Walker v. StateWalker v. State
- Reporters:
- , ,
- Before:
- Davidson, Prendergast
The judgment is reversed and the cause remanded.
Reversed and remanded.
1.—Murder—Evidence—Opinion of Witness.
Where, upon trial of murder, a State’s witness testified that he was an eyewitness to the homicide, and heard what was said and saw what was done between the parties at the time and immediately before the shooting, he should not have been permitted to testify that the reason he did not go back to the house after going away was that he was afraid. Following Dempsey v. State, 27 Texas Crim. App., 269, and other cases.
2.—Same—Evidence—Dying Declaration—Predicate.
Where it was not shown by the State that at the time of the making of the declaration of the deceased he was conscious of approaching death; that he believed there was no hope for him to recover; that it was voluntarily made, and not through the persuasion of any other person or in answer to interrogatories; that he was of sane mind at the time, etc., but it appeared from the evidence that the statement was made too remote from the date of the death of the deceased, etc., the declaration should not have been admitted. Following Craven v. State, 49 Texas Crim. Rep., 78, and other cases.
3.—Same—Evidence—Bill of Exceptions—Motive.
Where the bill of exceptions did not connect up the matter properly, there was no error in excluding testimony as to the declarations of the defendant to the witness that he should go home, etc., and was too indefinite to show motive as the bill presented it.
4.—Same—Evidence—Supporting Testimony—Impeaching Witness.
A general statement of the witness to the effect that the statement of the impeached witness sought to be corroborated was about the same as that testified to on the witness stand, is but a conclusion or an opinion of the witness and does not comply with the rule. Following Richmond v. State, 58 Texas Crim. Rep., 435, and other cases.
5.—Same—Argument of Counsel—District Attorney.
Where the district attorney stated in his speech to the jury that he once prosecuted a man in another county in which the facts were very similar to the facts in the instant case, and that the jury in that case assessed the death penalty on that trial, the same was reversible error, as he could not have even testified to such facts. Prendergast, Judge, dissenting.
Appeal from the District Court of Bowie. Tried below before the Hon. H. F. O’Neal.
Appeal from a conviction of murder; penalty, ten years imprisonment in the penitentiary.
The opinion states the case.
On question of dying declarations: Craven v. State, 49 Texas Crim. Rep., 78, and cases stated in the opinion.
On question of opinion of witness, as to corroboration: Taylor v. State, 62 Texas Crim. Rep., 611, and cases cited in the opinion.
On question of argument of counsel: Smith v. State, 55 Texas Crim. Rep., 563; McKinley v. State, 52 id., 182; Smith v. State, 44 id., 137.
E. B. Hendricks, Assistant Attorney General, for the State.
DAVIDSON, PRESIDING JUDGE.—Appellant was convicted of murder and given ten years in the penitentiary.
The facts show that Kate Edwards, a woman, was living in a house belonging to appellant, or on the same place that he was living. He had control of the house which she was occupying by his consent. The theory of the State was that John Walker was intimate with the woman Kate Edwards, and the killing occurred because the deceased, Will Edwards, was found in the room with Kate Edwards at her house. Appellant came upon them in this room and trouble arose, resulting in the killing of Will Edwards by appellant. The State’s theory of the case was that appellant killed him because he was in the room with the woman. It seems to be conceded that appellant came upon him in the room suddenly, not expecting him to be there, and that appellant was passing the house, possibly going to another place and stopped for a moment. The appellant’s theory of the case was that when he found the parties in the room together the deceased undertook to kill him, basing the homicide upon self-defense.
