Marshall v. State

• Citation: 182 S.W. 1106
• Decision Date: 10 November 1915
• Docket Number: (No. 3759.)
• Parties: MARSHALL v. STATE.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 1106

182 S.W. 1106

MARSHALL v. STATE.

(No. 3759.)

Court of Criminal Appeals of Texas.

November 10, 1915.

On Motion for Rehearing, January 12, 1916.

On Motion for Further Rehearing, February 16, 1916.

Appeal from District Court, Milam County; J. C. Scott, Judge.

E. V. Marshall was convicted of murder, and he appeals. Affirmed.

J. W. Garner, of Rockdale, and Henderson, Kidd & Gillis, of Cameron, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant was convicted of murder, and his punishment assessed at 15 years' confinement in the penitentiary.

It is made to appear by the record that the deceased, Marvin Williams, and his wife had parted, and his wife had returned to her mother's home; that deceased was living with Earl Cook. On Friday before the homicide on Monday, deceased went to the home of his mother-in-law, and there conducted himself improperly, firing off a pistol and doing other unbecoming acts. The matter was reported to the justice of the peace, and a complaint sworn out, charging deceased with carrying a pistol. The justice issued a warrant and delivered it to the constable of the precinct, Mr. J. D. Hamilton. On Monday, when Hamilton decided to go after deceased and arrest him on the warrant, he went to the place of business of appellant and requested him to go with him. Appellant got in the buggy with Hamilton and they started, appellant being unarmed. They stopped at a drug store, and there the city marshal, John Bonds, gave appellant a pistol. When the constable and appellant arrived at Earl Cook's they ascertained the deceased was at the home of Mr. Will Cook. They went to Will Cook's, and the constable arrested deceased. After the arrest, the evidence conflicts as to what occurred, but all agree that deceased fled, and the constable and appellant pursued him. Several shots were fired, as the officers say, to frighten deceased. None of them struck deceased except one, and as to the conditions under which this shot was fired the evidence is in conflict. The state relied on the statements of deceased, admitted as dying declarations, and according to this statement appellant and deceased outran the constable; that when appellant was near to and close to deceased he stopped to reload his pistol, and said to deceased, "If you don't stop, I will kill you," and he (deceased) replied, "That is the only way you will get me," when appellant shot him.

The defendant's contention is that the first shots were fired to frighten deceased and cause him to stop; that appellant overtook him, when deceased turned and began to fight appellant; that appellant struck at him with the pistol, when it fired, and the fatal wound was inflicted. The evidence shows deceased was a strong, able-bodied man, weighing about 185 pounds, while appellant would weigh not exceeding 150 pounds.

Will Cook was permitted to testify that after deceased was carried to his home Dr. Kilpatrick was called, appellant having gone with Earl Cook after him, and the doctor told deceased, "If he had any business to attend to or wanted to see any one, he had better attend to it or see them." Shortly after the doctor departed deceased said to witness, "Uncle Will, the doctor is just like I have been; I knew I was going to die and I want to tell you how it was done;" and then the witness was permitted to detail, over the objection of appellant, what deceased said about how the fatal shooting occurred. This occurred in the afternoon, and George Middleton was permitted to testify what deceased said to him about 7 o'clock on the evening he was shot, over appellant's objection. Middleton said he remarked to deceased, "Well, you will be sitting up in two or three days," and deceased said, "No, I am bleeding inside; I will never sit up;" and then Middleton was permitted to testify as to what deceased said about the difficulty. The testimony of both these witnesses was objected to on the ground that no sufficient predicate had been laid to admit the statements as dying declarations. We have carefully reviewed the authorities cited by appellant, and we cannot say the court erred in admitting this testimony, although it would have been better for the state to have affirmatively shown that deceased was sane and in his right mind. This it seems to us, from reading the record, appears, as there is no evidence that the doctor administered to him any medicine that would and could affect his mind, nor was the wound such a one as would affect him mentally. On another trial though, if the same objection is made to the testimony, it would be better for the state to show by positive and affirmative testimony that deceased was conscious of approaching death and had no hope of recovery; that the declarations were voluntarily made; that same were not made in answer to interrogatories calculated to elicit a particular statement; and that deceased was in his right mind and sane at the time he made the declarations to these two witnesses. This becomes important in this case inasmuch as deceased was carried from Rockdale to Cameron the next day and there made a written statement to the sheriff, which was excluded by the court on the testimony of Dr. Best, whose testimony was such that it led the court to think that deceased at that time had not given up all hope of recovery, but instead seemed to have a hope of recovery if given proper treatment.

