White v. State

Decision Date17 February 1892
Citation18 S.W. 462
PartiesWHITE v. STATE.
CourtTexas Court of Appeals

Appeal from district court, Walker county; N. G. KITTRELL, Judge.

Alfred White was convicted of murder, and appeals. Affirmed.

McKinney & Hill, for appellant. Richard H. Harrison, Asst. Atty. Gen., for the State.

WHITE, P. J.

Appellant was convicted of murder in the first degree for the killing of Rufus Bashful, the penalty being assessed at death.

Defendant's first bill of exceptions complains of the ruling of the court in compelling him to exercise a peremptory challenge on the juror J. H. Young. The judge's explanation of said bill shows that, when the impaneling of the jury was complete, the defendant had not exhausted his peremptory challenges. This being the case, appellant has not been injured, and has no cause of complaint. Willson, Crim. St. § 2293.

Defendant's second bill of exceptions was reserved to the action of the court in admitting the witnesses Strange and McKiblin to testify to the dying declarations of the deceased. This second witness testified that as soon as the gun fired he ran immediately to the place, and found the deceased suffering great pain and agony. McKiblin was a deputy-sheriff. He said he was in a saloon. When he heard the gun fired he stepped to the door, and located the sound down at the house that Rufus Bashful had moved into that day. Dr. Watson was with him, and he asked the doctor to go with him; that some one was hurt down there. They both ran down to the house, and found deceased in a chair, and they put him upon the bed, and examined his wounds, finding 11 bullet holes in his left side and arm. The doctor told him that he was bound to die, to which deceased replied, "Oh, yes, doctor, they have killed me." Just then the deceased asked McKiblin to turn him over and do something to ease him. As the witness turned him over, deceased said, "They have killed me; catch 'em." "I asked, `Catch who? Who shot you, Rufe?' He said, `Mr. Mason;'" and he seemed not to finish the sentence, when witness interrupted, and said he was mistaken; that "Mr. Mason was with the doctor and I when the gun fired, and I know he did not do it." He then said there were two or three of them; that it was Alfred White and Bob Cottrell; and Mr. Mason was into it, and knew all about it. "I asked Rufe, `Did you see them?' He said he did, and thought they were standing on the inside of the fence. He said he stepped or fell back into the house as soon as they shot." This witness was at the house off and on until 2 o'clock that night, and he had two or three conversations with the deceased. He says: "Every time I talked to him he contended it was the parties named — Alfred White and Bob Cottrell — who shot him, and that Mason knew all about it. * * * It was in response to question asked him, `Who shot you?' that Rufe said who the parties were who shot him." Defendant objected and excepted to this evidence as dying declarations, because it appeared that the declarations were not voluntarily made; that they were made through the persuasion of other persons, and were made in answer to interrogatories calculated to cause the deceased to make such statements; and because said declarations were inconsistent and untrue. We are of opinion that the objections are not well taken. We think the predicate was sufficiently laid under the statute to admit the dying declarations. Code Crim. Proc. art. 748; Willson, Crim. St. § 1045. The question, "Who shot?" was certainly not a question that was calculated to draw his attention to any particular party, and this seems to be the only interrogatory that was propounded to the deceased. The mere fact that certain of the dying declarations were made in response to questions asked deceased does not take from them their voluntary and spontaneous character. Pierson v. State, 18 Tex. App. 524. As to the objection that the declarations were inconsistent and untrue in so far as they embraced Mr. Mason as one of the parties who killed him, this fact would not of itself render the declarations incompetent and inadmissible, but would go rather to the credibility of the statement or declarations. The learned trial judge in his explanation of this bill of exceptions states that the construction that Bashful said Mason shot him is not a proper construction to be placed upon the language used by the deceased, because when he repeated his declarations afterwards on one or more occasions he did not state that Mason had shot him, but that Alf White and Bob Cottrell shot him, and Mason was into it, and knew all about it. This statement was repeated several times. We are of opinion that the objection to the evidence as dying declarations is not maintainable, and we are further of opinion that the first statement made by the deceased after the party reached him was admissible as res gestæ, as well as dying declarations. This was made in a few minutes, at the furthest, after the deceased was shot. See McInturf v. State, 20 Tex. App. 335, and authorities there cited; Willson, Crim. St. § 1046; Testard v. State, 26 Tex. App. 260, 9 S. W. Rep. 888; Ex parte Albitz, ...

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33 cases
  • White v. State
    • United States
    • Florida Supreme Court
    • May 21, 1910
  • State v. Harper
    • United States
    • West Virginia Supreme Court
    • December 18, 1987
    ...See, e.g., People v. Repke, 103 Mich. 459, 61 N.W. 861 (1895); State v. Wiseman, 178 N.C. 784, 101 S.E. 629 (1919); White v. State, 30 Tex.App. 652, 18 S.W. 462 (1892). In those cases, the courts have held that such an instruction was unwarranted under the particular circumstances of the in......
  • Baylis v. State
    • United States
    • Mississippi Supreme Court
    • October 10, 1938
    ... ... dying declaration of the same person made on a subsequent ... day, stating that the defendant "did not [182 Miss. 801] ... do it." Moore v. State, 12 Ala. 764, 46 Am ... Dec. 276. So dying declarations have been shown to be ... positively untrue. White v. State, 30 Tex. Ct. App ... 652, 18 S.W. 462.' Men sometimes lie, even when facing ... death, as has frequently been known of convicts about to be ... executed; and the motive of self-exoneration ... [183 So. 529] ... which induced them to lay the crime on some one else might ... move a ... ...
  • Bohannon v. State
    • United States
    • Texas Court of Criminal Appeals
    • June 28, 1918
    ...should leave the issue to be decided by the jury under proper instructions." To exactly the same effect are the cases of White v. State, 30 Tex. App. 652, 18 S. W. 462; Elizando v. State, 31 Tex. Cr. R. 237, 20 S. W. 560; Freeman v. State, 11 Tex. App. 92, 40 Am. Rep. 787; Rios v. State, 48......
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