Fulcher v. State

• Decision Date: 12 March 1890
• Citation: 13 S.W. 750
• Parties: FULCHER <I>v.</I> STATE.
• Court: Texas Court of Appeals

13 S.W. 750

FULCHERv.

STATE.

Court of Appeals of Texas.

March 12, 1890.

Appeal from district court, Jones county; J. V. COCKRELL, Judge.

F.G. Thurmond, for appellant. Asst. Atty. Gen. Davidson, for the State.

WHITE, P. J.

Appellant was convicted of murder of the first degree, his punishment being assessed at death. Several bills of exception saved to the ruling of the court present the principal matters complained of as error.

1. The defendant's first and third bills of exception relate to the same subject-matter. The witness Brock, over objections of the defendant, was permitted to testify as to a letter written by the deceased to the defendant the summer before the killing, and which deceased asked the witness to convey to the defendant, and at the same time requested witness to "tell defendant, Fulcher, that if he did not bring his things back to him that he would get them by law; that he had been to Estacado, and found out what the law was." The witness Askings was also permitted to testify, over objections of defendant, what was said by the witness Brock to defendant's wife at the time Brock delivered to her the letter written by deceased to her husband, demanding the return of his property, and threatening, in case the property was not returned, that he (deceased) would have both defendant and his wife arrested for theft. The objection urged to the admissibility of this testimony was that defendant was not present on either of the occasions. It is amply established by other evidence in the case that defendant knew all about the letter deceased had written him concerning the return of his property, — in fact, the letter was read in Fulcher's presence; and Askings says in his testimony that the whole subject of the return of the property was discussed in conversation between himself, the defendant, and defendant's wife. Under the circumstances, if the evidence had been illegal and inadmissible, its admission would have been harmless error, of which defendant could not complain.

2. Another exception was to the admission of the testimony of the witness Campbell to the effect that on the second night after the shooting defendant, after having been arrested, was brought back to the Matador ranche, and carried into the presence of the wounded man, and that "they spoke to each other, and Beemer identified Fulcher as the man who had shot him." Objection urged to this testimony is that it only shows the opinion of the witness. We think the evidence was admissible. "When the opinion is the mere short-hand rendering of the facts, then the opinion can be given, subject to cross-examination as to the facts upon which it is based." Whart. Crim. Ev. (9th Ed.) § 458; Willson, Crim. St. § 2502, p. 239; Powers v. State, 23 Tex. App. 43, 5 S. W. Rep. 153; Irvine v. State, 26 Tex. App. 37, 9 S. W. Rep. 55.

3. Bill of exception No. 5 complains of the admission of the statements of the wounded man made to the witness Campbell about 30 minutes after he was shot, as to the circumstances of the shooting and who shot him. Deceased was shot in the neck, and his articulation was affected by the blood collecting in his throat. About 15 minutes after he was shot Campbell administered to him some brandy and camphor to clear up his throat, and about 15 minutes afterwards, when he was able to talk, deceased made the statements complained of. Under the circumstances shown we are of opinion the declarations were admissible as res gestæ. Willson, Crim. St. § 1046; Stagner v. State, 9 Tex. App. 441; Warren v. State, Id. 619; Washington v. State, 19 Tex. App. 521; Pierson v. State, 21 Tex. App. 15; Smith v. State, Id. 277; Irby v. State, 25 Tex. App. 203, 7 S. W. Rep. 705.

4. The witness Campbell was also permitted to testify as to the making of a dying declaration by deceased a few days after the shooting, which declaration was reduced to writing by witness, and sworn to by deceased before the witness as a notary public; and in connection with this testimony said written declaration was also offered and read in evidence. In our opinion, a proper predicate for the admission of the dying declarations was laid, and the evidence was properly admitted. Willson, Crim. St. § 1045; Miller v. State, 27 Tex. App. 63, 10 S. W. Rep. 445. Deceased was shot on the night of the 14th of September. A few days thereafter the dying declarations were made and reduced to writing, but deceased lived until the 4th day of November following. At the time he made the declarations we think it is clear that he then felt conscious of approaching death, and believed there was no hope of his recovery. There is no testimony showing that subsequent to making the declarations, and before his death, his mind ever changed, as to his condition, or as to his "immediate apprehension of death." Edmondson v. State, 41 Tex. 497.

5. Defendant's second bill of exceptions shows that the state's witness Wells, on his examination in chief, was permitted, over defendant's objections, to testify that "the day after Beemer was killed, as I afterwards ascertained, I returned to my home about the middle of the afternoon. I found there Jeff Boon and Tom Stewart and [defendant] T. J. Fulcher. Stewart and Boon had arrested Fulcher, and had him in custody when I arrived. I afterwards heard Stewart say to Fulcher, `We have arrested you for killing Beemer last night;' whereupon Fulcher seemed agitated, and turned pale." This testimony was objected to because the defendant was under arrest at the time. The court in explaining this bill states that he limited the witness' testimony to the fact as to whether or not any visible impression was made on defendant when he was charged with the murder. Had defendant not been under arrest, there is no question but that his acts and conduct, as well as appearance when charged with the murder, would have been admissible as evidence against him. Noftsinger v. State, 7 Tex. App. 302. And even after arrest it was formerly held, in the ...