Sims v. State

• Decision Date: 03 June 1896
• Citation: 36 S.W. 256
• Parties: SIMS v. STATE.
• Court: Texas Court of Criminal Appeals

36 S.W. 256

SIMS v. STATE.

Court of Criminal Appeals of Texas.

June 3, 1896.

Appeal from district court, Victoria county; S. F. Grimes, Judge.

J. R. Sims was convicted of murder in the second degree, and appeals. Reversed.

Kearby & Muse, Harris & Knight, and A. B. & W. M. Peticolas, for appellant. A. B. Davidson, Dist. Atty., and Mann Trice, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of murder in the second degree, and his punishment assessed at five years in the penitentiary, and he prosecutes this appeal.

1. Appellant's first bill of exceptions relates to the action of the court in changing the venue. It appears that the indictment in this case was presented in Calhoun county, and that a motion was made for a change of venue by the district attorney. Appellant claims that the court erred in changing the venue when it did, because at the time no special venire had been summoned in the case, and said case could not be legally called up, the criminal docket not being on call at that time. He alleges that the indictment in this case was presented on the 13th of November, 1894; and that, on the 14th day of November, application for writ of habeas corpus was made, and the hearing of the same was continued until the 16th of November, at 9 o'clock; and that on the 17th of November, at night, after the action of the court on the habeas corpus proceedings, the court granted the motion of the state, and changed the venue, and appellant alleges that he did not have reasonable time within which to examine the indictment and the other proceedings in the case, so as to prepare and have acted on such exceptions or demurrers to the indictment as he might desire to present in the case. The grounds of the motion for a change of venue, and on which the venue was changed, as stated, are because in the county of Calhoun, where the offense of which the defendant is charged was committed, on account of existing combinations and influences in favor of the accused, a trial alike fair and impartial to the state and to the accused could not be safely and speedily had in said county, and because the facts and the evidence in connection with the killing were widely known and had been thoroughly discussed among the citizens and jurors of Calhoun county, and it would be impossible to procure a jury in said Calhoun county, with any reasonable effort, to try said case; that the relations of the deceased and of the defendant were so numerous that, on account of such relationship, it would be improbable that a jury could be procured to try the said case. As a reason for the change of venue, it is further stated that in the county of Calhoun, where the offense was committed, only one week's term of court was authorized by law. The contention of the appellant is not that the grounds do not exist for the change of venue, but because of the irregularity or informality of the proceedings; and he insists that, before a change of venue could be made in the case, it was necessary to summon a special venire. Article 613 et seq., Code Cr. Proc. 1895, regulate the method of changing the venue in criminal cases. It is contended that article 617 requires that, before a change of venue can be heard and determined, all motions to set aside the indictment, and all special pleas and exceptions which are to be determined by the judge, and which have been filed, shall be disposed of by the court, and, if overruled, a plea of "Not guilty" entered. It is contended that this article, properly construed, means that the jury should be present and ready to try the case before the plea of not guilty could be entered. In a capital case, as this was, the statute provides for the arraignment of the defendant in a case of this character, and that the arraignment takes place for the purpose of reading to the defendant the indictment against him, and hearing his plea thereto, and that no arraignment shall take place until the expiration of at least two entire days after the day on which a copy of the indictment was served on the defendant, unless the right to such copy or to such delay be waived, or unless the defendant is on bail. See Code Cr. Proc. 1895, art. 544 et seq. These articles do not seem to require that, before a defendant can be arraigned in a capital case, it is necessary to have the jury present. It does require that he shall not be arraigned until the expiration of at least two entire days after the day on which he has been served with a copy of the indictment, but in this case no claim of this character is presented. We take it that he was properly served with a copy of the indictment two entire days before his arraignment. The fact that a party charged with a capital felony cannot be arraigned until the expiration of two entire days after the service of a copy of the indictment on him would appear to be, among other things, for the purpose of giving him an opportunity to present all necessary exceptions and demurrers to said indictment; and it has been held by this court that he cannot be deprived of said two days. See Lockwood v. State, 32 Tex. Cr. 137, 22 S. W. 413; Reed v. State, 31 Tex. Cr. 35, 19 S. W. 678. It is not shown by the bill of exceptions that any motions, demurrers, or exceptions were presented to the indictment, nor was it made known to the court that it was desired to present any; and, in our opinion, the court did not err in overruling appellant's objections to the change of venue under the circumstances of this case. Where a change of venue is contemplated, it would appear to be an idle ceremony to wait until the special venire has been drawn and summoned; and, besides, this would be a procedure that would entail a useless expense and trouble. The statute authorizes a change of venue to be heard and determined before either party has announced ready for trial, but requires all motions, exceptions, special pleas, etc., to be determined by the judge,—that is, such as have been filed,—and then requires the plea of not guilty to be entered, which apprehends that the arraignment takes place; and, as this arraignment may take place before the parties have announced ready for trial, it follows that the attendance of a jury is not required under such circumstances.

