Banks v. State, 17988.

• Decision Date: 24 June 1936
• Docket Number: No. 17988.,17988.
• Parties: BANKS v. STATE.
• Court: Texas Court of Criminal Appeals

97 S.W.2d 219

BANKS v. STATE.

No. 17988.

Court of Criminal Appeals of Texas.

June 24, 1936.

Rehearing Denied October 28, 1936.

Appeal from District Court, Guadalupe County; Lester Holt, Judge.

W. M. Banks was convicted of murder, and appeals.

Affirmed.

Dibrell, Mosheim & Campbell and Knetsch, Stevenson & Knetsch, all of Seguin, for appellant.

R. A. Weinert, Dist. Atty., of Seguin, and Lloyd W. Davidson, State's Atty., of Austin, for the State.

LATTIMORE, Judge.

Conviction for murder; punishment, fifteen years in the penitentiary.

That the death of deceased resulted from a pistol shot fired by appellant is not disputed, but in his unusually able brief appellant urges that the facts do not support a verdict of guilty of murder with malice. That a contention had arisen between appellant and deceased over certain land and the crops grown thereon, is not controverted; nor is the fact that appellant had placed on part of said land as his tenant one Martin, who was with appellant at the time of the shooting. Deceased had denied Martin the right to cut certain rent corn. Martin reported this to appellant, and the two then went together in the car of appellant to the home of deceased, where the killing took place. Martin corroborated appellant's version of the fatal difficulty. They agreed that appellant urged upon deceased that they settle their differences without trouble, and that deceased said he was going to get his gun and settle it, and walked into the house; that appellant then walked around his car, opened the door of same, and took from the pocket of the car his pistol, and stationed himself near the end of the car, and when deceased came out of his door with a shotgun in his hand, held in a shooting position, appellant fired over the hood of the car, striking deceased and killing him. The wife of deceased was the only other eyewitness to the killing. She swore, in substance, that soon after Martin and appellant reached her home she heard appellant say to deceased: "I will turn you out, too," and he also said "You won't get anything you make on the Mose Miller place." Deceased replied: "The law will do that," and appellant pulled out a six-shooter. Deceased ran into the house and got his shotgun. Appellant got over behind his car and kind of hid himself, and watched the door, and when he got a glimpse of deceased shot him down.

The credibility of these witnesses and the weight to be given their testimony was for the jury, and we cannot agree that if the jury saw fit to accept the testimony of the state, it was not enough to support the verdict. We note that Martin was asked on cross-examination if he had not told Constable Neill that on their way out to the home of deceased appellant offered him one of his guns. Martin denied this. Mr. Neill then took the stand and swore that Martin did tell him that on the evening of the shooting on their trip out to the home of deceased, appellant asked him whether he had a gun, and offered him one of his. Martin also denied telling the sheriff of the county that on their way out to Miller's the evening of the shooting appellant told him he had some dirty work to do and wanted him, Martin, to witness it. The sheriff took the stand and testified that Martin did make such statement to him. Martin also denied having told a man named Wilson on the streets of Seguin he had had a quarrel with appellant, and if he told the truth about how this shooting occurred, appellant would get about sixty years in the penitentiary. Wilson took the stand and swore that Martin did so state to him.

Appellant's bill of exceptions No. 1 consists of two pages of questions and answers, and states "To which questions and answers appellant objected and excepted." There is no certificate by the court that it was necessary that the questions and answers be set out in order to make the bill understood. We cannot consider such a bill of exceptions.

Appellant's bill of exceptions No. 2 sets out his objection to a purported dying declaration. The dying declaration is set out, and the testimony of one witness, but neither in the bill of exceptions nor elsewhere do we find any certificate of the trial court that there were not sufficient facts before the court justifying the admission of the dying declaration. Almost times without number this court has held that a statement of grounds of objection in a bill of exceptions is not tantamount to a certificate of the court that the objection made is well founded. Williams v. State, 67 Tex.Cr.R. 590, 150 S.W. 185; Brown v. State, 57 Tex. Cr.R. 269, 122 S.W. 565; Vann v. State, 84 Tex.Cr.R. 97, 206 S.W. 80; Rippey v. State, 86 Tex.Cr.R. 539, 219 S.W. 463; Dollar v. State, 86 Tex.Cr.R. 333, 216 S.W. 1087; Fowler v. State, 89 Tex.Cr.R. 623, 232 S.W. 515; Viley v. State, 92 Tex.Cr.R. 395, 244 S.W. 538; Newton v. State, 94 Tex.Cr.R. 288, 250 S.W. 1036, and see other authorities cited by Mr. Branch in Sec. 1864 of his Annotated P. C.

