Davis v. State, 23118.
| Decision Date | 09 May 1945 |
| Docket Number | No. 23118.,23118. |
| Citation | 188 S.W.2d 397 |
| Parties | DAVIS v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from Criminal District Court, Dallas County; Winter King, Judge.
Robert Davis was convicted of murder, and he appeals.
Affirmed.
Currie McCutcheon and Geo. W. Allison, both of Dallas, for appellant.
Ernest S. Goens, State's Atty., of Austin, for the State.
The offense is murder. The punishment assessed is confinement in the state penitentiary for a period of twenty years.
The record shows that appellant and deceased had lived together, although not legally married, for approximately four or five years next preceding the day of the killing; that on the day in question they had been arguing, fussing and quarreling at intervals all day; that about 6 p.m., while the deceased was preparing to take a bath, they were both in a hostile mood and still quarreling; that the deceased requested appellant to leave, whereupon he told her to shut up, and when she replied, "You shut up", he shot her three times. One of the bullets struck her in the abdomen from the effects of which she died a few days later.
Appellant's defense was self-defense. His testimony is to the effect that after she had ordered him to leave and while he was gathering his clothes and other personal belongings for the purpose of leaving, she took a photograph which his nephew, who was in the Armed Forces of the United States, had sent him, and with an ice pick she mutilated the same by punching out the eyes in the photograph; that she then turned toward him and threatened to punch out his eyes, whereupon he got his pistol from under the pillow of the bed, and as she continued to advance upon him with the ice pick, he shot her in his own self-defense.
From the foregoing brief statement it will be noted that an issue of fact was raised which the jury decided adversely to him.
By Bill of Exception No. 1 appellant complains, first of the testimony given by Rosa Hill; and second, of that given by Jewel Madison. The bill reflects that Rosa Hill, a State's witness, testified that she lived near the home of the deceased; that on the day in question she heard three shots and about four or five minutes later she saw appellant coming out of the house with a pistol in his right hand and a shotgun in his left hand; that he calmly walked away; that about a minute later the deceased, who was barefooted and had nothing on her body except a brassiere and step-ins, came out of her home but immediately returned, put on a loose dress, then came out again and started walking in the direction of a cafe operated by her brother; that while the deceased was on her way to the cafe she (the witness) inquired of her if she was hurt, to which the deceased replied that she was, but would try to make it to her brother's cafe, which was about one and one-half blocks away. The bill further recites that Jewel Madison, who also lived in the immediate vicinity of the shooting, noticed the deceased holding her hand to her abdomen as she was going toward the cafe; that four or five minutes later the witness, Jewel Madison, went to the cafe and engaged the deceased in conversation; that the deceased, in response to a question, told the witness that she was shot; that Robert (appellant) shot her in the stomach. The witness then inquired of her as to what she was doing at the time, to which she replied that she was fixing to take a bath and that while sitting in a chair she and appellant were arguing; that she told him to leave and he told her to shut up, and when she told him to shut up, he shot her three times; that she did not have anything with which to protect herself, not even a pocket knife. The objection urged to this testimony was that it was hearsay, not res gestae, nor was it admissible as a dying declaration because a proper predicate for its introduction had not been laid. The trial court, in his qualification of the bill, states that he admitted the testimony as a part of the res gestae of the offense. The record shows that this statement was made by the deceased to the witness, Jewel Madison, within ten or fifteen minutes after the fatal shooting. The fact that it was made in response to interrogatories which did not suggest any particular reply would not prevent it from being res gestae; nor would the fact that after she came out of the house in almost a nude condition, then went back, put on a loose dress and again emerged from it for the purpose of going to the cafe prevent it from being res gestae. It occurs to us that the statement by the deceased was made well within the time limit so as to bring it within the rule of a res gestae declaration. In 18 Tex.Jur. p. 305, sec. 190, the rule is stated as follows: "The res gestae embraces not only the actual facts of the transaction and the circumstances surrounding it, but the matters immediately antecedent to and having a direct causal connection with it, as well as acts immediately following it and so closely connected with it as to form in reality a part of the occurrence."
This rule has been followed in the following cases: Hobbs v. State, 55 Tex.Cr.R. 299 (301), 117 S.W. 811; Pierson v. State, 18 Tex.Cr.App. 524, (562); White v. State, 30 Tex.Cr.App. 652, (654), 18 S.W. 462; Johnson v. State 67 Tex.Cr.R. 441, 149 S. W. 165; Puryear v. State, 56 Tex.Cr.R. 231, (240), 118 S.W. 1042.
Having reached the conclusion that the trial court was correct in holding the statement to be a part of the res gestae, the contention made by...
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