Irby v. State

25 Tex. Ct. App. 203 | Tex. App. | 1888

Willson, Judge.

I. There was no error in admitting in evidence the statements made by the deceased to his father fifteen or twenty minutes after he had been shot. These statements were made as soon as the deceased could talk, and were clearly, we think, res gestae. (Willson’s Texas Crim. Stats., sec. 1046.)

II. It was not error that was prejudicial to the defendant to admit in evidence the complaint made by the deceased, charging-defendant with an assault made upon him (deceased) with intent to murder him. The fact that such a complaint had been made had been fully proved by the defendant, and its introduction in evidence by the State could not, therefore, have injured the defendant. If the defendant had not called out the fact that such complaint had been made, it would unquestionably have been material error to have admitted it in evidence.

III. Several hours after deceased was wounded he made certain statements to the witness Doctor Longmire, his attending physician, relating to the shooting. These statements were admitted in evidence over the objections of the defendant, not as res gestae or as dying declarations, but upon the ground that the-defendant, in the examination of his witness Longmire, had elicited a portion of said statements, and therefore the State had the right to prove the whole thereof. Defendant asked the witness Longmire why he (witness), at the time he was visiting deceased, thought deceased would recover from the wound. Witness answered: “Deceased asked me if he would get well. I. told him he would. Deceased then said, c When I get well, Jim Irby will pay for it.’ ” On cross examination of the witness the State called for and was permitted to prove the statements of deceased, detailing the circumstances of the shooting, as part of the conversation elicited by the defendant as above stated. In this ruling we think the court erred. The question propounded by defendant to his witness Longmire did not call for any conversation with deceased or for any declarations or statements made by deceased in relation to the shooting. It merely called for the reasons upon which the witness based his opinion that the deceased was not mortally wounded. This testimony was, in our opinion, clearly incompetent and very prejudicial to the defendant.

IV. With respect to the statements of the deceased, admitted as dying declarations, we are of the opinion that none of said statements were competent evidence. It was not made clearly to appear that said statements were made under a sense of impending death. It is only from necessity that dying declarations are admissible against a person charged with the homicide of the declarant, and our statute, and the decisions under it, guard with jealous care the admission of such evidence. Before statements are admitted as dying declarations, it should be made clearly to appear that they come strictly within the provisions of article 748 of the Code of Criminal Procedure. One of these provisions and the one which gives sanctity to the declaration, is “that at the time of making such declaration he was con-scions of approaching death, and believed there was no hope of recovery.”

Opinion delivered March 10, 1888.

In the case before us the evidence, in our opinion, falls far short of showing that the deceased was conscious of approaching death, and believed there was no hope of recovery. True, he repeatedly stated that he would not recover—that if the wound did not kill him he would starve to death. Still, he had been advised by his physician that he would get well; he was up and going about; the wound was healing rapidly; his physician had discharged him. as convalescent, and it was secondary hemorrhage of the wound that was the immediate cause of his death. Furthermore, accompanying his repeated declarations that he would die, was the declaration that he wanted to live for one thing, and that was to kill the defendant. We have found no decision construing our statute which, in our opinion, would warrant us in holding that the evidence authorizes the admission of any of the statements of the deceased as dying declarations, and it was material error to admit them in evidence. (Willson’s Texas Crim. Stats., sec. 1045.)

V. It was error, we think, to refuse to permit the defendant to prove that the deceased, a short time before the shooting, was seeking to trade for a pistol. This evidence was competent as tending to explain why it was that deceased and defendant were together at the place of the shooting; why it was that defendant had a pistol on that occasion; why it was that defendant invited deceased to go with him to the place of the shooting, etc. It tended to throw light upon the transaction, and upon the conduct of both the deceased and the defendant, and, in view of the facts as proved on the trial, was material evidence for the defendant.

We have referred to and determined the material questions presented in the record, and because of the errors we have specified the judgment is reversed and the cause is remanded.

Reversed and remanded.