No. 6161 | Tex. App. | Jan 19, 1889
At the Austin term the judgment m this case was affirmed without a written opinion. Counsel for appellant presents this motion for rehearing, insisting earnestly that the record contains errors for which the judgment should be reversed, and we will now notice the errors assigned. The appellant was convicted of murder in the second degree for killing John Collier.
The first error assigned is that “the court erred in admitting the statement made by Collier after he was shot, because the proper predicate had not been laid.” The statement under this proposition is that Collier was shot after dark on the evening of October 28, 1886, and was carried into the house of S. B. Bose. On the next day after he was shot, his sister-in-law, Mrs. Fleming, saw and conversed with him. To her he made a statement under these circumstances: He was shot in the bowels. On Sunday he suffered intensely — at times more than others. His bowels were swollen, and he was very sick — vomiting at intervals. He complained of fullness in the bowels, and said that he was bleeding internally. Mrs. Fleming took a seat by the bed and said to him: “John, do you know that you are going to die?” He did not say that he was dying, or that he expected to die, but replied to Mrs. Fleming: “Aunt, I am bound to die! ” The counsel for appellant con
To infer, under the facts attending deceased when this statement was made, that he simply meant that at some time he was bound to die, would bejinnatural and unreasonable. Thus to presume would be to place the deceased in the attitude of a jester whilst in the most awful condition in which a man can be placed. The declarations must be made under a sense of impending death, but it is not necessary that they should be stated at the time to be so made. It is enough if it satisfactorily appears in any manner that they were made under that sanction; whether it be directly proved by the express language of the declarant, or be inferred from his evident danger, or the opinions of medical or other attendants stated to him, or from his conduct or other circumstances of the case—all of which are resorted to in order to ascertain the state of the declarant’s mind, (1 Greenlf. Ev., 192.) Looking, therefore, to all the facts surrounding the deceased when the declarations were made, we are of opinion that they were made under a sense of impending death, and, so far as this objection is concerned, were competent evidence. The same observations apply to the question of the sanity of the deceased.
The appellant introduced evidence of threats by deceased shortly before the homicide. The State, over objection, proved by Beets that appellant, about a year before the homicide, stated to the witness (Beets) that the threats of John Collier did not amount to more than those of an old woman. Under the above state of case, this was most evidently competent evidence.
A number of bills of exception were reserved by appellant to remarks and statements made in argument by counsel for the prosecution. In every instance, however, the court acted in such manner as to render the remarks and statements harmless.
There was no error in the charge of the court in regard to adequate causes. Appellant complains that the court gave t© the jury abstract law upon the subject of manslaughter. Ap=
Appellant objected on the trial to this charge: “Homicide is justifiable also in the protection of the person against any other unlawful and violent attack besides those mentioned, * * * and in such cases all other means must be resorted to for the prevention of the injury, and the killing must take place while the person killed is in the very act of making such unlawful and violent attack.” This charge is in the language of the statute and is correct. Appellant requested the following charge, which was refused, and he< excepted: “You are instructed that if the homicide was committed in protection of the person against an attack which produced a reasonable expectation or fear of death, or some serious bodily injury, then it would not be necessary for the party so attacked to r,esort to any other means before killing his assailant.” Counsel cite us to no statement—no fact in the record—presenting the question of self defense; and if there be such evidence in this record we have failed to discover it. Rose swears to no fact raising the question, and if he stated such facts to others they could only be used to impeach him. This being so, whether the instruction was abstractly correct or not, the court acted properly in refusing to give it in charge to the jury.
The objections urged to the charge of the court relating to accomplice testimony were not made at the time, nor does it appear that the appellant was probably injured in this matter. Under the facts of this case, there was no necessity for the court to instruct the jury on “cooling time.”
It is seriously contended that the verdict of the jury is not supported by the evidence. We think differently. The facts in this record establish, to the mind of the writer, a coldblooded, deliberate assassination, and the appellant should rejoice that he escaped capital punishment.
We have very carefully considered all the grounds (though we have not written upon them all) relied upon for a reversal of the judgment, but we think none of them are well taken, and the motion for rehearing must be denied.
Rehearing refused.