Walker v. State

• Decision Date: 23 October 1918
• Docket Number: (No. 5099.)
• Citation: 206 S.W. 96
• Parties: WALKER v. STATE.
• Court: Texas Court of Criminal Appeals

206 S.W. 96

WALKER v. STATE.

(No. 5099.)

Court of Criminal Appeals of Texas.

October 23, 1918.

Appeal from District Court, Bowie County; H. F. O'Neal, Judge.

John Walker was convicted of murder, and he appeals. Judgment reversed, and cause remanded.

Mahaffey, Keeney & Dalby, of Texarkana, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was convicted of murder, and given 10 years in the penitentiary.

The facts show that Kate Edwards, a woman, was living in a house belonging to appellant, or on the same place that he was living. He had control of the house which she was occupying by his consent. The theory of the state was that John Walker was intimate with the woman Kate Edwards, and the killing occurred because the deceased, Will Edwards, was found in the room with Kate Edwards at her house. Appellant came upon them in this room and trouble arose, resulting in the killing of Will Edwards by appellant. The state's theory of the case was that appellant killed him because he was in the room with the woman. It seems to be conceded that appellant came upon him in the room suddenly, not expecting him to be there, and that appellant was passing the house, possibly going to another place, and stopped for a moment. The appellant's theory of the case was that when he found the parties in the room together the deceased undertook to kill him, basing the homicide upon self-defense.

Bill of exceptions No. 1 was reserved to the action of the court permitting state's witness Pickens, after testifying that he was present and saw defendant shoot deceased, to testify:

"I told Will Edwards that I couldn't do him no good, and that I would go down to the camp and get the other boys and get a doctor for him, and I went on out of the door and jumped over the fence and went on down there. Yes, I went after help, and got R. B. Atkins and E. B. Webster, and old man Alf Edwards and Joe Edwards came back up there with us. I was gone a good while — something like an hour — over an hour."

Then he was questioned as follows by the district attorney:

"It took you something over an hour to go off and get back? A. No, sir; it didn't take that long. After I got there I got scared to go back."

To this statement appellant urged many objections. These were overruled, and the witness further testified, "Yes; I commenced thinking about going back;" and then the district attorney asked him, "You didn't go back there for some little bit on account of being afraid to go back?" Appellant again urged quite a number of objections to this testimony. The witness answered, "Yes, sir." We are of opinion this testimony was inadmissible. We think it was immaterial, irrelevant, and prejudicial. We are of opinion this testimony was inadmissible for several reasons, so plainly so that it is unnecessary to discuss them. See Dempsey v. State, 27 Tex. App. 269, 11 S. W. 372, 11 Am. St. Rep. 193; Lyles v. State, 48 Tex. Cr. R. 119, 86 S. W. 763; Campbell v. State, 30 Tex. App. 649, 18 S. W. 409; Underwood v. State, 39 Tex. Cr. R. 412, 46 S. W. 245; Bennett v. State, 39 Tex. Cr. R. 649, 48 S. W. 61; Chambers v. State, 46 Tex. Cr. R. 62, 79 S. W. 572; Pinckord v. State, 13 Tex. App. 470. This witness testified that he was an eye witness to the homicide, and heard what was said and saw what was done between the parties at the time and immediately before the shooting. The witness ought not then to have been permitted to testify the reason he did not go back to the house after going away was that he was afraid. He could testify to the facts, but not to the fact that after he left he was afraid to go back where the homicide occurred. This was evidently prejudicial. It was calculated to induce the jury to believe that Pickens thought appellant was a dangerous man, and that his (Pickens') life was in danger if he went back.

Bill of exceptions No. 2 was reserved to the action of the court admitting the purported dying declarations of the deceased. The bill is quite lengthy in showing the predicate. It was through the witness Webster that the predicate was laid. He was asked if before the deceased died he made a statement in his presence, and in the presence of Mr. Carlow and Mr. Lincoln, who was county attorney of Cass county, and also in the presence of Ben Edwards. This was answered in the affirmative. Witness further stated that deceased thought he was going to die, and he was asked if he wanted to make a statement, and witness answered this in the affirmative. Judge Carlow was present. He was justice of the peace. He reduced the statement to writing; that is, it was done under his direction by the county attorney, Mr. Lincoln. It was read over to and signed by deceased with his mark, and was witnessed by this witness, Judge Carlow, Mr. Lincoln, and Ben Edwards. The statement was then identified by the witness. The attorney representing defendant then took the statement to look over and cross-examine the witness with reference to the predicate. During this cross-examination he was asked if this statement was not made after the deceased went to a sanitarium in Texarkana. He answered in the affirmative. Then he was asked how long the deceased stayed in Texarkana. He did not know definitely, but a day or two; that he understood he went to a sanitarium known as Dale's Sanitarium; that the date on the dying declaration was a correct statement of the time it was made, and that deceased lived about two months after this statement was made; that he lived until December; in fact, it showed he died on Christmas eve, about the 24th of December. He was then asked if deceased's condition was practically the same from the time he made the statement until he died. The answer was: "After he came home we all thought, and he did, that he would get well. That was after he came home from Bowie county, where he had gotten shot." This was the predicate. Then follows the dying declaration. A great number of objections were urged to this: First, it was not shown by the state that at the time of the making of the declaration deceased was conscious of approaching death, and that he believed there was no hope for him to recover, and because it was not shown that such declaration was voluntarily made, and because it was not shown that it was not made through the persuasion of any other person, and because it was not shown by the state that such declaration was not made in answer to interrogatories propounded to deceased, calculated to lead deceased to make any particular statement, and because it was not shown by the state that the deceased was of sane mind at the time of the making of the declaration, and because it appeared from the evidence that the statement was made too remote from the date of the death of deceased, and that it appeared from the evidence that the statement was made on the 6th day of November, 1916, and that thereafter the deceased made a trip to Texarkana, which was some 35 or 40 miles from the home of deceased, and that the deceased lived and did not die until December 24, 1916. These were all overruled, and the dying declaration read to the jury. The court qualified this bill as follows:

"The above and foregoing bill of exceptions approved and ordered filed with the following qualifications: The defendant did not object to said testimony on the ground that the deceased was not conscious of approaching death, and that he believed there was no hope for him to recover; and, further, there was no objection or exception that the state had not shown by the evidence that the deceased was of sane mind at the time of making of said declaration."

In view of the predicate, we are of opinion the dying declaration was not admissible. The shooting occurred in the latter part of September. This dying declaration purports to have been made on the 6th of November. Deceased died on the 24th of December. This was practically three months after the shooting. He died six or seven weeks after the purported dying declaration, and expressed the belief that he would get well. This is shown by the witness Webster, who proves up the dying declaration. There was no evidence that deceased believed he was going to die immediately at the time he made the statement, and after making it he expressed the belief that he would get well, and witness says they all believed he would get well. That he expected to die at some time was not evidence of the fact that he expected immediate approaching death from the shot, especially in view of the other statement in evidence to the effect that he believed he would get well. It is a certainty that he would die at some time, whether from this wound or other cause, but that fact would not justify the introduction of the dying declaration under the circumstances here detailed....