Downing v. State

• Decision Date: 01 May 1929
• Docket Number: (No. 12047.)
• Parties: DOWNING v. STATE.
• Court: Texas Court of Criminal Appeals

20 S.W.2d 202

DOWNING v. STATE.

(No. 12047.)

Court of Criminal Appeals of Texas.

May 1, 1929.

Rehearing Denied October 9, 1929.

Commissioners' Decision.

Appeal from District Court, Taylor County; M. S. Long, Judge.

J. B. Downing was convicted of murder, and he appeals. Affirmed.

Cox & Hayden, of Abilene, for appellant.

A. A. Dawson, State's Atty., of Austin, for the State.

MARTIN, J.

Offense, murder; penalty, two years in the penitentiary.

Appellant was an attendant at the Abilene State Hospital where epileptic patients were confined. The deceased, Joe Marze, was a patient in said institution at the time of and long prior to his death. The indictment alleges that appellant killed Joe Marze by kicking and striking him with his foot. The evidence for the state shows that appellant took deceased into a stool room to treat his mouth and there inflicted injuries upon him which resulted in his death some two or three days later.

Bills of exception Nos. 8 and 9 present the alleged error of the court in admitting in evidence before the jury the dying declarations of deceased made a short while before his death to an attending physician. The testimony shows that Joe Marze was admitted to the epileptic colony or state hospital in 1904 from an insane asylum, and that there existed against him an unvacated lunacy judgment. If we comprehend appellant's contention, it is that no sufficient predicate was laid for the admission of the alleged dying declaration and that same was further inadmissible because the declarant was insane. It appears from these bills of exception that a witness testified deceased said before he made the alleged dying declaration that he thought "he was going to die. * * * He was mumbling to himself and to me, when I was examining him. He said he would not get well. He did not say that he knew he was going to die, or was sure that he was going to die. * * * The substance of it was that he thought he was going to die, or was going to die. The substance of what he said was that he was going to die. That was the extent of it. The statement which he made to me was voluntarily made. I did not ask him any questions. He was rational." We think this testimony is sufficient to show that a proper predicate was proven for the admissions of the statements of deceased as dying declarations. Hunnicutt v. State, 18 Tex. App. 516, 51 Am. Rep. 330; Branch's P. C. § 1863. It is gravely doubtful whether the bills are sufficient to present this question, under the following rule: "A bill of exceptions taken to the supposed error in admitting proof of a dying declaration without laying the proper predicate to be sufficient must contain, and state it contains, all the predicate laid upon which the declaration was admitted, and must also set out the declaration." Highsmith v. State, 41 Tex. Cr. R. 37, 50 S. W. 723, 51 S. W. 919; Branch's P. C. § 1864.

In neither of these bills is it made to appear that any objection was made to the testimony because the declarant was insane at the time, and the question of its inadmissibility on the ground of insanity is not properly presented for review. We are inclined to the view, however, if such objection had been made that it would have had no merit.

The rule is stated by Mr. Underhill as follows: "A witness is not incompetent to testify upon the grounds of his insanity merely because he has been adjudged insane and has been confined in an insane asylum. Evidence of these facts is not conclusive of his insanity. They raise a prima facie presumption of incompetency which the party offering the witness must overcome. The question is one wholly for the trial court in determining the competency of the witness. There is no presumption that insanity shown to have existed has continued down to the date of the trial. The court should consider the conduct and actions of the witness in the court room and may also take into consideration his manner of giving testimony. If the witness appears rational and meets the tests imposed by law in case of the alleged insanity of a witness, he is competent, though it may appear that at one time he was in an asylum for the insane." Underhill's Criminal Evidence (3d Ed.) par. 328. See, also, Nations v. State, 91 Tex. Cr. R. 112, 237 S. W. 570; Batterton v. State, 52 Tex. Cr. R. 381, 107 S. W. 826; Singleton v. State, 57 Tex. Cr. R. 560, 124 S. W. 92; article 708, Code Cr. Proc. 1925.

Such a question is a judicial one, and we may indulge the presumption, in support of the court's ruling, that he had before him at the time such facts as properly showed the declarant competent, especially in the absence of a showing to the contrary in the bills.

Bills 5 and 6 present the alleged error of admitting certain statements of deceased made a short time after he emerged from the stool room where the state contends he was fatally injured. Another inmate testified that deceased said to him: "Joe Marze said that he did not expect to get over it. He said he did not expect to get well, that he was too badly hurt." This was objected to as hearsay, the appellant not being present and it not being res gestæ. The court certified that this was admitted as a predicate to the introduction of the dying declaration of deceased. In view of the contest made by appellant as to the existence of a proper predicate for the admission of deceased's alleged dying declaration, we think the testimony was admissible upon the theory stated by the court.

Complaint is made that the witness was also permitted to testify that deceased told him he had been "beaten and kicked unmercifully." This latter statement was stricken by the court and the jury instructed not to consider same. We do not think either of these bills present any error. We are not certain but that these bills might properly be disposed of on the ground that the alleged declarations were a part of the res gestæ; but we forego any discussion of this, as the above, we think, correctly disposes of appellant's contention.

The state proved over objection by appellant that he was then under indictment for assault to murder. This was objected to as prejudicial. It has so oftimes been decided that such testimony is admissible as affecting the credibility of the accused as a witness, that we cannot believe any discussion of this point is necessary.

We deem the evidence sufficient, and, there being no errors in the record, the judgment is affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

MORROW, P. J., not sitting.

On Motion for Rehearing.

MORROW, P. J.

Dr. Freeman, a physician in the Abilene State Hospital, testified that he was instructed to examine the deceased but to ask him no questions; that during the examination the deceased gave information, either by words or actions, that he was conscious of the approaching death and said that he thought he was going to die or was about to "pass out." He was rational at the time. He did not say in terms that he knew he was going to die. The deceased said that the attendant on No. 6 threw him down and stomped him. He called no name. The objection was general; that is, there had not been a compliance with all of the necessary statutory preliminary requirements; that the circumstances surrounding the testimony as a whole are not sufficient to comply with the statutory requirements. Deceased at the time was suffering from severe injury which, on the day following the declaration, resulted in his death. An autopsy disclosed the abdomen full of blood, the liver and spleen ruptured, the covering of the intestines lacerated, and three ribs broken. There were also external injuries. As a predicate for receiving in evidence a dying declaration, it is not essential that the declarant shall state in specific terms that he is conscious of impending death. It is enough if it satisfactorily appears in any mode that they were under that sanction, whether it be proved by the express language of the declarant, or be inferred from his evident danger, or the opinions of the medical or other attendants stated to him, or from his conduct or other circumstances of the case; all of which are resorted to in order to ascertain the state of the declarant's mind. Hunnicutt v. State, 18 Tex. App. 499, 51 Am. Rep. 330. See collation of authorities in Vernon's Tex. Code Cr. Proc., 1925, vol. 2, p. 805. Tested by the objections addressed to dying declarations, the ruling of the court seems manifestly correct.

At some undisclosed stage of the trial, a written motion was presented to the court setting out the statutory requisites of a dying declaration and requesting the court to instruct the jury to disregard the declaration in question. The request was refused and exception reserved, and appellant points to it as sustaining his present contention that this court must take cognizance of the claim that the deceased was not of sound mind for the reason that he had been adjudged insane. As to the motion above mentioned, it is not preserved in the shape of a bill of exceptions, and its efficacy to require review is doubtful. Dealing with the subject upon its merits,...