Freeman v. State

• Decision Date: 10 May 1899
• Citation: 51 S.W. 230
• Parties: FREEMAN v. STATE.
• Court: Texas Court of Criminal Appeals

51 S.W. 230

FREEMAN v. STATE.

Court of Criminal Appeals of Texas.

May 10, 1899.

Motion for rehearing. Overruled.

For former opinion, see 46 S. W. 641.

Cecil Smith, J. H. Glasgow, and J. M. Morgan, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.

HENDERSON, J.

This case was affirmed at the last Austin term, 1898, and motion for rehearing was presented and argued at the Tyler term, 1898. The motion and argument of appellant's counsel particularly calls in question the action of this court in holding that the statement of the deceased, made directly after the difficulty which ultimately caused his death, was erroneous. In the original opinion we did not discuss this matter at length, but stated the question in general terms, citing authorities. We now set forth appellant's bill of exceptions on this subject in full: "Be it remembered that upon the trial of the above styled and numbered cause the state showed by the witness Newberry that he was standing 60 or 70 yards from defendant and deceased at the time of the difficulty, and that after the difficulty the deceased left defendant, and came toward his (deceased's) saloon, which saloon was 60 or 70 yards from the place of the difficulty; that the witness ran toward deceased, and met him about half way between the saloon and the place of the difficulty, at which time deceased remarked to witness `that that damned son of a bitch has killed me over that coon.' The deceased then told witness to go after the doctor for him, and witness then told deceased to give him his keys to the saloon door. Deceased then took the keys to the door out of his left pants pocket, with his right hand, and gave the keys to the witness, and witness went on, and opened the saloon door, and turned back, and met deceased about 10 steps from the saloon, and assisted deceased to sit down in the saloon door. When deceased sat down in the saloon door, he said, `I believe I will faint.' Witness then fixed a blanket back in the saloon, and we put deceased upon it, at which time deceased fainted, and remained in a fainting condition for about 10 minutes before he recovered; and about 15 or 20 minutes after he recovered, and after the wounds were dressed, deceased stated to Aunt Nancy Johnson, in my presence, that he was not afraid to die; that `some people look down on the saloon business, but I have never wronged any person out of a cent, and have tried to live honest'; and then went on to state that `when the defendant met me he asked me if I had seen anything of his coon, and I told him I had not; and I said, "Why?" and defendant said, "some God damned son of a bitch had turpentined his coon while he had gone to dinner." I said, "I had something to do with that, and I do not want to be called such names." Defendant said, "If you did, you are a damned son of a bitch." I then struck the defendant, and about the same time defendant struck me. I knocked the defendant down, but I did not know I was cut until I tried to reach out my left hand to take hold of defendant, and found that my left arm was paralyzed. After the defendant cut me, I saw the knife in his hand. It was a large knife, with a blade 3 or 4 inches long, with a sharp curved point.' The state offered the evidence of the deceased's remarks as detailed by the witness Newberry as res gestæ, which statements were made between 30 and 60 minutes from the time of the difficulty. To all of which statements of the deceased, as detailed to Mrs. Johnson, in reference to how the difficulty took place, in the presence of the witness Newberry, the defendant objects, for the reason that such statements so made to Mrs. Johnson in presence of the witness Newberry were not admissible as res gestæ in the trial of said cause; which objection on the part of defendant the court overruled, and allowed said witness Newberry to detail to the jury the statements of the deceased made to Mrs. Johnson as to how the difficulty occurred. To which ruling of the court the defendant excepts," etc. It will be seen from the above bill of exceptions that appellant does not object to any particular statement of the deceased, as, to wit, that he said that he was not afraid to die, etc., but the general objection urged is that the detailed statement of the deceased to Mrs. Johnson in reference to how the difficulty occurred was not res gestæ. In the very able and exhaustive brief filed by appellant on motion for rehearing he urges that the length of time that elapsed between the time deceased was cut by appellant and the statement made, being about 60 minutes, is a circumstance tending to show that said statement was not res gestæ; that, in addition to this, appellant went about other things, to wit, that he sent for the doctor; that he asked the witness Newberry to open his saloon door, and got his keys out of his pocket for that purpose; that he then remarked that he was about to faint, and sat down on the gallery; that after this he did faint, and was removed into the saloon; that he remained unconscious for some time; that, after consciousness returned, his wounds were dressed, and in about 15 minutes thereafter he made the statement referred to. And as further indicative of the fact that there was a break or let down in the continuity of his statement to Mrs. Nancy Johnson, he prefaced his statement with the remarks "that he was not afraid to die; that some people look down on the saloon business, but that he had never wronged any person out of a cent, and that he had tried to live honest." It is further insisted that said statement appears to be removed from the domain of res gestæ by the fact that it was in a narrative form.

There is no difficulty as to a definition of the term "res gestæ." Mr. Wharton defines "res gestæ" "as facts speaking for themselves through the instinctive words and acts of participants, and not in the words and acts of participants when narrating the facts. What is done or said by participants under the immediate spur of the transactions becomes thus part of the transaction, because it is thus the transaction which speaks." And at common law the res gestæ was strictly confined to the transaction itself. See Whart. Ev. §§ 262-264, inclusive; Underh. Cr. Ev. §§ 95-98, inclusive. The doctrine in some of the American states has been extended beyond the very time of the transaction, and the rule in Texas is very liberal in the admission of testimony as res gestæ. On this subject we...