Bill of exceptions No. 3 complains of the refusal of appellant's motion to strike out the dying declaration. The motion is set out in the bill, but is not accompanied by any showing of facts which would justify the court in granting such motion.

Bill No. 5 was taken to the refusal of a special charge seeking to have the jury told not to consider the dying declaration of deceased unless he was of sane mind, conscious of approaching death, etc. etc. We find no showing of any attack in testimony upon the sufficience of the predicate for the admission of such dying declaration, and in such condition of the record the special charge was not called for, but was properly refused. Highsmith v. State, 41 Tex.Cr.R. 32, 38, 50 S.W. 723, 51 S.W. 919; Connell v. State, 45 Tex.Cr.R. 142, 161, 75 S.W. 512; Ward v. State, 70 Tex.Cr.R. 393, 159 S.W. 272, 277. We seem to have uniformly held that proper objections to dying declarations must be made when the evidence is offered, and that in the absence of such objections the necessity for submission of the issue of the sufficiency of the predicate arises only in cases where evidence combats such sufficience of predicate or raises some substantial doubt thereof. Yarbrough v. State, 95 Tex.Cr.R. 36, 252 S.W. 1069; Johnson v. State, 86 Tex.Cr.R. 566, 218 S.W. 496. As we understand this record, appellant offered no testimony combating the sufficience of the predicate, and the testimony showing that deceased was at himself and conscious of approaching death when he made and signed the dying declaration, there was no need for the court submitting the issue.

We are still of the same opinion as when we wrote in Crutchfield v. State, 110 Tex.Cr.R. 420, 10 S.W.(2d) 119, regarding the matter contained in appellant's complaint in his bill of exceptions No. 6 of the refusal of a special charge seeking to have the jury told that it was their duty to consider all the facts and circumstances in evidence. When nowhere in the charge is there any limitation of the jury's right to so consider all the facts and circumstances, such charge as requested would seem an idle gesture.

Bill of exceptions No. 7 brings forward appellant's objection to proof of a conversation had with defense witness Martin, the objection being that there was an effort to impeach the witness on an immaterial matter. We do not regard as immaterial the fact, if it be such, that on the evening of the homicide and while on their way to the home of deceased, appellant asked Martin if he had a gun and offered to loan him one of his. Martin had been asked about this and denied it. The witness affirmed, over objection, that Martin did so state to him.

Appellant's fourth bill of exceptions complains of the charge on self-defense as follows: "The defendant excepts and objects to said charge because in the charge defining self-defense, it abridges the right of the defendant because it requires the jury to find that `the deceased was advancing upon him with a gun in his hands in a threatening manner', because the law only requires the jury to find that defendant so believed the case to be when viewed from his standpoint alone." Evidently the charge must have been amended, for examination thereof discloses a specific instruction that the matter must be viewed from the standpoint of the defendant alone. In the same bill appellant also excepts to the charge and all those parts of same on the law of provoking a difficulty, as an abridgement of his right of self-defense. We are of opinion that the question of provoking a difficulty was in this case. Appellant and another went to the home of deceased, and, according to the state's testimony, appellant declined to answer when deceased spoke civilly to him twice; then standing by his car in front of the yard gate of deceased, who was inside the yard, appellant said to deceased, "I want to speak to you," and when deceased walked out to the car appellant said something to him so low the witness could not hear, but further said to deceased "I will turn you out, too," and then also said "You won't get anything you make on the Mose Miller place," to which deceased replied, "The law would do that," whereupon appellant pulled out a pistol and deceased ran into his house and got his gun, and while deceased was so doing appellant went around his car and kind of hid himself, but watched the west door, and as quick as he got a glimpse of deceased, shot him down. These facts speak for themselves and need no argument or discussion at our hands. Whether the above was true and the real version of what took place, was for the jury.

In said bill appellant also excepted to that part of the court's charge on provoking a difficulty, which is as follows: "You are further instructed as a part of the law as set forth in the next two preceding paragraphs of this charge, that the defendant had the right to go to the house of the deceased on the occasion of the homicide for the purpose of seeking an amicable adjustment of their...