Christian v. State

• Decision Date: 05 November 1913
• Citation: 161 S.W. 101
• Parties: CHRISTIAN v. STATE.
• Court: Texas Court of Criminal Appeals

Page 101

161 S.W. 101

CHRISTIAN v. STATE.

Court of Criminal Appeals of Texas.

November 5, 1913.

Rehearing Denied December 3, 1913.

Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.

Ed Christian was convicted of first degree murder, and appeals. Affirmed.

F. M. Ball and George, Hancock & Hardwicke, all of Dallas, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

PRENDERGAST, P. J.

The appellant was convicted of murder in the first degree and the death penalty assessed.

We think it unnecessary to give any detail statement of the evidence by the several witnesses but will give a summary of it as a whole. It clearly authorized the jury to believe and find that in daytime in the evening of September 9, 1910, four negroes, to wit, appellant, Ed Christian, Ed Long, George Williams, and Willie Wyatt, by mutual consent, met at the house of Ed Long, in the city of Dallas, Tex., and entered into a plot and conspiracy to that night rob or burglarize a Texas & Pacific box car while being pulled into the city of Dallas; that Wyatt lived about one mile, or some distance, from Ed Long's, and that they all sent said Wyatt to his (Wyatt's) house to get his six-shooter and to swap it with one Lee Jeffries for a Winchester; that appellant said he wanted to trade the pistol for a rifle for long-range shooting; that Wyatt went home, got his pistol, and went by to see Jeffries to make the said exchange but, not finding Jeffries, did not make the exchange but took the pistol back to Ed Long's where the others were awaiting his return; that, when he returned to Long's, two officers in plain clothes were there and, seeing he had something under his coat, inquired what it was, and he told them it was his six-shooter. They thereupon arrested him for carrying the pistol, and soon afterwards placed him in jail and kept him until some time the next day; that the said four persons and no others entered into said plot and conspiracy; that that night, about or after midnight, said conspirators, other than Wyatt, did board a Texas & Pacific freight train pulling into Dallas and at or near the Fair Grounds burglarized one of the box cars and threw out therefrom, on the right of way, two boxes of goods; that Ed Long at once hired and procured a one-horse wagon and a small gray mule with small feet, returned to the place where they had thrown out said goods, the other two there awaiting his return, and as soon as he did so loaded the said goods into the wagon and started off therewith down the right of way; that Henry Bennett, the deceased, was a deputy sheriff whose duties were to look after offenses of burglarizing and stealing goods from railroad cars in said city; that immediately, or soon after this burglary, he was informed thereof and immediately went to investigate it and if possible apprehend the criminals and arrest them and prevent their getting away with said goods; that when he got near where the goods were thrown out he saw three persons loading said boxes in a wagon and then come down the right of way from where they had just loaded them, one of them in the wagon driving, the other two walking; that he secreted himself behind a gate post where, it seems, the parties were to come off of the right of way and leave the railroad, and that when they got very close to him he drew his pistol, presented it at them, and commanded them to halt or hold up; that then appellant, who was one of the two on the ground, immediately stepped from behind the mule and fatally shot the deceased, he dying the next day or the day following; that these three conspirators then made their escape with the goods and went to the residence that night of Lena Tennison with said goods in said wagon drawn by said mule, and appellant awoke him from his bed and endeavored to get him to let them leave these goods secreted at his house, but he declined, and they then left, sold the goods, returned the mule and wagon to the place and person from whom they had hired them, paid for the hire, and the next day divided with said Wyatt (who that day had been released from jail) the proceeds of the sale, paying him $50 as his portion thereof. The evidence tends to show that appellant then left Dallas and succeeded in keeping his whereabouts unknown to the officers and evaded arrest until some year or two later when he was found and arrested in Limestone county, Tex.

Appellant objected to the testimony of E. R. Meeks as to what the deceased said to him as to who shot him or the facts or circumstances surrounding the shooting, because his testimony did not show that at the time deceased made said declarations to the witness he was conscious of approaching death and believed there was no hope of recovery. The court admitted the testimony, holding that it was admissible as a dying declaration and also as res gestæ. It was not objected to because it was not res gestæ. If it was admissible as res gestæ, the court's ruling was correct, even though it might not have been admissible as a dying declaration.