Bill of exceptions No. 1 was reserved to the action of the court permitting State’s witness Pickens, after testifying that he was present and saw defendant shoot deceased, to testify: “I told Will Edwards that I couldn’t do him no good, and that I would go down to the camp and get the other boys and get a doctor for him, and I went on out of the door and jumped over the fence and went on down there. Yes, I went after help and got R. B. Atkins and E. B. Webster, and old man Alf Edwards and Joe Edwards came back up there with us. I was gone a good while—something like an hour—over an hour.” Then he was questioned as follows by the district attorney: “It took you something over an hour to go off and get back? A. No, sir; it didn’t take that long. After I got there I got scared to go back.” To this statement appellant urged many objections. These were overruled, and witness further testified: “Yes, I commenced thinking about going back,” and then the district attorney asked him: “You didn’t go back there for some little bit on account of being afraid to go back?” Appellant again urged quite a number of objections to this testimony. The witness answered, “Yes, sir.” We are of opinion this testimony was
Bill of exceptions No. 2 was reserved to the action of the court admitting the purported dying declarations of the deceased. The bill is quite lengthy in showing the predicate. It was through the witness Webster that the predicate was laid. He was asked if before the deceased died he made a statement in his presence and in the presence of Mr. Carlow and Mr. Lincoln, who was county attorney of Cass County, and also in the presence of Ben Edwards. This was answered in the affirmative. Witness further stated that deceased thought he was going to die, and he was asked if he wanted to make a statement, and witness answered this in the affirmative. Judge Carlow was present. He was justice of the peace. He reduced the statement to writing; that is, it was done under his direction by the county attorney, Mr. Lincoln. It was read over to and signed by deceased with his mark, and was witnessed by this witness, Judge Carlow, Mr. Lincoln, and Ben Edwards. The statement was then identified by the witness. The attorney representing defendant then took the statement to look over and cross-examine the witness with reference to the predicate. During this cross-examination he was asked if this statement was not made after the deceased went to a sanitarium in Texarkana. He answered in the affirmative. Then he was asked how long the deceased stayed in Texarkana. He did not know definitely, but a day or two; that he understood he went to a sanitarium known as Dale’s Sanitarium; that the date on the dying declaration was a correct statement of the time it was made, and that deceased lived about two months after this statement was made; that he lived until December; in fact, it showed he died on Christmas eve, about the 24th of December. He was then asked if deceased’s condition was practically the same from the time he made the statement until he died. The answer was: “After he came home we all thought, and he did, that he would get well. That was after he came home from Bowie County where he had gotten shot.”
Another bill recites that some time prior to the alleged killing, at a time not fixed by the witness, who was named Samuels, he was at the house of this woman, Kate Edwards, where it is claimed defendant shot deceased, and that on this occasion appellant came to the house and asked the witness to go home and not be lying around there; that he, defendant, acted as if he was mad, and that he had with him an ax. This testimony was objected to on various grounds. We are of opinion as presented by the bill this evidence should have been excluded. Whether this testimony could or could not be introduced properly connected up, is not the question here decided, but as presented by the bill we are of opinion it was not introducible. We suppose that the object of the State in the introduction of this was to show that appellant was jealous of the attentions to this woman by other men, and that that may have had a bearing upon the jury’s mind, assisting the State to show that deceased was killed on account of the fact that he was with the woman at the time he was shot, and that jealousy was the prompting reason or motive, but as shown by the bill, we are of opinion that the matter was not properly admitted because it was not definite enough, and was not shown to be in any way connected with this killing or so intimately and closely as to make it admissible. Bill No. 4 is pretty much to the same effect, and by the witness Samuels. He testified, as shown by this bill, that while he and defendant were present at this house, in a conversation defendant told him that the woman was living on his place and that he was going to protect her. If upon another trial this matter is properly connected up, it may be admissible as bearing upon the relations between the defendant and the woman so as to show that this jealousy may have entered into the killing, but as shown by these bills we are of opinion this has not been sufficiently done.
Another bill recites that while the witness Webster was testifying he was permitted to state that on one occasion, four or five days after the alleged shooting of the deceased, Gilbert Pickens made a statement to him in reference to the circumstances of defendant shooting said Will Edwards, and that this statement was similar to the testimony given by the witness Gilbert Pickens during the trial as to the circumstances of the shooting. Appellant objected to this for various and sundry reasons. To be more specific, this bill recites that while the witness Webster was testifying he was asked if he heard the testimony given here by the witness Gilbert Pickens. He answered this in the affirmative. He was then asked: “On the day after this shooting when they brought Will Edwards back to your house, did Gilbert Pickens tell you about how it occurred?” He answered: “I don’t believe he came home with him the next day—I don’t think Gilbert came home the next day; you see they were hauling heading over there and R. P. brought him home, and the other negroes stayed there a day or two
There were objections to the speech made by the prosecuting officer which, we think, were well taken. The district attorney stated in his speech that soon after he was elected district attorney he prosecuted a negro in Marion County, in which the facts were very similar to the facts in this case, and that the jury in that case assessed the death penalty against the defendant on that trial. The judge qualifies this by stating: “While the district attorney in his speech was illustrating the law abolishing the first and second degree murder, the above statement was made. I gave the jury a special charge instructing them to
For the reasons indicated this judgment will be reversed and the cause remanded.
Reversed and remanded.
PRENDERGAST, JUDGE.—I think the bill to the argument of the prosecuting attorney, as explained by the court, shows no error.