Long v. State

• Decision Date: 26 April 1905
• Citation: 88 S.W. 203
• Parties: LONG v. STATE.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Criminal Appeals

88 S.W. 203

LONG v. STATE.^*

Court of Criminal Appeals of Texas.

April 26, 1905.

Appeal from District Court, Erath County; W. J. Oxford, Judge.

J. C. Long was convicted of murder, and appeals. Affirmed.

Nugent & Carter, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

This conviction is for murder in the second degree, five years' confinement in the penitentiary being fixed as the penalty.

Dr. Allen, testifying in behalf of the state, over the objections of appellant, was permitted to state that he waited upon deceased at the time of his death; that the gunshot wound produced his death; that he had a conversation, while attending deceased, about his condition, and deceased used the following language, "This is mighty bad, isn't it?" or words to that effect. This occurred the morning after the difficulty. The grounds of objections were that the dying declarations of deceased were put in writing by Justice of the Peace Herring "on the night of the homicide," and this was only the opinion of the witness, was not res gestæ, and inadmissible for any purpose, and hearsay. The court signs this, with the explanation that it was admitted as a part of the predicate for the introduction of the dying declarations. This testimony was admissible for the purpose stated by the court. While it was not sufficient to show, within and of itself, that deceased was then conscious of approaching death, it was admissible as tending to show his mental condition; and, when taken in connection with the other facts in regard to this predicate, we think, was admissible.

The bullet taken from the body of deceased was offered in evidence. Several objections were urged to its introduction, which we think untenable. The widow of deceased was permitted to testify that, upon hearing the shot fired which killed her husband, she ran immediately to the place where the difficulty occurred; that defendant was in his wagon, and she asked him: "Oh, Mr. Long! what did you shoot him for?" Defendant replied, "Don't you come down here with your gun. I have got as much lead as anybody." The objections urged were that the statement was not directed to deceased, could throw no light on the case, and was directed to another and different person than deceased, and, further, was irrelevant. This testimony was clearly admissible. It was made immediately after the shooting, and was brought within the rule of res gestæ.

The state introduced the following note in evidence: "Mr. J. T. Anderson: I have not got a free pasture. Keep your stock out. J C. Long." Various objections were urged to the introduction of this document. It was clearly admissible. One of the reasons for the trouble and killing was that deceased's (Anderson's) mules were getting inside the inclosure of appellant. The note was written on Thursday before the killing on Saturday. This was the first meeting after the note had been written by appellant to deceased.

A pair of pants and coat were exhibited before the jury, and identified as those worn by deceased on the night of the homicide. Objections are (1) that it tended to prejudice appellant before the jury; (2) immaterial; (3) could serve no purpose except to influence the minds of the jurors adversely to appellant; and (4) was not admissible for any purpose. We have held that under some circumstances the bloody clothes of deceased could not go before the jury. However, wherever they serve any legitimate purpose, or tend to illustrate any question or explain any thing or circumstance connected with the homicide, the clothing is admissible. It may be further stated in this connection that the admission of this character of testimony is like the admission of any other fact or circumstance in the case. If admissible, the fact that it may prejudice or injure appellant would not be cause for its rejection. If it even remotely tends to elucidate or illustrate any theory or issue, it is admissible, though it may not be of a cogent character. Its admission is like the admission of any other fact or circumstance, and, before reversal would be required, some injury must be shown. It is not the introduction of all irrelevant or immaterial evidence that will cause reversal. Where it is of such slight consequence as not to have assisted in bringing about a conviction or the enhancement of the punishment, we do not believe an appellate court would be called on to reverse. We believe this matter comes within the above rule, and, inasmuch as the jury gave appellant the minimum punishment for murder in the second degree, no injury is shown, even if erroneously admitted.

