167 S.W.2d 171 | Tex. Crim. App. | 1942
Lead Opinion
Murder is the offense; the punishment, ninety-nine years in the State penitentiary.
That portion of the vast King Ranch situated in Nueces County is bounded on the south by the waters of the Laguna Madre, an inlet of the Gulf of Mexico. The other boundary lines, and especially that to the north, are marked by a substantial fence.
The submerged lands of the Laguna Madre are owned by the State of Texas, and, at the time hereinafter mentioned, and long prior thereto, were under lease to an oil company for development of oil and gas. To effectuate this development, it was necessary to travel over and across that portion of the King Ranch mentioned. The oil company had contracted with a construction company to do the necessary hauling of materials and supplies to the drilling sites. The construction company arranged with the King Ranch for the right-of-way and passage over their properties. One of the elements of this agreement was that a gate would be placed in the north fence, to be kept locked, and a gatekeeper at all times stationed thereat to permit entry and passage of only those entitled thereto.
The appellant was an employee of the King Ranch. His duties, primarily, were to trap predatory animals, ride fence, and, in general, to look after the interests of the ranch. He was also a state game warden, charged with enforcing the game laws. That portion of the ranch mentioned was a state game preserve. He lived alone in a camp located on the ranch and about two miles from the gate and gatehouse mentioned.
So far as this record is concerned, the appellant and deceased were good friends. Appellant was a regular and frequent ■ visitor at the gatehouse, often playing dominoes and checkers with the deceased. This was the relationship existing between the parties on February 28th, 1941 — the day of the homicide. The evidence shows that, about 10 :00 A. M. that day, appellant arrived at the gatehouse, where he spent the day. Several workmen of the oil company were engaged that day in repairing a bridge near the gatehouse. All these, together with the wives of some of the workmen, had lunch at the gatehouse. Witnesses testified that, during this time, the appellant and deceased were friendly and congenial one with the other. The witnesses departed about 5:30 P. M., leaving appellant and deceased together at the gatehouse. Soon thereafter, appellant and deceased, in appellant’s car, drove to a small cafe about three-quarters of a mile away, where they drank several bottles of beer. They remained there about two hours, at the expiration of. which they left and returned to the gatehouse.
Up to this point, the facts are not in dispute. As to what happened when appellant and deceased returned to the gatehouse is the disputed issue.
- The State’s theory, based upon the physical facts and circumstances, augmented by portions of appellant’s confession, was that, after the parties arrived at the gatehouse, the deceased went into the house and appellant pretended to leave, but in fact laid in wait, and thereafter, while deceased was in the house, fired two shots, through a door thereof, from a 22
Appellant’s version of the matter, as shown primarily. by his testimony was that, when he and deceased returned from the cafe to the gatehouse, deceased got out of the car, when appellant suggested that he wanted to drive down to the shore of the Laguna Madre to investigate a report that a boat had been seen on or near the shore; that, before leaving, deceased invited him to return and to have supper with him, saying he would prepare same while appellant was away, which invitation appellant accepted; that appellant later returned to the gatehouse and stopped his car nearby, and in a place where he customarily parked it; that he got out of the car and, while standing nearby, answering a call of nature, deceased, while standing near the corner of the house, suddenly and without warning fired upon him with a shotgun, the charge therefrom striking him in the chest, that the impact therefrom knocked him down; that he arose and went to his car, turned on a spotlight which was on the car, and with which he was able to see the deceased, standing in the back yard, with a shotgun in his hand; that he turned the spotlight off and shouted that he had been shot; that he then reached into his car and took therefrom a .303 lever action rifle, and, as he did so, deceased again fired the shotgun, the charge from which struck the stock of the rifle, causing it to discharge; that he reloaded the .303 rifle and fired in the direction from which the shots had been fired at him; that he immediately got into his car and drove in search of medical treatment for himself; that he drove to the home of the witness Pearse, about four miles away, when he secured Pearse to drive him to a Corpus Christi hospital for treatment of his injuries.
Pearse testified, in behalf of the State, that, about 9:30 P. M. on the date of the alleged homicide, appellant came to his house and asked him to take him to a hospital; that appellant told him he had been shot, saying, in this connection, “He got me but 1 got him.”; that he drove appellant, in appellant’s car, to a hospital in Corpus Christi; that appellant did not, at any time, tell him how the shooting occurred, when or where it happened, or who had shot him, “but told me just to keep it to myself”; that they arrived at the hospital within about fifteen minutes, whereupon appellant told the nurse that “it is accidental, an accident,” and told her the name of the doctor he wished to treat him; and that, during all of this time, appellant was bleeding, suffering, and in pain. After delivering appellant to the hospital, Pearse returned to his home, in appellant’s car, in which were the guns, that is, the .22 rifle, and the pistol. He said he then went back to bed without reporting the incident to anyone..