We have said this much in view of another trial, and this brings us to the question which we think requires a reversal of the case. Appellant's counsel, in presenting the case to the jury, argued that but little weight should be given to the alleged dying declarations of deceased as testified to by Cook and Middleton; that when he made such statements he was angry, as men would be under such circumstances, and he (counsel) did not think from the testimony that deceased had given up all hope of recovery, and the statement was not made under the conditions and circumstances which showed that deceased was conscious of approaching death, and with the seriousness which should attend such statements. We think these comments were legitimate and proper, and one counsel was authorized to make in the light of the fact that statements made by the deceased the day after the above statements were made were excluded by the court on the ground that deceased had not at that time given up all hope of recovery. Such comments went to the weight the jury would give to such statements, and was not a criticism of the court in admitting the statement in evidence, which he did admit. The theory of the defense was based on the testimony of Hamilton and appellant, and presented a wholly different state of facts, and it was proper and legitimate for counsel to argue that this evidence was entitled to greater weight and was more reasonable and consistent with all the evidence. And in reply to this it was proper for the state's counsel to insist that the statement was made under a sense of impending death, and therefore great weight should be given to it by the jury, and more than should be given to the testimony of Hamilton and appellant, who would naturally be interested in the verdict to be returned. But state's counsel did not stop there. In the bill of exceptions presented by counsel for appellant to the court, it is alleged that the following language was used by counsel for the state in his closing address:

"The state endeavored to furnish you, gentlemen of the jury, with the dying declaration of the deceased, and if his dying statement made in yonder jail to Ben Nabours, the deputy sheriff, at a time when deceased was in a dying condition and his life blood was flowing in chambers where it was not accustomed to flow, after Dr. Best, his physician, had told him that he was standing in the portals of death and was soon to face his Maker and render an account in the courts of heaven of the acts of his life — a solemn statement made in writing by the hands of the deputy sheriff, who had him in custody and at a time when the animosities and prejudices of life had all vanished from his mind and his eyes were lifted upwards to that scene where truth alone is spoken, it is because you [referring to and pointing to defendant's attorney] would not let it come. We offered to prove this solemn dying declaration of this man made under these circumstances, and it would be before you now, but for the objections of the defendant's attorneys."

The statement made by deceased to Mr. Nabours had been excluded by the court, on the ground that it was not shown to be a dying declaration. The court refused to approve the above bill, and appellant undertook to prove it up as a bystander's bill, and it is sworn to by Messrs. J. W. Garner, W. G. Gillis, and T. S. Henderson. All these gentlement were attorneys for appellant on the trial of the case, and we hardly think they are "bystanders" within the meaning of the statute. Of course, we appreciate that when bills are refused after court has adjourned, it is difficult to prove them up by others than the attorneys at so late a time, but if the stenographer's act has brought about a new condition of affairs, rendering a change in the law governing these matters necessary, this should be presented to the Legislature. The courts cannot amend the statute. However, when the court refused the above bill, the court prepared one of his own, and filed it, and in it is shown:

"After the testimony had been closed, the jury charged, and the case was being argued to the jury, defendant's counsel in course of his argument attacked the sufficiency and weight of the testimony of the witnesses Cook and Middleton as to the deceased's alleged dying declaration, and argued to the jury that these witnesses were more or less interested, that Cook was a kinsman and was prejudiced against the defendant, and that the testimony of these two witnesses was fragmentary in character, and it necessarily did...