94 S.W. 1046 | Tex. Crim. App. | 1906
The conviction was for manslaughter. The first bill of exceptions was reserved to the ruling of the court admitting dying declarations. The bill is hardly sufficient under the decisions of this court to properly raise the question, especially in view of the fact that the court qualified the bill by showing that a complete predicate was laid. As presented, we do not think there was any error in admitting the dying declaration. We are only passing on the bill of exceptions as presented.
Stripling was used as a witness to prove the dying declaration, and as a part of the statement deceased stated: "That when he came home on the evening of the difficulty his wife sent her little boy after Oscar Wakefield." We do not believe it was legitimate to prove this fact as a part of the dying declaration. The dying declaration is confined to the immediate acts of the homicide, and the circumstances that brought it about and were attendant upon the tragedy. This matter is too remote to be admitted as dying declarations. Medina v. State,
The same witness, Stripling, was permitted to testify that about a year before the homicide the mother of appellant and wife of deceased was at his house, and stated to him that she wished deceased was dead; that he ought to freeze to death; that he (deceased) had $400 in bank, and she would give witness one-half of it if he would poison or get him out of the way. We suppose this was admitted upon the theory that there was a conspiracy between appellant and his mother to kill deceased. Under the facts of this case, we do *126 not believe this testimony was admissible. It was too remote, and so far as we are able to ascertain from this record had nothing to do with appellant's connection with the homicide. It may have shown that at the time Mrs. Hill made the statement, she was feeling unkindly towards her husband, but they lived together afterwards for a year, and appellant was living not far away in the same neighborhood. The evidence shows that whatever case the State may have had grew out of matters occurring upon the evening and just preceding the homicide. The widow of deceased visited her son (appellant) during the evening preceding the homicide at night, and obtained some money from him to be sent through the postoffice to some distant parties. And while there mentioned that deceased had made an assault upon her sometime previously. On that evening she went to the postoffice, in the little village close by, as did deceased. They returned home, but not together. After the deceased reached home there came up trouble between himself and wife, the mother of appellant, and she called her younger son and sent him after appellant. He came to the residence, or within about two hundred yards of it, when deceased and his wife both went to the buggy in which appellant was seated. The difficulty immediately came up which ended in the homicide.
Over appellant's objection evidence was introduced by the State to show that the reputation of deceased was that of a quiet, peaceable citizen. This testimony was illegitimate. The trial court seemed to be of the impression that on account of some previous troubles between deceased and his wife, in which he may have assaulted her, and perhaps on two occasions for awhile was separated from her, that therefore deceased's reputation along this line was made the subject of legitimate inquiry on the part of the State. We do not so understand the authorities. Graves v. State, 14 Texas Crim. App., 113; McCandless v. State,
Dr. Aycock, shortly after the tragedy, was examining the arm of appellant and dressing a hurt found upon it. While this was going on, appellant made a statement to the doctor, to the effect that he received this wound from deceased just before the shot was fired, and that the wound was received on the arm by his throwing it up to shield himself from the blow struck at him by deceased. We believe this testimony should have gone to the jury. The same question was decided favorably to appellant in Gregory v. State, supra; also Craig v. State, 30 Texas Crim. App., 619.
For the errors indicated, the judgment should be reversed and the cause remanded. Reversed and remanded.
Brooks, Judge, absent.