The following afternoon, peace officers, after talking with Pearse, went to his (Pearse’s) home and there found the car, and, in Pearse’s home, the .22 rifle, which Mrs. Pearse delivered to them. Mrs. Pearse did not testify as a witness in the case.
Dr. Koepsel, the physician who attended ■ appellant at the hospital, testified as a witness for the appellant, upon direct examination, described appellant’s injury as being a shotgun wound on the right side of the chest, inflicted with bird shot, none of which, however, had penetrated the chest cavity or lung. He said that, at that time, appellant was in a state of shock, had lost considerable blood, and was suffering much pain.
This constitutes a sufficient statement of the facts for a consideration of the questions presented for review.
It is insisted that the facts are insufficient to support the conviction. With this contention we are not in accord. Appellant having admitted his presence at the time and place of the shooting, together with the ownership and possession, at the
The facts are sufficient to support the jury’s conclusion of guilt.
Appellant offered to prove, by Dr. Koepsel, that, at the time of, and as a part of, the conversation he had with the appellant, he (appellant) detailed to him what happened at the scene of the shooting; that appellant told him, among other things:
“I don’t know why he did that to me; I don’t know why he would do that to me”; and said, “I had to shoot him,” or “I had to shoot.”
The State’s objection to this testimony as being a self-serving declaration was sustained. That it was a self-serving declaration is not open to serious question. Generally speaking, self-serving declarations of one accused of crime are not admissible. They become so, however, when made under certain circumstances, that is, when they constitute a part of the res gestae, or when the State has proved only a part of a conversation or statement in which they were made,. or when they contradict or explain an act or declaration first offered in evidence by the State. 18 Tex. Jur. 152.
By proper bills of exception, appellant insists that the statement so offered comes within the exceptions mentioned and that: (a) the testimony was admissible as a part of the res
We discuss the contentions in the order named.
As a predicate'to show that the statement was a part of the res gestae, the bills of exception certify that the length of time transpiring from the time of the shooting until the conversation occurred was about thirty minutes, it having taken that much time for the appellant to drive to the home of Pearse, and from there to the hospital; that, during all of this time, the appellant was suffering pain and anguish, and, when first seen by the doctor, was in a state of shock, and was excited. In connection with these facts, the record reveals that, while Pearse was with appellant, they talked about the shooting; that, when the doctor arrived, he asked appellant what happened to him, to which appellant replied: •
“You are a doctor, aren’t you?”; to which the doctor answered, “Yes.” The appellant then said: “Well, you can take care of my condition, can’t you?”; to which the doctor replied: “Yes, I think so,” appellant then saying: “Well you do that.” All of this conversation with the doctor transpired prior to the • making of the statement which was desired to be proven.
No fast or hard rule has been laid down by which it may be known that a declaration by one accused of crime is a part of the res gestae. Each case must depend upon its own peculiar facts. There are, however, certain basic principles which must be regarded as established and controlling. For a statement to be a part of the res gestae, the declaration must deal substantially with, and must grow out of, the main fact so as to be spontaneous and not, in any event, a narration of a past event or occurrence. Above everything else, there must exist that spontaneity which takes the statement out of the realm of narration or premeditation. The authorities supporting this rule are numerous. We cite: Butler v. State, 131 Tex. Cr. R. 543. 100 S. W. (2d) 707; Hamilton v. State, 138 Tex. Cr. R. 205, 135 S. W. (2d) 476; Glover v. State, 126 Tex. Cr. R. 56, 70 S. W. (2d) 155; Banks v. State, 95 S. W. (2d) 421, 130 Tex. Cr. R. 505; Bradford v. State, 122 Tex. Cr. R. 191, 54 S. W. (2d) 516; 18 Tex. Jur. 297; Branch’s P. C., Sec. 83.
Upon direct examination of Dr. Koepsel, the appellant was permitted to prove, by the witness:
“The defendant told me how he received that wound. He did not name the man who shot him. He did not tell me who he was in any manner. He told me he had done some shooting himself. You ask me if he told me whether or not he had succeeded in shooting any one out there; in answer I will say he said he shot. He said he didn’t know if he had hit any one when he shot.” The foregoing comprises the whole of the doctor’s direct testimony as to what appellant told him at the time.