It is shown by the bill that the witness Meeks was about a half mile from where the shooting occurred and heard it; that he immediately ran there, found deceased shot and lying upon the ground at the place where the shooting occurred and at once voluntarily told the witness the circumstances of his being shot and described the person who shot him and one of the others, the wagon and the mule drawing it. Deceased was suffering intensely from the shot. We are well satisfied that the evidence was clearly admissible as res gestæ. Rainer v. State, 148 S. W. 736.

The testimony of this witness further shows that, at the time when they helped the deceased in the ambulance, he took deceased's head in his lap and handed him his pistol; that the deceased replied to him: "Take the gun and take care of it. I will never have any more use for it." To take the testimony of this witness alone, shown by the bill, we think it shows satisfactorily that at the time of making said declaration he was conscious of approaching death and believed there was no hope of recovery, substantially in compliance with the statute on this subject. Article 808, C. C. P. This was the only ground upon which the testimony was objected to. All the other requisites of the statute are shown to have been complied with. Miller v. State, 27 Tex. App. 63, 10 S. W. 445. It is shown that his wound was necessarily a fatal one.

Lena (Eugene) Tennison was an important witness for the state and gave material testimony against appellant. The defendant, on cross-examination of him for the purpose of impeaching him by Ada Tennison, asked him if he did not make certain statements to her which would be contradictory if not the reverse of what he testified on the trial. He denied making any such statements to her. Appellant placed her on the stand, and she testified that Lena Tennison did make the statements to her which he had denied. The state subjected her to a severe cross-examination, whereby her reputation for truth and veracity was placed in issue before the jury. What this examination was is in no way disclosed by the bill. Thereupon, for the purpose of sustaining her general reputation for truth and veracity, appellant introduced Mrs. Tabler, who showed that she had lived in Longview many years where Ada Tennison lived and that Ada had worked for her many years, and that she knew Ada's general reputation for truth and veracity at Longview and it was good. On cross-examination of Mrs. Tabler by the state, it was shown by Mrs. Tabler that Ada had been operated on about a year before this trial and since then she had been in a feeble condition; and the state then asked her if Ada Tennison was not forgetful since said operation. Upon objection by the appellant this question was excluded from the jury and was not answered. Upon the state then asking some other questions and establishing that Mrs. Tabler had seen Ada Tennison every day for the past year, except about one month, and that she had worked for her constantly, the state's attorney repeated the question, "You state she is forgetful?" The appellant again objected to this question; and, while the bill states the court overruled the objection, it also shows that no answer whatever was had from the witness. Then, the state proceeding with its cross-examination of Mrs. Tabler, she testified that Ada Tennison's reputation for truthfulness had changed within the last 12 months and that she was not as truthful as before then. Then asked, "She told you stories?" Appellant objected to this question, and the court sustained his objection, and no answer thereto was had.

Great latitude is always permitted in the cross-examination of a witness. It seems this bill merely complained of the said certain questions which were asked by the state's attorney but not answered. The bill in no way shows any reversible error. Sweeney v. State, 146 S. W. 885, 886, and cases cited.

The only other bill appellant has is he complains that the court would not permit him to introduce Ed Long and have him testify. Said Long was then also under indictment in the lower court for the killing of deceased, as well as this appellant, though under a separate indictment. The court, of course, committed no error in refusing to permit Ed Long to testify. The statute itself makes him incompetent. Article 791, C. C. P. Appellant urges many objections to the court's charge. Before discussing these objections, we will state some of the well-established rules pertaining to the giving of charges and how the court's charge shall be construed. These are:

(1) The charge must submit to the jury every phase of the case made by the evidence and every legitimate deduction to be drawn therefrom.

(2) The charge should be framed with reference to the whole evidence adduced on the trial.

(3) The court is not limited or restricted by the testimony of appellant in his own behalf as to...