Bazanno v. State

• Decision Date: 07 December 1910
• Citation: Bazanno v. State, 132 S.W. 777, 60 Tex.Cr.R. 507 (Tex. Crim. App. 1910)
• Parties: BAZANNO v. STATE.
• Court: Texas Court of Criminal Appeals

132 S.W. 777

BAZANNO v. STATE.

Court of Criminal Appeals of Texas.

December 7, 1910.

Appeal from District Court, Orange County; W. B. Powell, Judge.

Albert Bazanno was convicted of manslaughter, and he appeals. Affirmed.

John Mobley, Asst. Atty. Gen., for the State.

RAMSEY, J.

In this case appellant was convicted in the district court of Orange county on May 21, 1909, on an indictment charging him with murder, of the offense of manslaughter, and his punishment was assessed at confinement in the penitentiary for a period of three years. The evidence showed a killing utterly without excuse, and there seems to be no occasion or necessity to set out here the facts. The defense relied on was that of insanity. There are no bills of exception in the record, and the motion for new trial raises but few questions, all of which we will now notice.

1. The first is that the court erred in permitting the witness Mrs. Albert Dunlap, over the objection of defendant, to testify as to the movements and actions of the deceased, Denny Harris, on the day of the homicide and prior thereto, because said actions and movements were not in the presence of appellant, and there was no testimony showing that he had any knowledge of said actions and movements of Denny Harris, and appellant could not be charged with the knowledge of such movements and the causes thereof. This witness testified in substance that deceased left her house about 11:30 o'clock the morning he was killed; that he came by where she was stopping with her daughter; that he had a lead horse; that he stated he was going out to George Foreman's to take the horse there, and that he was going to the next house to get a saddle. This, it appears from the statement of facts, was objected to for the reason that appellant was not present, and the movements of Harris on that day cannot be charged to him and is no evidence against him. The testimony was explanatory of the presence of the deceased at the place where he was killed, which was quite a distance from the place where his mother saw him, and was a mere matter of inducement. The cases in which the actions, declarations, and intentions of a decedent are held not to be admissible against a defendant who has no notice of them, has always been limited to cases where the issue of self-defense arose in the case, and where such acts and movements of the deceased could be held to be hostile in their character, and where such defendant had a right to act upon an...