Mayfield v. State, 12983.

• Decision Date: 05 March 1930
• Docket Number: No. 12983.,12983.
• Parties: MAYFIELD v. STATE.
• Court: Texas Court of Criminal Appeals

25 S.W.2d 833

MAYFIELD v. STATE.

No. 12983.

Court of Criminal Appeals of Texas.

March 5, 1930.

Appeal from District Court, Coleman County; E. J. Miller, Judge.

Bert Mayfield was convicted of murder, and he appeals.

Reversed and remanded.

Baker & Baker, of Coleman, F. P. Bowman, of Goldthwaite, and A. R. Eidson, of Hamilton, for appellant.

A. A. Dawson, State's Atty., of Austin, for the State.

LATTIMORE, J.

Conviction for murder; punishment, five years in the penitentiary.

There are two counts in the indictment in this case. Count No. 1 charges that appellant killed Ruby Osborn in a manner and by the use of means to the grand jurors unknown; count No. 2 charges that he committed an assault upon Ruby Osborn, and thereby put her in a position of peril and in such fear of her life and bodily safety as that she, to escape from such peril, and being under the influence of such fear so produced by such assault, jumped from a rapidly moving automobile and was thrown violently against the ground, sustaining injuries which caused her death. In his charge to the jury, the learned trial judge submitted to them only the second count, charging that, if the jury believed that appellant with malice aforethought voluntarily committed an assault, etc., putting Ruby Osborn in such fear of her life and bodily safety that, while under the influence of such fear, she fell or jumped from a rapidly moving automobile causing her death, etc., they should find him guilty of murder.

It is not questioned but that Ruby Osborn sustained injuries by either falling or jumping from a moving automobile driven by appellant, which injuries caused her death. It is in testimony that, from the time she received such injuries until the time of her death, she was continuously unconscious; the attending physician testifying that at no time during said period was she rational or conscious. There is a bill of exceptions complaining of the admission in evidence of three statements made by deceased during the time she was so unconscious. Such statements should not have been received in evidence. We are not favored with a brief by the state, and therefore are in ignorance as to the theory upon which said statements were admitted. Manifestly they were not admissible as dying declarations, nor as res gestæ. We know of no theory or rule of law under or upon which such testimony could be admitted. Mr. Underhill, in section 182 of the third edition of his work on Criminal Evidence, states that, where a declaration is offered, it must appear that the declarant was mentally conscious. We find in Paschal v. State, 76 Tex. Cr. R. 464, 174 S. W. 1057, 1062, some discussion of the admission of statements by a witness at a time when she was unconscious. We said in the opinion: "It would have been proper for the court to have instructed the jury that, unless they found from...