Elliott v. State

• Decision Date: 13 March 1929
• Docket Number: (No. 12092.)
• Citation: 15 S.W.2d 648
• Parties: ELLIOTT v. STATE.
• Court: Texas Court of Criminal Appeals

15 S.W.2d 648

ELLIOTT v. STATE.

(No. 12092.)

Court of Criminal Appeals of Texas.

March 13, 1929.

Appeal from District Court, Cottle County; Isaac O. Newton, Judge.

James Elliott was convicted of murder, and he appeals. Reversed and remanded.

McClintock & Marable, of Paducah, for appellant.

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

HAWKINS, J.

Conviction is for murder, punishment being assessed at 65 years in the penitentiary.

Witness Bigham lived about a mile west of the town of Paducah in Cottle county. On the night of the killing witness heard three shots, immediately followed by "hollering." Witness found deceased wounded and apparently attempting to reach witness' house. Deceased told witness a white man and a negro who worked at the compress had shot him. A dying declaration of deceased was put in evidence by the state, in which deceased said a white man whose name he did not know, but who was the man Mr. Payne (an officer) had arrested and placed in jail for being in bed with a negro woman, and a negro called "Compress Shorty," who had on a previous occasion run deceased with a knife, had forced deceased into a car at the point of a pistol, brought him to the place, and shot him. The white man described by deceased was identified by other evidence as F. R. Hale, and the negro known as "Compress Shorty" was identified by other evidence as James Elliott (this appellant), who was alone upon trial. He denied the killing or any participation therein, denied that he knew Hale or had ever been with him on the night of the homicide or at any other time, and interposed an alibi as his defense.

Bill of exception No. 1 brings forward complaint at the action of the court in admitting in evidence a dying declaration, the ground of objection being that no proper predicate was laid for its introduction. The bill sets out the testimony of one witness bearing on the predicate, but it is not certified in the bill that it contains all the evidence upon that issue. In Hill v. State, 88 Tex. Cr. R. 179, 225 S. W. 521, Judge Davidson, speaking for the court, said:

"A bill of exceptions will be held insufficient when taken to supposed error in admitting evidence of a dying declaration without laying the proper predicate, and to be sufficient it must contain and state that it does contain all the predicate laid upon which the declaration was admitted, and must further also set out the declaration. Highsmith v. State, 41 Tex. Cr. R. 37 [50 S. W. 723, 51 S. W. 919]; Edens v. State, 41 Tex. Cr. R. 523 ; Hopkins v. State [Tex. Cr. App.] 53 S. W. 621; Gutirrez v. State [Tex. Cr. App.] 59 S. W. 274; Medina v. State, 43 Tex. Cr. R. 53 ; Francis v. State, 75 Tex. Cr. R. 362, 170 S. W. 782."

Later cases are Kennamer v. State, 93 Tex. Cr. R. 430, 247 S. W. 560; Quinn v. State, 103 Tex. Cr. R. 179, 279 S. W. 458. Other authorities are collated in Branch's Ann. Tex. P. C. § 1864. Under the authorities we must hold the bill insufficient to manifest error. If there should be a question as to the sufficiency of the predicate to admit the dying declaration upon another trial it should be submitted to the jury under appropriate instructions.

It is recited in another bill (No. 2) that J. M. (Bud) Barron testified that some 30 minutes after the shooting Mackey told witness that a white man and a negro got him in a one-seated Ford car and carried him out there and shot him; that he (Mackey) said he did not know the white man, but described him as the one Mr. Payne (an officer) locked up when he found the man in a negro woman's bed; that Mackey also said he did not know the negro's name only that they called him "Compress Shorty," the one who had run at him with a knife before that. Appellant objected to the foregoing evidence, the ground of objection being that it was not shown to be res gestæ, because, (first) considerable time had elapsed since the shooting; (second) deceased had prior thereto talked to several other persons; (third) deceased had had medical attention; and (fourth) it was not spontaneous and was made in answer to interrogatories by the witness. The second, third, and fourth reasons appear in the bill as grounds of objection only unsupported by certificate that the facts were true which formed the basis of such objections. Bills in this form are incomplete. (For authorities see Branch's Ann. Tex. P. C. § 209, and note 23, art. 667; Vernon's Ann. C. C. P. vol. 2.) The only tangible thing left in the bill is the complaint that the statement was made 30 minutes after the shooting. This within itself furnishes the court no sufficient data to hold the statement inadmissible. Lapse of time alone is not the controlling question. Whether a given statement is admissible varies with each particular case. McGee v. State, 31 Tex. Cr. R. 74, 19 S. W. 764; Bronson v. State, 59 Tex. Cr. R. 17, 127 S. W. 177. (For other authorities see Branch's Ann. Tex. P. C. § 83.) In the absence of a recital in the bill of facts sufficient to show the ruling of the court to have been erroneous we must presume it to have been proper. We are not to be understood as holding that the statement made by deceased to Barron was admissible as res gestæ we simply hold that the bill furnishes no sufficient data upon which we can say the statement was inadmissible.

We see no impropriety in admitting the evidence of the witness Beltz, complained of in bill No. 5, that on the evening of the killing Hale was driving a car belonging to witness. It was shown that this car was equipped with "high-pressure" tires on the front wheels and "balloon" tires on the rear wheels, and the imprint of the automobile casings at the place of the homicide showed the car used by the perpetrators of the crime was similarly equipped.

The negro killed was commonly known as "Broom." The indictment alleged his name to be "Joe Mackey." In some places in the...