CHALK. v. THE STATE

1. Murder — Continuance.

On a trial for murder, an application for continuance was properly refused where it appeared that the absent witness did not see the difficulty, and was so far away that, while he could hear the altercation, he could not understand the language, or which of the parties used the language.

Where an objection to the admission of dying declarations in evidence was, that a sufficient predicate for their introduction had not been laid, and the court in qualifying the bill of exceptions, refers to the statement of facts as to the predicate, the same will be considered in determining the sufficiency of the predicate.

Where, on a preliminary inquiry as to the sufficiency of the predicate for the admission in evidence of the dying declarations, the jury had been retired, and defendant objected to the refusal of the court to permit his witness to testify, that deceased inquired, if the doctor was coming, and expressed a hope that the doctor might do something for him. Held: In order to have made the exception to the ruling available, the bill of exceptions should have shown, that when the jury were brought back into court, the offer to introduce this testimony was renewed by defendant; and, on refusal of the court to permit it, an exception should have been reserved to such refusal.

On the examination of a witness as to the dying declarations, it is not error for the judge to inquire of the witness, as to the condition of the mind of deceased at the time the declarations were made.

On a trial for murder, where it appeared that the witness heard the shots, that a party immediately came to witness and told him where deceased was, that he at once went to him, found him lying in the road wounded and bleeding; and that, at farthest, 15 or 20 minutes had not elapsed from the time he had been wounded. Held; The statements of deceased to the witness were unquestionably admissible in evidence as part of the res gestæ.

Where probably as much as an hour had elapsed after the shooting, during which time defendant had finished loading his wagon, and driven it three-quarters of a mile. Held: His declarations and statements made to a witness were inadmissible as evidence, and were properly refused by the court.

Where a bill of exceptions shows that defendant objected to remarks of the court with regard to a portion of the testimony of a certain witness, to the effect, that it was immaterial, and had nothing to do with the case, and was consuming the time of the court. Held: That the bill should have shown what the testimony was — and not doing so, this court cannot presume it was material, or that the court's remarks concerning it were calculated to prejudice defendant.

The exclusion of evidence to the effect that, several days before the homicide, deceased and another Mexican came to defendant's house to get pay for work, and, not finding him at home, deceased appeared to be angry, and struck himself in the breast and cursed in Spanish, was not material or prejudicial to defendant.

On a trial for murder, where it appeared that the defendant was either guilty of murder or had acted in self-defense, and the difficulty originated concerning deceased cutting wood for defendant, evidence as to the terms of the contract, to cut the wood, between the defendant and the Mexican, who sublet the contract to deceased, was wholly immaterial.

On the trial for the murder of a Mexican, as pertinent and tending to show the animus of the defendant, it was competent to prove, that a week or so before the killing he had attended and participated in a couple of meetings, the object of which was to get rid of the Mexicans in the community, because they were working too cheap.

A defendant cannot be heard to complain of improper argument by the State's counsel, which is occasioned and justified by the argument of his own counsel.

It is not error to authorize the carrying of deceased's coat, which had been used in evidence, into the jury room.

On a trial for murder, where the defendant has himself testified, that he shot deceased while the latter was making a violent and dangerous assault upon him with a knife. Held: He cannot be heard to complain that the court erred in omitting the charge upon threats by deceased in connection with his right of self-defense.

Where the theory of the defendant was self-defense in resistance to an attack by deceased with a deadly weapon, arousing reasonable expectation or fear of death or serious bodily injury, a charge was proper and sufficient, which instructed the jury, "If deceased was armed at the time he was killed, and was making such attack on defendant; and if the weapon used by him, and the manner of its use, were such as were reasonably calculated to produce death or serious bodily harm, then the law presumes the deceased intended to murder or aimed to inflict serious bodily harm upon the defendant."

HENDERSON, JUDGE.

