Walker v. State

• Decision Date: 18 June 1919
• Docket Number: (No. 5406.)
• Citation: 214 S.W. 331
• Parties: WALKER v. STATE.
• Court: Texas Court of Criminal Appeals

Page 331

214 S.W. 331

WALKER v. STATE.

(No. 5406.)

Court of Criminal Appeals of Texas.

June 18, 1919.

Appeal from Criminal District Court, Bowie County; P. A. Turner, Judge.

John Walker was convicted of murder, and appeals. Reversed and remanded.

Mahaffey, Keeney & Dalby, of Texarkana, for appellant.

E. A. Berry, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was given a term of five years in the penitentiary for murder.

The first appeal will be found reported in 206 S. W. 96. In a general way, the statement as there reported is sufficient for this appeal.

The Fourth Called Session of the Thirty-Fifth Legislature created a criminal district court for Bowie county. The act creating this court went into effect on June 26th. On the 20th of said month, six days prior to the taking effect of this act, there was an order entered in the district court then having jurisdiction of this case, and where this conviction occurred, transferring it to the criminal district court. The case, at the time of the taking effect of the act creating the criminal district court, and at the time of the transfer of the case to that court was pending on appeal in this court, and was not disposed of finally on motion for rehearing until December 4th, the original opinion having been rendered on October 30th.

Two questions are suggested under the above statement: First, that the district court transferring the case was without authority, because the criminal district court was not in existence in such way as to authorize the transferring of cases to it for adjudication. We are inclined to think this position is well taken. There must be a court in existence to which the cause is transferred in order to authorize the transferring court to make its order of transfer; and it is also necessary that the court to which it is transferred have existence and have authority to assume jurisdiction.

The second proposition is that pending the appeal the court from which the appeal was taken is powerless to enter this character of order; that its jurisdiction would be limited to supplying lost or destroyed records. We find this to be a correct proposition under the statute and decisions construing that statute. See article 916, 2 Vernon's Ann. C. C. P., and decisions thereunder collated. See Acts 35th Leg 4th Called Sess. pp. 48, 51; Saufley v. State, 48 Tex. Cr. R. 563, 90 S. W. 640; Quarles v. State, 37 Tex. Cr. R. 362, 39 S. W. 668; Hinman v. State, 54 Tex. Cr. R. 434, 113 S. W. 280; Estes v. State, 38 Tex. Cr. R. 506, 43 S. W. 982. Under these statutes and decisions the trial court was without authority to transfer this case or make any order in it of the character made to the criminal district court of Bowie county.

Another bill of exceptions was reserved to the introduction of the dying declaration of deceased. The shooting occurred in September. On November 6th thereafter a dying declaration in writing was signed by deceased. On the 23d or 24th of the following December he died. This dying declaration on the former appeal was held inadmissible, and the reasons given. There is no material change in the testimony in regard to this matter, except in one respect. It seems on the former appeal it was shown the deceased expressed a hope of recovery after making the dying declaration. That evidence is wanting on this appeal. This matter is presented in various ways and by several bills of exception. The dying declaration itself is embodied in bill No. 6, and is as follows:

"I, Will Edwards, being of sane mind at the time of making this declaration, and conscious of approaching death, believing there is no hope of my recovery, make the following voluntary statement as my dying declaration concerning the shooting of me by John Walker.

"On or about September 26, 1916, I was at the house of Katie Miller, also known as Katie Edwards, in Bowie county, Texas. Gilbert Perkins was also there with me. I had a conversation with the woman Katie, and then she and I went into a shed room and lay down on the bed. We had been lying there about ten minutes when all at once the door was pushed open and John Walker came in. The door was fastened from the inside and he pushed it open by force. The first words spoken were by John Walker, who said: `Katie, get up from there; what are you doing down there?' Katie said: `I ain't doing nothing, Mr. Walker; I ain't doing nothing.' I had gotten up and was sitting on the side of the bed. Walker said: `What in the hell are you doing down there then?' Katie said: `Nothing.' Walker then said: `I'm a good mind to kill you.' Katie began begging him not to do it. At this time and before this, we had both seen Walker's gun, and I heard him cock it. I jumped up and stood up and was pulling my suspenders on when Walker raised his gun at me and shot me in the neck. I fell and Katie began begging him not to shoot again. Walker said to her: `Hush! God damn you; I will kill you too.' She begged him not to do it, and he told her then to get out of there. Walker and Katie then left the room together. He afterwards came back to the house but nothing was said.

"I have known John Walker about three years, and know him well. I have been with him lots, and know him by his voice as well as by sight. On the night I was shot as above stated I recognized John Walker by his voice, and also saw him. A lamp was burning in another room and made light enough in the room we were in for me to see him, and I saw him and knew him. I know it was John Walker that shot me that night, in Bowie county, Texas. At the time I was shot I was not armed; my gun was in another room.

"This is my own voluntary statement, not made through the persuasion of any person, and I am not led to make any particular statement through the question or suggestions of any person.

"Witness my hand this the 6th day of November, A. D. 1916.

                                      his
                        "[Signed] Will X Edwards
                                     mark
                  "Witnesses
                  "B. B. Webster
                  "W. A. Carlow
                      his
                  "Ben X Edwards.
                      mark
                  "Elmer L. Lincoln."
                

This bill refers to and makes a part of it the testimony of the attesting witnesses, and especially that of Webster as found on pages 11 to 16, inclusive, of the statement of facts, and that of Lincoln, found on pages 16 to 19, inclusive. This testimony shows that these witnesses went to where deceased was on the 6th of November. The witness Webster testified that the statement was made before the deceased was carried to the sanitarium, and that before going to the sanitarium it was thought deceased would get well; that he (witness) did not think so after his return. He was at the sanitarium but a short time. In reference to the predicate, he says he talked to deceased, and the deceased said he thought that the wound was going to kill him; thought he was going to die; and he wanted to make this statement. He made it in the presence of the witnesses mentioned. These were subscribing witnesses to the dying statement. Witness says he was not led to make any particular statement or answer by any questions asked him that would lead him to make any particular kind of answer. "I think some questions were asked during the time we were there, both by Mr. Carlow, the justice of the peace, and Mr. Lincoln, the county attorney; they both asked him some questions possibly, in the presence of himself, his father, who was a pretty old and ignorant negro, but no questions to get any particular line of statement out of him. At no time after he made this statement up to the time of his death he never made any statement expressing any hope of recovery. He was taken to Texarkana to have Dr. Dale see him at the sanitarium, but he said he did not think Dr. Dale could cure him." The effect of the gunshot wound which was in the neck was to paralyze deceased in the left side. Witness said he made the statement voluntarily; "that is, we were all talking about dying and death, about his giving this kind of statement to us; there was nothing else to talk about then much, and just the things propounded to him, and he answered them himself. Q. Did you ask him, or did he say that he thought he would die from this gunshot wound? A. Yes, sir; you know that is a conclusion. You know what I thought about it, because I was with him from the time he came there to the day he died, with the exception of a day or two days that he went to Texarkana—from the time he came there, every day I would see him and his condition."

Objection was urged to the statement of the witness, and especially that part of it where he uses this language:

"He was not led to make any particular answer by any questions asked him that would lead to any particular kind of answer."

We are of opinion this was but a conclusion of the witness. Instead of expressing his conclusion or belief or summing up occurrences that led to the dying statement, this witness should have stated what did occur. The questions are not stated, nor are the answers to them given. It was but the witness' conclusion, and not the facts. Further testifying on cross-examination in regard to this matter this witness said:

"I believe about the way it was done: Some question would be asked, he would answer,...