McKinney v. State, (No. 4133.)

CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
Citation187 S.W. 960
Docket Number(No. 4133.)
Decision Date21 June 1916

Appeal from District Court, Bexar County; W. S. Anderson, Judge.

George McKinney was convicted, and appeals. Affirmed.

C. C. Todd, of San Antonio, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.


Appellant was convicted of the murder of a negro woman, Alice Parrish, and the death penalty assessed.

His defense was accidental shooting. This question was specifically submitted to the jury for a finding in the very language of appellant in his special charge which was given. The jury found against him on it. They could not have done otherwise under the testimony. No complaint is made of the charge of the court. He has several bills of exceptions. We will discuss each.

He complains that the court refused to permit him, on the objection of the state, to ask this question of each venireman:

"If, after hearing the evidence in this case, you have a reasonable doubt of the intent of the defendant to kill deceased, would you give the defendant the benefit of that doubt?"

The court made this explanation in allowing the bill:

"The objection stated was directed to the question as asked in the form asked, and the defendant was never denied the right to ask each and every venireman, and in fact did ask each venireman, the question:

"`If, after hearing the evidence in this case, you have a reasonable doubt of the guilt of the accused, will you give him the benefit of that doubt and acquit him?'

"It was the judgment and opinion of the court that the question as asked fully protected the rights of the defendant, while the question desired to be asked was directed to one single element of the offense of murder, and, if it had been allowed, other questions covering each and every other element of the case, both for the state and defense, must likewise have been allowed. If this had been done, the trial would have been unreasonably extended; and, further, the defendant never exhausted all his peremptory challenges."

The court's action in refusing to permit appellant to ask said question was correct. Ellis v. State, 69 Tex. Cr. R. 468, 154 S. W. 1010; Merkel v. State, 171 S. W. 740, and authorities therein cited.

In his next bill he shows that the district attorney asked its witness Edna Bowman if she heard deceased make any statement on the night she was shot. She answered she did, and stated that no one was present at the time but herself. That she (the witness) was the only one in the room with the deceased at the time. He then asked:

"What, if anything, did she say in regard to who it was [referring to who shot her]?" Quoting from the bill: "To which question the defendant then and there objected, which objection was by the court overruled, and the defendant excepted because it does not appear that the precedent required by statute that the deceased was conscious of approaching death, had no hope of recovery, and was fully conscious of what she was saying and doing at the time said statement was made; said testimony being material, because the deceased answered said question that `George shot me because I wouldn't go with him. He ought to be hung, oughtn't he?'"

The bill then states that the defendant further excepts, because the answer called for a conclusion of the deceased, and did not state the conversation that occurred between the defendant and the deceased which led to the conclusion testified to, that George shot her because she would not go with him. The court before approving this bill explains and qualifies it as follows:

"Before the witness Edna Bowman was asked the question and gave the answers complained of, it had been established by other witnesses that at the time or within a few minutes of the speaking of the words recited by the witness Edna Bowman, that the deceased was sane, fully conscious, and knew that she was going to die and had no hope of recovery, as will be seen from the testimony of Fannie Thompson, Dr. H. H. Ogilvie, and Curtis Parrish; also all three of those witnesses testified to dying declarations of substantially the same words as testified to by the witness Edna Bowman, without objection on the part of the defendant. The testimony of the witnesses Fannie Thompson and Dr. H. H. Ogilvie shows the proper predicate to the introduction of dying declarations, and no change in the condition of the deceased from the time at which they saw her until she spoke to Edna Bowman was shown or suggested.

"The objection was to the question and not to the answer or any portion thereof, and no objection was made, and no motion was made to strike out the answer nor the words: `He ought to be hung, oughtn't he?'"