Appellant in this case was tried under an indictment charging him with murder, and was convicted of murder in the second degree, and his punishment assessed at five years' confinement in the penitentiary, and from the judgment and sentence of the lower court he prosecutes this appeal. The appellant assigns a number of errors, and we will consider them as presented in the bill of exceptions, in the order in which they are presented. Appellant claims that the court committed an error in forcing him to trial in the absence of the witness Juan Flores. It appears that the witness was subpœnaed. This was sufficient diligence, under the circumstances of the case; but, in our opinion, the absent testimony was not material. He did not witness the difficulty, and was so far from it that, while he could hear the altercation, he could not understand the language used by the parties, nor which one used such language. The contention, doubtless, is that the testimony of said witness would corroborate the appellant's evidence, but we fail to see its materiality in that respect. Appellant alleges error on the part of the court in admitting the testimony of Dug Wheeler as to the dying declarations of deceased, claiming that no sufficient predicate was laid for such admission. The bill of exceptions presented to the court does not, perhaps, show a sufficient predicate; but the court, in his qualification of said bill, refers to the evidence of this witness and the statement of facts to show the predicate, and the testimony here referred to, and made a part of the bill, shows an ample predicate for the admissibility of said dying declarations. In appellant's third bill of exceptions he claims that, in laying a predicate for the admission of said testimony, the court erred in refusing to permit the appellant to prove by the witness Dug Wheeler, upon his examination before the court for the purpose of determining the admissibility of the dying declarations of deceased, that, during the conversation in which deceased made such declarations, deceased inquired if the doctor was coming, and expressed a hope that the doctor might do something for him. Conceding that this testimony was material, as expressing a hope of recovery on the part of the deceased, which is questionable, especially in view of the testimony of this and other witnesses as to the condition and expressions of said deceased just prior to his death (see Hunnicutt v. State, 20 Tex.Crim. App., 632), yet we find, by reference to this bill of exceptions, that this proof was offered before the court, and by referring to the ensuing bill of exceptions (No. 4), we find that, while a predicate was being laid by the testimony of this witness, the jury were retired, and the bill fails to show that, when the jury were brought in, the offer to introduce this testimony was renewed before them. In our opinion in order to have rendered the exception available, this should have been done, and on refusal of the court to permit it, an exception should have then been reserved to the action of the court. See Hunnicutt v. State, supra. In the appellant's fourth bill of exceptions he complains that, during the progress of the examination of the witness Dug Wheeler, and after he had testified as to the dying declarations of deceased, the court inquired of said witness as to the condition of the mind of deceased at the time he made the declarations. Defendant insists that this was a part of the predicate, and that the court acted improperly, and to his prejudice, by interrupting the examination, and asking the question at such time. The court explains this bill in his qualification thereof, stating that he asked the question because, during the examination of said witness Wheeler, it occurred to the court that the deceased was in a sinking condition, and that it was possible that his mentality was thereby impaired. In this action of the court we see no error. In this connection, in appellant's thirteenth bill of exceptions, the appellant objects to the remark of the court made at the time the question was asked the witness Wheeler as to the mental condition of the deceased. After the answer of the witness, and on objection by counsel, the court stated that it made no difference when the testimony came into the case, so the jury got the benefit of it. We do not construe the remark as prejudicial to the rights of the defendant.

The appellant, by his sixth bill, objects to the testimony of Ellis Wheeler, who testified as to statements made by deceased to him as to the cause of his wounds. The bill of exceptions shows that this statement, made by deceased to Wheeler, to which he testified, was very shortly after the wounds were inflicted. The witness heard the shots which caused the wounds, and the evidence shows that the deceased, immediately after he was wounded, ran out from the brush into the road, and almost immediately he was found by Mrs. Overstreet, who at once went to where Ellis Wheeler was, which was not more than 150 yards distant, and told him where deceased was, and that he at once went to him, and found him lying in the road, and bleeding from his wounds, when the statement in question was made to him by the deceased. This could not have been, at the furthest, exceeding fifteen or twenty minutes after the time he was wounded, and, according to the statement of the judge in his qualification of the bill of exceptions, it was even less than this; so that, in our opinion, the testimony was unquestionably admissible as part of the res gestæ. See Warren v. State, 9 Tex.Crim. App., 619; Washington v. State, 19 Tex.Crim. App., 521. Nor, in our opinion, did the court commit any error in rejecting the testimony of Will Jeffreys, offered by the appellant to prove what the appellant told him, after the difficulty, about it. It appears from the record, as to this testimony, that, after the shooting by appellant of the deceased, he then finished loading his wagon with wood, which must have taken him some time, and that thereafter he drove his wagon, loaded with wood, about three-fourths of a mile, so that a considerable time — probably as much as an hour — elapsed between the time of firing the fatal shots by appellant and his meeting with Will Jeffreys. Besides, he is shown to have engaged in other employments, as the loading of his wagon and the driving of his team, between the two events. See Stephens v. State, 20 Tex.Crim. App., 255. In this connection the appellant objected to the remarks of the court as to the testimony of Will Jeffreys; said remarks, in substance, being that the testimony was immaterial, and had nothing to do with the case, and was consuming the time of the court, except the testimony as to the threats of the deceased against appellant, to which said witness, Jeffreys, deposed. The bill does not show the other testimony, and we cannot presume that it was material, or that the remarks of the court in connection therewith were calculated to prejudice the appellant.

In appellant's ninth bill of exceptions he complains that the court committed an error in excluding the testimony of George Evans, to the effect that, on Saturday evening before the Wednesday of the killing, deceased came to appellant's house with another Mexican, inquiring for defendant, and said he wanted appellant to pay him for six or seven cords of wood, and on being informed that appellant was not at home, appeared to be angry, and struck himself in the breast and cursed in Spanish. This testimony, in our opinion, shows no threat, and we fail to discover its materiality. In view of the fact that, on the same evening, and after this occurrence, deceased saw appellant, and had a talk with him on the subject of this wood, we fail to see how the exclusion of the occurrence about which George Evans would have testified was calculated to prejudice the appellant. Nor, under the circumstances in this case, was it material to show the terms of the contract between the appellant and the Mexican, who turned over the contract to cut the wood to the deceased. If the State's testimony was to be believed, the appellant was guilty of murder, and if the appellant's evidence was to be credited, he was authorized to do what he did in self-defense, regardless of any contract with reference to cutting wood. The proof offered by the State, showing that, some three weeks before the homicide, appellant attended a couple of meetings, and participated therein, the object of said meetings being to get rid of the Mexicans in that community, because they were working too cheap, we think, was admissible as evidence tending to show the animus of the appellant towards Mexicans, the deceased being a Mexican, and, according to the testimony offered by the State, the homicide occurring without any provocation, would serve to show on the part of appellant, malice against the deceased, he being a Mexican.

