82 S.W. 1013 | Tex. Crim. App. | 1904
Appellant was convicted of murder in the second degree, and his punishment assesed at confinement in the penitentiary for a term of twenty-five years; hence this appeal.
Appellant made a motion for continuance on account of the absence of a witness, by whom he alleged he could prove threats to take his life; said threats being communicated to him prior to the homicide. If threats are involved in the homicide, and would serve the purpose of either tending to justify appellant in the act of killing, or that he was the aggressor in the difficulty, then the court erred in overruling the continuance, as the diligence appears to be sufficient. The court in the explanation to the bill of exceptions certifies that the alleged threats were not probably true; that on the trial of the case neither Kimberlain nor his wife testified to any previous trouble between deceased and Kimberlain, nor the semblance thereof. Nor did Kimberlain testify to any threats on the part of deceased ever having been communicated to him by Dee McGee or any other person. We have examined the record and the explanation of the court appears to be correct. Appellant himself testified, that he had no trouble with deceased prior to the time of the homicide; that he was not mad at deceased. The testimony shows that the parties were living together in the same house, and the difficulty grew out of some trouble between the families, originating the day before the homicide. The alleged threat, which appellant says he could prove by the absent witness, occurred sometime prior to the homicide, and does not appear to have had any connection therewith. As stated by the court appellant testified to no threats, and made no reference to the communicated *237 threat, which he says he could have proved by the absent witness. Viewing this record, we believe the testimony of said absent witness was not probably true; but, even if true, we fail to see how it could have either tended to justify the homicide, or have tended to show who was the aggressor in the difficulty. The difficulty itself was witnessed by several persons who testify as to what occurred at the time. We do not believe the court erred in overruling the motion.
Appellant reserved a number of bills of exception to the introduction of dying declarations of deceased. The reason assigned in the bill as a ground of objection is, "that it was not sufficiently shown that at the time of making such declarations deceased was of sound mind and conscious of approaching death; and that said declarations were spontaneous and not made in answer to interrogatories directing the mind of deceased to make particular answers." The ground of objection is not a certificate that the facts were as stated. If appellant desired to avail himself of the fact that said dying declarations were improperly admitted, he should have stated all the testimony connected therewith, showing the environments under which it was admitted. This he did not do, and the bills can not be considered on that account. However, a recurrence to the statement of facts, if we were permitted to do that, shows appellant's objection is not tenable. It is further shown in the charge of the court that the judge submitted the question to the jury as to whether or not, dying declarations were made under circumstances to authorize their admission. We do not think the court was required to do this, as he was amply justified in admitting the testimony, and there was no issue of fact to be submitted to the jury. We do not think these objections are well taken.
We have examined the court's charge, and the charges requested, and, in our opinion the charge of the court sufficiently covered the issues in the case, and the requested charges were not necessary. We believe that the evidence amply authorized the verdict of the jury. There being no error in the record, the judgment is affirmed.
Affirmed.