The daughter of deceased testified that she asked her father: "What did Mr. Long say to you, and how did he come to shoot you?" Deceased replied, "I stopped Mr. Long and asked him what of my stock had been getting in, and he said, `Two mules,' and I asked, `How?' And he said, `Wherever they wanted to, or took a notion to.' And I says, `There must be a weak place in your fence.' He says, `No; they get over whenever they take a notion.' He says, `You must be the man that wired up my gate last night.' And I says, `I did.'" The bill then recites as follows: "And then he became so weak that he could not talk any more. And it was in evidence that Harper Herring, the justice of the peace, had taken his dying declarations in writing." Objection was urged that the declarations of deceased were taken properly and in writing, and were the best evidence of what occurred, and are not accounted for, and are in possession of the state, and that the statement of deceased was in response to the questions propounded by the witness; that such conversation is not a part of the res gestæ; and that the statement is not a complete narration of what occurred at the time of the homicide. The court qualifies this bill with this explanation "that at this time Herring had not testified, and no written declaration had been offered, and it was not shown that deceased had put in writing everything that showed how deceased received his injury." Where the dying declarations have been reduced to writing and signed by the declarant, it is the best evidence, and usually excludes verbal evidence of dying declarations, unless the absence of the written declaration is properly accounted for as a predicate for the introduction of the verbal statement. This bill is not clear or satisfactory. It does not exclude the idea that the written dying declaration was admitted. If the written declaration was admitted, and this statement was in accord with that, we do not see any objection to its being used by the state, or, if contradictory of the written declaration, it might be used by appellant. Mr. Wharton, in his work on Homicide, thus states the rule: "If the declaration of the deceased, at the time of his making it, be reduced to writing, the written document must be given in evidence, and no parol testimony respecting its contents can be admitted. It has been held in England that if a declaration in articulo mortis be taken down in writing, and signed by the party making it, the judge will neither receive a copy of the paper in evidence, nor will he receive parol evidence of a declaration which is not itself produced when its production is possible. But where the dying person repeats his declaration three several times in the course of the same day, the fact of its having been committed to writing in the presence of the magistrate on the second occasion will not, it seems, exclude parol evidence of the others, where it is not in the power of the prosecutor to give that which has been committed to writing in evidence." Wharton on Homicide, § 766; Greenleaf on Ev. 161; Krebs v. State, 8 Tex. App. 1. The state was not seeking to introduce the statements or contents of the written declaration. It was another statement made by him to a witness other than the justice of the peace. If, as a matter of fact, the state was seeking to introduce the contents of the written declaration, its loss not being accounted for, the objection would be well taken. But this is not the question. It was an independent statement. In regard to one of the rules above stated—that is, that the dying declaration may be impeached or contradicted by showing that deceased made statements contradictory of that introduced—see Felder v. State, 23 Tex. App. 477, 5 S. W. 145, 59 Am. Rep. 777. The bill does not exclude the idea that the written statement was introduced, or that this statement of the deceased shown by witness, here complained of, was contradictory of anything contained in the written declaration, or that it was made at the same time; and under the rule laid down by Mr. Wharton, above quoted, we are of opinion the evidence was properly admitted.

Appellant, testifying in his own behalf, stated on cross-examination that he did not indorse the religious views of deceased prior to the time of the killing. It was objected to the introduction of this that every person, under our Constitution, has a right to worship God according to the dictates of his own conscience, and whether he liked the religious views of deceased, or not, is irrelevant, and the introduction of this statement was prejudicial, and further that it did not tend to show malice. These are but grounds of objection and conclusions, as stated in the bill. Whether these religious views entered into the motive of appellant would be a question of fact. There is nothing in the bill to show the contrary. It may be stated, as a matter perhaps of common notoriety, that differences in religious views have been productive of many serious personal and national troubles. It seems the tendency of the human mind to become very much excited at times over religious and moral questions. However this may be, we believe this was admissible to go to the jury for what it was worth. How far it may have entered into the ill feeling of appellant towards deceased was a matter to be...