The appellant also complains that the court permitted the District Attorney to animadvert on the excluded testimony of Sheriff Sparks. It appears that, during the progress of the evidence, the State offered the written statement taken down by Sparks at the time the declarations of the deceased were made to him as to the cause of his death. The appellant objected to said written statement on the ground that no sufficient predicate had been laid for the introduction of said testimony, which was sustained by the court, and the witness withdrawn. In his argument, counsel for appellant criticised the action of the District Attorney, and criticised the witnesses, Overstreet and Wheeler, and stated that the District Attorney was driven to the use of their testimony, but that he was afraid of the testimony of Sheriff Sparks, who took down the dying declarations. The court, over the objection of the defendant, permitted the District Attorney to state, in his argument, that he was not afraid of the testimony of Sheriff Sparks, that he was not permitted to use it because of defendant's objection, and that he would then introduce the testimony, and would use it, if the defendant did not object. He then offered the testimony, and on defendant's objection it was again excluded. In our opinion, the course of the District Attorney was justified by the argument of appellant's counsel. See Sinclair v. State, post p. 130, and authorities there cited. Nor, in our opinion, did the court err in authorizing the coat which had been used in evidence to be carried to the jury room. See Jackson v. State, 28 Texas Crim. App., 370; Spencer v. State, 34 Tex. Crim. 238.

The appellant in this case also took several bills of exception to the charge of the court, and he assigns as error the failure of the court to charge threats in connection with the court's charge on self-defense. It is true that there was testimony showing that the deceased had threatened to take the life of appellant if he did not haul and pay for the wood he had cut; but we do not think it was necsssary, in connection with the charge on self-defense, that the court should have called the attention of the jury to the threats that had been introduced in evidence. From the defendant's own evidence, the attack on him by deceased was after the altercation between them had ceased, and he (appellant) had resumed his work of throwing wood in the wagon, when deceased, with a very large knife, rushed upon him, and attempted to cut him with it, cutting his clothes in several places across the front. The appellant, after the attack made on him, drew his pistol, and shot deceased. This attack, from the appellant's testimony, was of a most dangerous and deadly character, and needed no threats to give it force or effect. There could be no misconception as to the purpose of deceased in making the attack, and, if it was true, as testified by him, appellant had the right to slay the deceased, utterly regardless of any threats. The appellant also complains that the court, in its charge on self-defense, failed to give a charge directly applicable to the facts of the case, and insists that the court should have given a charge on an attack by deceased and an abandonment thereof, and a retreat for the apparent purpose of arming himself for a renewal of the attack upon appellant, and that the fatal shots were fired by appellant while deceased was in the act of retreating towards his knife, in order to arm himself with it for the purpose of renewing the attack upon appellant. The court's charge, in this regard, was as follows: "If you believe from the evidence that the defendant killed the deceased, but further believe that, at the time of so doing, the deceased had made an attack on him, which, from the manner and character of it, and the relative strength of the parties, and the defendant's knowledge of the character and disposition of the deceased, caused him to have a reasonable expectation or fear of death, or serious bodily injury, and that, acting under such reasonable expectation or fear, the defendant killed deceased, then you should acquit him; and if deceased was armed at the time he was killed, and was making such attack on defendant, and if the weapon used by him and the manner of its use were such as were reasonably calculated to produce death or serious bodily harm, then the law presumes the deceased intended to murder, or aimed to inflict serious bodily injury upon, the defendant." This charge, in our opinion, was all that was necessary under the facts and circumstances of this case. The proof on the part of the defendant showed that the attack was a continuous one, and the knocking of the knife out of the hand of deceased, and his immediate attempt to regain it, showed no suspension of hostilities, but, on the contrary, manifested no other purpose than the following up of the attack already made, and the jury could have placed no other construction on the acts of deceased, if they believed the appellant's testimony, and the charge as given by the court, fairly presented the issue to the jury. There was no occasion to give the charge asked. From the evidence introduced by the State in this case, the appellant made an unprovoked assault on the deceased, and of his malice aforethought shot and killed him; while, from the appellant's testimony, he acted in what he did clearly in self-defense. The charge of the court, we think, fully and fairly presented these issues to the jury. They found against the appellant, and we find no such error in the record as authorizes us to reverse this case. The judgment and sentence of the lower court are accordingly affirmed.

Affirmed.