Metz v. State

• Decision Date: 29 June 1934
• Docket Number: No. 16767.,16767.
• Citation: 74 S.W.2d 1025
• Parties: METZ v. STATE.
• Court: Texas Court of Criminal Appeals

74 S.W.2d 1025

METZ v. STATE.

No. 16767.

Court of Criminal Appeals of Texas.

June 29, 1934.

Rehearing Denied October 17, 1934.

Commissioners' Decision.

Appeal from District Court, Anderson County; Ben F. Dent, Judge.

Jim Metz was convicted of the offense of murder without malice, and he appeals.

Affirmed.

E. A. Landman, of Athens, and McKee, Landman & Green, of Dallas, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

KRUEGER, Judge.

The appellant was tried and convicted of the offense of murder without malice, and his punishment assessed at confinement in the state penitentiary for a term of three years.

The record discloses that on Saturday evening, after sundown, the appellant appeared at the home of F. P. Howell; that he went into the kitchen with F. P. Howell, and Mrs. Howell was preparing the evening meal; that appellant and Howell started to go to town in the appellant's car when some trouble occurred between them, resulting in the fatal stabbing or cutting of F. P. Howell by the appellant. The appellant's contention was that while he was at Howell's home Howell cursed and abused him and struck at him (appellant) with a knife, cutting his shirt; that he (appellant) then cut Howell in self-defense. The state's contention was that the appellant came to the home of Howell to get him to go to town with him and get some whisky which the appellant wanted to take to Howell's home and leave there, but Howell objected to this.

By bills of exception Nos. 1 and 2 the appellant complains of the action of the trial court in permitting the state to prove by C. C. Slaughter the following facts, to wit: "I was running a filling station in Frankston. My filling station was located on the southeast corner of the square, next to the depot. Dick (F. P. Howell) came across the street from the depot in a fast walk. I do not know how long it had been since the injury, I suppose it had just happened. He was bloody from his waist down. He asked me to carry him to the doctor and I asked him `who done that Dick?' He says, `Jim Metz.'"

The appellant's objection to this testimony was that it was not res gestæ nor a dying declaration. It appears to us that whether it came within the rule of a res gestæ statement or dying declaration does not make a particle of difference, in view of the fact that the appellant, while testifying in his own behalf, said: "I stabbed him with a knife, yes, sir, that was on the 10th day of June. I stabbed him somewhere around 8:30 or 9 o'clock. No, sir, he did not talk to anybody between the time I stabbed him and the time he went to Charlie Slaughter's filling station. Yes, sir, Charlie Slaughter was the first man he talked to."

It is apparent from the appellant's testimony that he testified to the same facts as Charlie Slaughter did and to which he objected. Hence the same facts were related to the jury by appellant without objection. Therefore it could not have injured him; besides, it is shown by the appellant that F. P. Howell went straight from the place where he received the fatal injury to Charlie Slaughter's filling station, and that Charlie Slaughter was the first man he spoke to after receiving the injury. It is further shown that it is approximately 50 yards from the depot to Slaughter's filling station, and therefore what he told Slaughter occurred within a few minutes after he had received the injury near the depot, which we believe brings it within the rule of res gestæ. See Outlaw v. State (Tex. Cr. App.) 69 S.W.(2d) 121, and authorities there cited.

By bills of exception 3 and 4, the appellant complains of the action of the trial court in permitting the state to prove by L. P. Howell the following facts, to wit: "I asked him, I said, `Son, who cut you,' and he said, `Jim Metz.' I asked him, `What on earth did you stand up there for and let him cut you that way?' He said, `Papa, I did not know that he was mad.' I asked him, `What did he do it for?' He said it was because `I would not let him carry one-half gallon of whiskey out to my house.'"

The appellant's objection to this testimony was that it did not come within the rule of a res gestæ statement nor within the rule of a dying declaration. If this was all of the testimony, there might be some reason for appellant's contention, but Amos Howell testified: "I am a brother of Dick Howell. Yes, sir, on Sunday after my brother was cut Saturday night, I had a conversation with him. I was sitting on the bed fanning him and he turned over to me and says: `I am going to die; Jim Metz killed me because I would not let him bring a one-half gallon of liquor out to my house.'"

It will be observed that the same matters to which L. P. Howell testified were related to the jury by Amos Howell without any objection, and therefore the testimony of L. P. Howell, although not coming strictly within the rule of a dying declaration, could not have injured the appellant. We think the testimony of Amos Howell is clearly within the rule of a dying declaration.

What we have said with reference to bills of...