Wilson v. State

• Decision Date: 06 December 1905
• Citation: 90 S.W. 312
• Parties: WILSON v. STATE.
• Court: Texas Court of Criminal Appeals

90 S.W. 312

WILSON v. STATE.

Court of Criminal Appeals of Texas.

December 6, 1905.

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

W. L. Wilson was convicted of murder in the second degree, and appeals. Reversed.

J. R. Warren, F. J. McCord, Hooper & Zachry, and Barnwell & Eberhart, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

BROOKS, J.

Appellant was convicted of murder in the second degree, and his punishment fixed at seven years' confinement in the penitentiary. This is a companion case to that of H. C. Wilson v. State (decided at the Austin term, 1904) 81 S. W. 34.

Appellant filed a motion to quash the indictment, because the charging part reads "that H. C. Wilson and W. L. Wilson did then and there unlawfully with his malice aforethought kill." It is a well-known rule that bad spelling and ungrammatical construction will not vitiate an indictment. It clearly appears that both appellant and H. C. Wilson are charged with killing deceased with malice aforethought.

He also complains the court erred in permitting Nev Sorrells to testify, over the objection of appellant, that appellant and his brother (H. C. Wilson) were standing in front of W. C. Barnwell's drug store in Gilmer, Upshur county, where the difficulty occurred. In this there was no error. The testimony of this witness shows that appellant and his brother were talking together just before the killing occurred. It may be that this was an innocent conversation, as appellant insists, but this would not preclude a converse inference by the jury; and hence it was a fact legitimately provable by the state. What has been said above also applies to the bill reserved to the testimony of C. W. Douphrate to the same effect.

The eighth error assigned complains that the court permitted Jim Starr, over appellant's objection, to testify that during the progress of the fight he spoke to A. W. Harrell (deceased) in a loud voice, and said: "Bud, God damn it, run out of it." The bill presenting this matter shows that both appellant and his brother heard the statement. In this there was no error.

The ninth error complains that while J. H. Starr, a witness for the state, was being cross-examined by appellant, he was asked to state whether this defendant went to deceased, after he fell, and in response to said question witness answered: "If he did, I did not see him." Thereupon appellant's counsel asked if he could not answer the question positively. Witness reiterated: "I think it is positive enough. It looks to me like it is." The court thereupon remarked: "I think he has answered it as fully as he can. Things will happen that a witness ought to see, still sometimes they may not see it." Appellant excepted to the remark of the court. Thereupon the court stated: "He answered it in my opinion as honestly as a witness can answer." Appellant objected to said remark on the ground that it prejudiced the rights of appellant. The court states in his explanation to this bill: "The witness had stated minutely all the surroundings. He had stated 15 or 20 times, if defendant cut deceased after he fell, and while he was on the ground, he did not see it. He had stated as often his opportunities to see it. Defendant was trying to force him to swear to a conclusion that it was impossible for defendant to have cut deceased while he was down without the witness seeing it. Witness had testified fairly, had shown no disposition to evade, and was willing to tell all he saw and heard. After harassing the witness for 10 minutes on this point, I thought it was time to stop it, and proceed with the trial. Witness and the court had shown great patience in the cross-examination on this point before interfering to stop it, and proceed with the trial." The rules of procedure in this state require that trial courts should studiously avoid any comment upon the weight of the evidence, while ruling on the admission of testimony, or in charge to the court. In view of the explanation of the court, we cannot see there was such error as authorizes a reversal. After the witness answered the question, it is legitimate for the trial court to say so, and, as indicated by the bill, stop any harassment of the witness. It is not proper for the court to say anything indicative of the fact that the court believed the witness is honest or dishonest. It is proper for trial court to protect a witness against any supposed imposition or badgering; but it is not proper to comment on the truth or falsity of the witness' testimony, or make a comment that can be legitimately or naturally construed as such.

The thirteenth error assigned insists the court erred in permitting Dr. T. S. Ragland to testify to what purported to be a dying declaration, alleged to have been made by A. W. Harrell, deceased, a short while before his death, because said statement was not shown to have been a part of the res gestæ, and did not come within the rule prescribed by law for the introduction of dying declarations. The bill shows that deceased had gone something like 200 feet after the difficulty to Ferrell's drug store, and within 20 minutes after the difficulty had ended made the statement complained of. State's counsel asked the witness the following question: "Doctor, in your opinion, was deceased conscious? A. Yes, sir. Q. What did he say? A. Now, all this was said in monosyllables; that is, two or three words at a time. The first thing he said was: `What a pity! What a pity! They killed me for nothing. What will become of my poor wife and children?' He then turned to me, or Dr. Daniels, I don't remember which, and said: `Doctor, can't you do nothing for me?' We just told him to be quiet." To support appellant's contention he refers us to Bateson v. State (Tex. Cr. App.) 80 S. W. 88, where it was held the statement of deceased, "that they murdered me without cause," was improperly admitted, because a witness can only state matter involved in the dying declaration to which deceased could have testified as a witness if alive, and could not give in evidence matters of opinion; and also cited Medina v. State (Tex. Cr. App.) 63 S. W. 331. In Roberts v. State, 5 Tex. App. 141, we held, where witness testified, "Alexander stated that Steve Roberts killed him for nothing," that said declaration was not an opinion. In Sims v. State, 36 Tex. Cr. R. 154, 36 S. W. 256, we held the following declaration admissible: "Sims ought not to have shot me, and I did not think Sims was going to shoot." See, also, Connell v. State, 81 S. W. 746, 10 Tex. Ct. Rep. 890; White's Ann. Code Cr. Proc. § 1008. We think the declaration here, under the last-cited authorities, was admissible, and not an opinion of the witness. However, that portion of the declaration which says: "What will become of my poor wife and children?"—was not admissible. Craven v. State (just decided) 90 S. W. 311. We think appellant is correct in his insistence that the testimony was not admissible as dying declarations, but was admissible as res gestæ, since the same occurred within 15 or 20 minutes after the fatal stab was inflicted. Witness did not testify that deceased knew he was dying, although he did die immediately.

The eighteenth error complains that while R. C. Barnwell, a witness for defendant, was testifying, appellant's counsel proposed to exhibit to said witness a stick of native pine wood, about 2½ inches wide at one end, and about 1½ inches wide at the other end, and ¾ of an inch thick, and asked the witness how said stick compared with the one which he (witness) had testified that deceased had used in the difficulty at the time he was killed. Appellant offered further testimony to show that original stick had been turned over to the district clerk of Upshur county for safe-keeping, but had been lost. Appellant then offered to prove by witness that the stick proposed to be exhibited to him was about the same size, width, and material as said original stick. Whereupon the court asked attorney for appellant if the stick which he proposed to exhibit was the one used by deceased at the time of and in the difficulty; and,...