Fisk v. State, 41504
Citation | 432 S.W.2d 912 |
Decision Date | 23 October 1968 |
Docket Number | No. 41504,41504 |
Parties | Edgar Woodrow FISK, Appellant, v. The STATE of Texas, Appellee. |
Court | Court of Appeals of Texas. Court of Criminal Appeals of Texas |
John J. Herrera, Edward Benavides, Houston, for appellant.
Carl S. Vance, Dist. Atty., Phyllis Bell and I. D. McMaster, Asst. Dist. Attys., Houston, and Leon B. Douglas, State's Atty., Austin, for the State.
The offense is murder without malice; the punishment, assessed by the jury, five (5) years in the Texas Department of Corrections.
The appellant was indicted for the murder of Florence Fisk, his wife, by shooting her with a gun.
All three of appellant's grounds of error relate to the action of the trial court in admitting into evidence statements made by the appellant at or about the time of his arrest by Officer Dilman. It is appellant's position that the statements were not admissible as res gestae utterances nor otherwise admissible in absence of a compliance with Articles 15.17 and 38.22, Vernon's Ann.C.C.P.
At approximately 1:30 a.m. on July 13, 1966, a single shot awakened a neighbor of the appellant. A few minutes later appellant's young son appeared at the neighbor's house and requested that the police and a doctor be called. The neighbor testified that about five minutes later he observed a green and white Plymouth automobile back out of appellant's driveway and 'head up the street.' The police arrived within five minutes of receiving the call at 1:45 a.m. and found appellant's wife lying in a pool of blood. Before being taken to the hospital she stated to the police that her 'old man' had shot her. At approximately 1:50 a.m. a description of appellant's automobile was broadcast to all Houston police units. Twelve minutes after such broadcast at 2:02 a.m. appellant in a green and white Plymouth was spotted by Officer Dilman, within five miles of the scene of shooting. Dilman followed appellant for six blocks and when both stopped at a red traffic light obtained appellant's name and verified by radio that he was the suspect wanted. Dilman then asked the appellant to get out of the car.
On direct examination of Officer Dilman the following testimony was elicited by the State:
'A. Fisk stated he had had enough of them and lost his temper and shot her.
At approximately 3:20 a.m. appellant's wife was pronounced dead at the hospital. The cause of death was exsanguination from a gunshot wound of left femural artery.
Testifying in his own behalf, appellant claimed that the rifle went off accidentally in a struggle with his wife following an evening of quarreling and discord. The physical evidence, particularly the absence of powder burns, was at a variance with appellant's testimony and the jury rejected his defense. While denying the statements attributed to him by Officer Dilman, appellant admitted that at the time he was excited and in a state of shock.
It is appellant's position that because of the time-space lag (approximately 35 minutes and 5 miles) between the shooting and the statements complained of (if made), they could not have been spontaneous declarations.
The general rule is appropriately stated in 24 Tex.Jur.2d, Evidence, Sec. 581, p. 102:
In determining the admissibility of spontaneous declarations are element of time is an important factor to take into consideration, but it is not the controlling factor. The paramount factor, upon which time has an important influence, 'is whether the person who made the statement or declaration was still dominated at the time by emotions instigated by the happening of the principal act or event.' 24 Tex.Jur.2d, Evidence, Sec. 585, p. 113. See also 'Res Gestae Confession,' 17 Baylor Law Review 460.
Fowler v. State, Tex.Cr.App., 379 S.W.2d 345, presented a fact situation similar to the case at bar. Fowler was prosecuted for failure to stop and render aid. He was apprehended some 25 minutes after the accident and 10 blocks from the scene. Through the arresting officers, the trial court allowed the statement, attributed to Fowler, 'We are trying to get the fender pulled back out so we can go back to the scene of the wreck.' In affirming the trial court's action, this Court said:
In Keefe v. State, 50 Apiz. 293, 72 P.2d 425, it was said:
'The true test in spontaneous exclamations is not when the exclamation was made, but whether under all the circumstances of the particular exclamation the speaker may be...
To continue reading
Request your trial-
Allridge v. State
...embrace such factors as time elapsed, and, more importantly, spontaneity, or whether the statement was instinctive. See Fisk v. State, 432 S.W.2d 912 ( [Tex.Cr.App.] In the instant case appellant made his statements approximately seventeen to eighteen hours after the offense and seven to ei......
-
Phenix v. State, 44847
....... .' See also Fisk v. State, 432 S.W.2d 912, 915 (Tex.Cr.App.1968). . Appellant's statement, a spontaneous exclamation uttered while the officers were ......
-
Glover v. State
...factor which makes these statements reliable. De Leon v. State, 500 S.W.2d 862, 867 (Tex.Crim. App.1973) (citing Fisk v. State, 432 S.W.2d 912, 915 (Tex.Crim.App.1968)). The fact that they relate to some occurrence other than the startling event itself or its cause should not make them less......
-
Denison v. State
...The statement was admissible as res gestae of the arrest. See Fowler v. State, 379 S.W.2d 345 (Tex.Cr.App.1964); Fisk v. State, 432 S.W.2d 912 (Tex.Cr.App.1968); Hood v. State, 490 S.W.2d 549 Appellant alleges the trial court improperly stated the law regarding probation during the punishme......