2. Appellant complains that the court erred in allowing the state to read, as a part of its rebutting evidence, excerpts from the testimony of Peter Barnes, taken by deposition upon the inquest trial, and upon the examining trial in this case. In our opinion, this testimony was admissible. As we understand it, it was shown by defendant that Peter Barnes had made statements with reference to how the killing occurred, in conflict with the testimony delivered by him on the stand at the trial; and it was competent to show that he had made the same statements or statements similar in substance to those made by him at the trial shortly after the occurrence. In our opinion, it makes no difference whether these statements were made under oath in the previous examinations of the witness, or to persons on the outside. The rule in this respect is the same.

3. Appellant urges that the court erred in admitting, over his objections, the dying declarations of Louis Foster. The grounds of his objections are that it does not appear that the deceased was at the time conscious of approaching death, and that his declarations were made in response to questions calculated to elicit his answers, and that the statements of the deceased were not of any fact, but merely opinions or conclusions. Unquestionably, it must appear, before declarations of a deceased person are admissible in evidence, that he was conscious of approaching death. According to Mr. Starkie, "the principle which this exception stands upon is clear and obvious. It is presumed that a person who knows that his dissolution is fast approaching, that he stands on the verge of eternity, and that he is to be called to an immediate account for all that he has done amiss, before a Judge from whom no secrets are hid, will feel as strong a motive to declare the truth, and to abstain from deception, as any person who acts under the obligation of an oath." 1 Starkie, Ev. 32. And Shakespeare seems to have entertained the same view when he puts the sentiment into the mouth of the wounded Melun, who, finding himself disbelieved while announcing the intended treachery of King Louis, exclaims:

                "Have I not hideous death within my view
                Retaining but a quantity of life
                Which bleeds away, even as a form of wax
                Resolveth from his figure 'gainst the fire
                What in the world should make me now deceive
                Since I must lose the use of all deceit
                Why should I then be false; since it is true,
                That I must die here, and live hence by truth?"
                                 —King John, Act V., Sc. 4.
                

And all of the authorities teach that it must be shown in some way that, at the time declarations were made, the declarant no longer entertained any hope of life. This condition of the mind must always satisfactorily appear from the evidence in the case. In the case before us, the deceased was shot at 8 or 9 o'clock in the morning, and lived until 1 or 2 that evening, and was suffering greatly during that time, and at no time did he express any hope of recovery. Shortly before the declarations were made, the physician informed him that there was no chance for him to recover. His daughter, who was present, threw her arms around her father, and began crying. He remarked to her, "All is well." We gather from his condition, what was said to him by the physician, and his response to his child, the fact that, from the time he was shot until his death, there was no evidence or indication on his part of any hope of life, establishing that he was conscious of approaching death, and entertained no hope of recovery.

So far as any questions which may have been asked to elicit statements or declarations of the declarant, we think there is nothing in the...