Upon cross-examination, the State proved, by the doctor, that, during that conversation, the appellant told him among other things:
“You 9sk me if the defendant Trammel did not s^y to ma that night substantially, that he had shot another man with a .22 calibre high power cartridge; in answer I will say that he said he reached in his car and got a gun, and he had a .22 rifle in the car and a pistol, and he started shooting. — — — — —— .he said he had a .22 and a pistol
Upon re-cross-examination, the State further proved, by the witness that, at the court of inquiry, he testified that appellant told him he had shot the other man with a .22 calibre high power cartridge or cartridges, and that appellant “told me that he had a pistol and a .22 rifle in his car, and he said he reached in and got the rifle.”
As far as we have been able to ascertain from this record, the cross-examinations above pointed out constitute the only testimony in this case, that, directly, places, in the hands of the appellant, at the time of the shooting, the .22 rifle with which the deceased was killed. Such testimony was not only material to the State’s case, but was contradictory of the appellant’s testimony that he did not fire the .22 rifle. By such cross-examination, the State was placing before the jury evidence which it had been unable to produce, directly, from any other source, i. e., that the appellant did in fact fire the .22 rifle. Under the circumstances detailed, was the appellant entitled also to have the doctor testify, as a part of the same conversation, that he (appellant) told him, among other things: “I had to shoot him,” or, “I had to shoot”?
It must be remembered that by no other testimony, outside of this proffered statement to the doctor, was appellant supported in his theory of self-defense.
Art. 728, C. C. P., reads as follows:
“When part of an act, declaration or conversation or writing is given in evidence by one party, the whole on the same subject may be inquired into by the other, as, when a letter is read, all letters on the same subject between the same parties may be given. When a detailed act, declaration, conversation or writing is given in evidence, any other act, declaration or writing which is necessary to make it fully understood or to. explain the same may also be given in evidence.”
When a party, on cross-examination of a witness, elicits from the witness new matters not inquired about in the direct examination or examination in chief, he makes the witness his : own for that purpose (Bassham v. State, 38 Tex. 622). Upon
“The State having introduced part of this conversation, the appellant was entitled to the remainder of it relating to the same subject, as has been held in authorities so numerous that their collation here would occupy undue space. The question is not debatable.” Numerous authorities are cited supporting the rule, which we do not here re-copy.
The rule stated is applicable and controlling here. Under the facts of this case, the rejected testimony was a part of, arid was explanatory of, the incriminative facts which the State had developed upon its cross-examination of the witness.
If the appellant, in the conversation with the doctor, admitted to him that he had in fact fired the .22 rifle, as the doctor’s testimony tended strongly to establish, and if this fact were first inquired about and developed, by the State, upon cross-examination of the doctor, we cannot escape the conclusion but that the appellant was entitled to have the jury also told, by the doctor, that, at that time, and as a part of that conversation, he told him that he “had to shoot him,” or that he “had to shoot.”
From what has been said, it follows that the action of the trial court in rejecting the proffered testimony was error, which requires a reversal of the case.
The other matters presented in the record will hardly arise upon another trial, and, therefore, are not discussed.
For the error pointed out, the judgment of the trial court is reversed and the cause remanded.
BEAUCHAMP, Judge, did not participate in the disposition made of this case.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
Rehearing
ON MOTION FOR REHEARING.
The State’s Attorney has filed a motion for a rehearing herein, alleging that we were in error in our holding that the provisions of Art. 728, C. C. P. were violated when the trial court failed to allow Dr. Koepsel to detail the latter portion of a conversation with appellant wherein he said: “I don’t know why he did" that to me; I don’t know why he would do that to me; I had to shoot him” or “I had to shoot.”
It is said of Art. 728, C. C. P. that: “This article expands the common law rule. At common law, when a confession or admission is introduced in evidence against a party, such party is entitled to prove the whole of what he said on the subject at the time of making such confession or admission. But this article does not restrict the expanatory act, declaration, conversation or writing to the time when the act, declaration, conversation, or writing sought to be explained occurred, but extends the rule so as to render such acts or statements admis
We remain of the opinion that all the conversation had with Dr. Koepsel relative to the transaction inquired about should have been admitted by the court.
The motion will be overruled.