Medina v. State

• Decision Date: 08 May 1901
• Citation: 63 S.W. 331
• Parties: MEDINA v. STATE.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Criminal Appeals

63 S.W. 331

MEDINA v. STATE.¹

Court of Criminal Appeals of Texas.

May 8, 1901.

Appeal from district court, El Paso county; A. M. Walthall, Judge.

Marcos Medina was convicted of murder in the second degree, and he appeals. Affirmed.

Robt. A. John, Asst. Atty, Gen., for the State.

HENDERSON, J.

Appellant was convicted of murder in the second degree, and his punishment assessed at 75 years' confinement in the state penitentiary; hence this appeal.

The first two bills of exception propose to call in question the action of the court in admitting as a part of the dying declaration certain statements of the deceased in regard to the location of certain wire fences and brickyards as being near the scene of the homicide. An examination of these bills show they are not sufficient to raise the question as to whether or not said testimony was admissible as a part of deceased's dying declarations, for the reason that the bills do not set out the entire dying declaration so that the connection in which said testimony occurs might be seen. Edens v. State (Tex. Cr. App.) 55 S. W. 815. But, concede the bills are sufficient, was it proper to admit the evidence complained of as a part of the declaration? We understand the rule to be that dying declarations relate only to the res gestæ of the homicide; that is, the statements must be confined to what actually transpired at the place of the killing,—i. e. who were the actors, where it occurred, the position of persons, what was said by the parties, the instrument used, and how the homicide was committed. A dying declaration is admissible to show all the facts immediately connected with the homicide to which a witness, were he present, could testify. This would exclude narratives of past transactions and opinions or mere conclusions of the declarant. See Roberts v. State, 5 Tex. App. 141; Warren v. State, 9 Tex. App. 619, 35 Am. Rep. 745; 1 Greenl. Ev. § 159; Boyle v. State (Ind.) 5 N. E. 203; People v. Abbott (Cal.) 4 Pac. 769. And see note to State v. Johnson (S. C.) 9 Cr. Law Mag. 461 (s. c. 1 S. E. 510). Now, it appears, if we look to the statement of facts, the declarant stated substantially: That he rode to where appellant and three other persons were skinning a beef. That appellant immediately assaulted him with a gun, and deceased said to him, "Don't kill me, and I will say nothing about this;" and appellant said, "No, Cabron; you are always finding us doing this kind of thing, and I will kill you here." Appellant then fired on him. His horse ran a short distance, when he fell off, and crawled in some bushes. That about that time a third one of the party came out, and fired in the bushes where he lay. That the parties then got on their horses, lifted some meat on their wagon, and pulled out. They left him there, and he crawled through the bosque, and got lost, and when daylight came he was in the same place that he started from. That there were some wire fences and brickyards there. Now, the objection is to that portion of the testimony relating to the wire fences...