his passion was aroused thereby, etc., to find defendant guilty of no higher offense than manslaughter. To sustain this contention we are referred to Warthan v. State, 55 S.W. Rep., 55; Griffin v. State, 50 S.W. Rep., 366. These cases are authority for the proposition that, where the adequate causes are those enumerated by the statute, the jury must be instructed as to these adequate causes. It does not appear in either of said cases that the court informed the jury that an assault causing pain was by law adequate cause to produce passion. Here, however, the court told the jury that an assault and battery causing pain was adequate cause. And further told them, in that connection, that while the provocation must arise at the time of the homicide, they could look to any other circumstance in evidence to enable them to judge of the provocation; and subsequently instructed the jury, if they believed appellant's mind became excited on account of any adequate cause, as before defined, and he was thus rendered incapable of cool reflection, to find defendant guilty of manslaughter. We believe this was sufficient.
Appellant contends that the charge on self-defense was given in the negative form. We do not so read the charge. After defining defendant's rights in that respect, the court properly applied the law to the facts in an affirmative manner.
Affirmed.
Addendum
This case was affirmed at a previous day of the term, and now comes before us on motion for rehearing. There is only one question necessary to be considered. Appellant insists that we erred in the original opinion in holding that the dying declarations of deceased proven by the witness Yarbrough were admissible, his contention being that the witness did not detail any fact in deceased's dying declaration about which deceased could have testified had he been alive and a witness on the stand. The bill of exceptions on this subject shows that the State introduced witness Yarbrough, and after proving by him that he went to see deceased the night after he was wounded, found him very weak, called witness to his bedside, and asked him to stay with him to the end; and witness told him he would. Deceased then made a statement to witness and a few minutes afterwards became unconscious and so remained until he died. Witness stated, "Deceased told me his son John had cut him, and he had no cause to do it." This was objected to on the ground that no sufficient predicate had been *266 laid for its admission; also because it was not the statement of any fact or facts by deceased, but was merely the statement of his opinion or conclusion and no facts were stated in that connection on which it was based; and because the same was incomplete and fragmentary, and an expression of pain and denunciation of defendant by deceased which was calculated to confuse, mislead and improperly prejudice defendant with the jury. The court in explaining the bill said that all the evidence heretofore introduced in the trial was considered by him in the admission of the testimony. It occurs to us that the predicate was sufficiently laid. Not only by the witness himself, but by other witnesses, that deceased was then conscious of approaching death.
The other question is fraught with more difficulty. There are decisions seemingly both ways on the subject. We understand all the authorities to agree on the rule enunciated by appellant; that is, that dying declarations are only admitted as to such facts as deceased would have been authorized to testify to had he been present at the trial. See Lister v. State, 1 Texas Crim. App., 739; Warren v. State, 9 Texas Crim. App., 619; Medina v. State, 63 S.W. Rep., 331; Bateson v. State, 10 Texas Ct. Rep., 208. In a number of cases in this State witnesses were permitted to testify to facts under the doctrine of dying declarations, similar in character to the expression of deceased as testified to in this case. In Roberts v. State, 5 Texas Crim. App., 141, the witness was permitted to testify that deceased told him, "Steve Roberts killed me for nothing." And in Pierson's case, 21 Texas Crim. App., 14, the witness was permitted to state: "It was Tom Pierson that shot me while I was on my return from Felix Smith's last night. Bob Pierson was with him. Tom was riding a sorrel blazed-face horse. They had no occasion to shoot me. I had not spoken a word to them; nor had I done anything to either of them." In Sims v. State, 36 Tex.Crim. Rep., witness testified under the head of dying declarations, that deceased said: "Sims ought not to have shot me. I did not think that Sims was going to shoot." Appellant's counsel, however, in presenting these cases in support of his contention shows that the witness testifying as to these expressions under the head of dying declarations did so in each case in connection with other statements of deceased, in which facts were adduced concerning the killing; and the opinions given in that connection were not calculated to prove hurtful in said cases. Appellant also refers us to Williams v. State, 40 Tex.Crim. Rep., 570, in which the following declaration of deceased was held to be inadmissible: "When they came in I treated them perfectly gentlemanly. They added insult after insult;" and in Bateson v. State, 10 Texas Ct. Rep., 208, this expression was excluded: "They murdered me without a cause;" and that deceased told him to tell his wife good-by. In the last two cases appellant shows the expressions were of an isolated character, not connected with other testimony as in the present case. It may be conceded that the authorities in this State are in some confusion on this subject. The cases may be reconciled, however, on the principle that where opinions of the declarant *267 have been admitted, the record showed, either by the witness himself or by other witnesses, the manner of death, so that his opinion did not stand alone, but is qualified by what had gone before. Applying this rule to the case at bar, it appears that it was shown by a number of witnesses what deceased said as to how the difficulty came up, in which he lost his life. Deceased appears to have made these statements shortly after the difficulty, as a part of the res gestae. He stated to them that John (appellant) cursed him; and he struck John; and that then John went for his bowie knife, and stabbed him. So that deceased's statement to Yarbrough evidently referred to his statement to other witnesses as to how the homicide occurred, and the jury must have so understood it. It may be that, strictly speaking, the testimony of Yarbrough himself as to the declaration of deceased being of an abstract and fragmentary character was not admissible, but when it is referred to the other statements of deceased, and in connection therewith, the jury could not have been misled by it; but understood from other testimony of deceased in connection with that given through Yarbrough, that, in the opinion of deceased, appellant cut him for nothing, as he did not consider his quarreling with appellant and his striking appellant any cause for appellant cutting him with the knife. In connection with the facts stated to which the jury must have referred it, we fail to see how is could have injured appellant. The motion for rehearing is overruled.
Motion overruled.