The statute (C. C. P. art. 808) expressly prescribes what the proof shall show before a dying declaration of a deceased is admissible. This statute has been in force for many years and has frequently been discussed, construed, and applied in many cases. The rules applying thereto are well established by the decisions both of this court and our Supreme Court when it had criminal jurisdiction. And while all the requisites prescribed by the statute must be shown in order that the dying declaration be admissible, it is held that it is not necessary that all these requisites shall be established by direct and positive testimony of the deceased at the time. It is enough if it satisfactorily appear that the proper proof was made whether it be directly proved by the express language of the declarant or others, or be inferred from his evident danger, or the opinions of the medical or other attendants stated to him, or from his conduct or other circumstances of the case, all of which are resorted to in order to ascertain the state of the declarant's mind and the facts to make the dying declaration admissible. Hunnicutt v. State, 18 Tex. App. 516, 51 Am. Rep. 330; Cook v. State, 22 Tex. App. 526, 3 S. W. 749; Miller v. State, 27 Tex. App. 81, 10 S. W. 445; King v. State, 34 Tex. Cr. R. 237, 29 S. W. 1086; Connell v. State, 46 Tex. Cr. R. 261, 81 S. W. 746; Thomas v. State, 49 Tex. Cr. R. 642, 95 S. W. 1069; Sims v. State, 36 Tex. Cr. R. 165, 36 S. W. 256; Douglas v. State, 58 Tex. Cr. R. 122, 124 S. W. 937, 137 Am. St. Rep. 930; Johnson v. State, 67 Tex. Cr. R. 441, 149 S. W. 165; Christian v. State, 71 Tex. Cr. R. 566, 161 S. W. 101; Sorrell v. State, 74 Tex. Cr. R. 505, 169 S. W. 299; Marshall v. State, 182 S. W. 1106.

It is also established that if the dying declarations were made under a consciousness of impending death, without hope of recovery, the length of time deceased lived after making them is immaterial. Fulcher v. State, 28 Tex. App. 472, 13 S. W. 750; Crockett v. State, 45 Tex. Cr. R. 280, 77 S. W. 4; Hunter v. State, 54 Tex. Cr. R. 229, 114 S. W. 124, 30 Am. St. Rep. 887; Brookins v. State, 71 Tex. Cr. R. 101, 158 S. W. 522; Francis v. State, 170 S. W. 779. On these propositions see 2 Branch's An. P. C. p. 1035; 2 Vernon's Cr. Stat. p. 746.

Another principle of law is applicable, and that is:

"The erroneous admission of testimony is not cause for reversal if the same fact is proven by other testimony not objected to." Wagner v. State, 53 Tex. Cr. R. 307, 109 S. W. 169, and cases cited therein. Bailey v. State, 69 Tex. Cr. R. 484, 155 S. W. 536; Christie v. State, 69 Tex. Cr. R. 602, 155 S. W. 541; Tinker v. State, 179 S. W. 573; and many other cases.

And there is still another well-established principle applicable, and that is: Where an objection is made to the whole of certain testimony, a part of which is admissible and a part of which is inadmissible, such objection and the admission of such testimony presents no reversible error. In order to present error, specific objections must be made to that part which is inadmissible and not to the whole, a part of which is admissible. Ortiz v. State, 68 Tex. Cr. R. 524, 151 S. W. 1056; Payton v. State, 35 Tex. Cr. R. 510, 34 S. W. 615; Gaines v. State, 37 S. W. 333; Tubb v. State, 55 Tex. Cr. R. 623, 117 S. W. 858; Cabral v. State, 57 Tex. Cr. R. 304, 122 S. W. 872; Hughes v. State, 68 Tex. Cr. R. 584, 152 S. W. 914; Pinkerton v. State, 71 Tex. Cr. R. 203, 106 S. W. 87; Boyd v. State, 72 Tex. Cr. R. 521, 163 S. W. 69; Lopez v. State, 73 Tex. Cr. R. 624, 166 S. W. 155; Francis v. State, 170 S. W. 782; Zweig v. State, 74 Tex. Cr. R. 306, 171 S. W. 751; Ghent v. State, 176 S. W. 568; Aven v. State, 177 S. W. 82. If appellant had objected at the time to that part of the deceased's statement, "He ought to be hung, oughtn't he?" or if he had later made a motion to exclude it, and the court had overruled such objections or such motion, then reversible error might have been presented. But, as shown, he made no objection to that part of the answer only, and made no motion to exclude it at all; so that, under no contingency, does his bill present any reversible error.

By his bill No. 3 it is shown that he was cross-examining Hugh Lindsey, a state's witness, and asked him:

"Q. You have known George (McKinney) three years? A. Yes, sir; I have heard tell of him before. Q. Are you friendly with George? A. Yes, sir; I am acquainted with him. Q. Did you know at the time that the Parrishes were —"

At this point the district attorney interrupted the question, and objected that the witness could have heard it from hearsay only, and it would throw no light on the transaction, would have no bearing on the question — it would not serve to show any motive, his knowledge or lack of knowledge. The court sustained the objection. The bill shows that appellant then excepted, in that he was not permitted to finish his question, which he states would have been:

"Did you know at the time that the Parrishes were unfriendly towards the defendant, and objected to Alice Parrish going with the defendant?"

He claims in his bill that all the Parrishes had testified against him, and it was important for him to show their animosity...

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