The reversal of this case on the ground stated in the opinion, in my judgment, violates all of the principles heretofore established by this court on the subject, and is contrary to practically all cases heretofore decided on that point Mooney v. State, 76 Tex.Crim. Rep., 176 S.W. Rep., 52, and cases therein cited; Martoni v. State, 74 Tex.Crim. Rep., 167 S.W. Rep., 349, and cases therein cited.
Both the bill and statement of facts with absolute certainty show (I quote from the bill, which is the same as the statement of facts):
". . . the State proved by the witness Ben Nabours, as follows:
"`I was the deputy sheriff in charge of the jail when the deceased, Marvin Williams, was brought over from Rockdale. When he was brought to the jail, I sent for Dr. E.E. Best, the county physician. When he came he examined deceased and said to him, "You are a mighty sick man, and the chances are you will never be any better." I then asked him if there was any word he wanted to send to anybody. He said he wanted to let his uncle know about it. He then told me that he wanted me to write down his statement about how he was shot. I told him I would and I wrote it down in a little pocket memorandum book and he signed it. I have the book here (producing a small memorandum book from his pocket).'
"Here the defendant's attorney objected to the testimony of the witness and to the introduction of any statement because no sufficient predicate had been laid for its introduction as a dying declaration; and the court remarked, `Is Dr. Best in the courtroom?' The district attorney said, `Yes, sir.' The court then said, `I would like to hear him before I rule.' Thereupon Dr. E.E. Best testified:
"`I was called to see the young man Marvin Williams at the county jail. I found him greatly prostrated and in a dying condition. He was not able to talk much. I asked him how it occurred and told him *Page 458 his condition — that he was a very sick man. He said, "I know it. I may not get better." I said, "You may not get well, and if you do not get well or get better, what do you wish me to do?" He replied, "Notify my Uncle in Rockdale." He remarked from time to time, "You have got to do something for me." I told him, "We may take you to a sanitarium." He said, "Take me anywhere." His attitude seemed to be that he wanted something done for himself immediately. He was in intense pain and wanted relief. He said, "I know I am bad hurt, but I want you to do something for me." At another time he said, "If you don't take me to the sanitarium, I am going to die or I won't get over this." The impression made on me by his remarks was that he was in distress and wanted me to do something to give him relief. He expressed no belief that he was going to get better or that he was going to die. But his remarks impressed me that he was in distress and wanted something done and felt that something must be done right away and probably felt that he wanted me to relieve him from physical suffering because he was in distress.'
"Here the jury was retired by direction of the court and the witness Dr. Best was further examined in the absence of the jury, and after the court had further examined him, the court sustained defendant's objection to the testimony of the witnesses Nabours and Best and excluded the same from the jury and excluded the statement referred to in the testimony of the witness Ben Nabours as a dying declaration."
When Dr. Best testified on the point, appellant again, in the presence and hearing of the jury, objected, because the predicate was not sufficient to offer the said written statement as a dying declaration. It was at that point and after the testimony of both of these witnesses and the objections had been made in the presence and hearing of the jury that the court retired the jury. He then heard Dr. Best further testify on the point, but neither the bill nor the statement of facts gives what further testimony Dr. Best gave before the court out of the hearing of the jury. The court, after hearing this further testimony by Dr. Best, then sustained appellant's objections and excluded said testimony.
There can be no doubt but that the prosecuting attorney could properly argue as he did, with possibly the sole exception of this statement: "Then the reason it is not here is because you (pointing to defendant's attorneys) have objected to it"; simply that and nothing more. Appellant's attorneys at the time objected to that argument of the prosecuting attorney, and the court promptly sustained their objection. They did not, on the trial, attach enough importance to the matter to even ask a written charge from the court to the jury to disregard said argument. As stated, it all occurred in the presence and the hearing of the jury, and they had absolute knowledge at the time said prosecuting attorney made said argument that appellant's attorneys had objected to said proposed testimony and that it was excluded by the court on their objection.
Under the circumstances I think it not only improbable, but *Page 459 practically impossible, for the prosecuting attorney's argument to have in the slightest degree influenced the jury either to find the appellant guilty of murder or to enhance his punishment therefor. I think it utterly unreasonable that the jury, because of said argument, under the circumstances, ignored their oaths to decide the case on the evidence, and to have decided it, or been in any way influenced in deciding it, because of said argument. To my mind it is utterly unreasonable to think or imagine that the jury, disinterested and wholly unbiased, should ignore all of the evidence in the case, all of the argument of the able attorneys on both sides on the merits of the case, violate their oaths and decide the case, or be influenced in any way in deciding it, because of said one slight short statement of which they each had absolute knowledge, without reference to what the attorney said.
The court submitted both manslaughter and aggravated assault. The jury, under their oaths, after hearing all the evidence, charge of the court and argument of counsel, refused to find him guilty of either manslaughter or aggravated assault, but instead found him guilty of murder, as the evidence amply warranted, if it did not require them to so find. The deceased was shot in the back and killed by the appellant while he was running and forty or fifty yards away from him. To my mind the fact, if it be a fact, that appellant had had no previous acquaintance with the deceased instead of being in his favor is against him. He had no reason or cause whatever to shoot the deceased in the back, while he was running from him, and kill him. The penalty, in my opinion, is not a heavy penalty, considering all the facts of this case. Human life in this State seems to be the only cheap thing in it. Here the appellant, without cause or justification, shoots down the deceased, a young man just past twenty-two years of age, who in all human expectancies would have lived at least his three score years and ten, if not longer, and he and his family and the State is deprived of his life or perhaps fifty years by the appellant; and he should consider himself fortunate indeed if he escapes with punishment of confinement, not deprivation of his life, for even fifteen years. I think fifteen years, or not less than five nor more than fifteen, as his sentence is under the law now, is not a heavy penalty, but a very moderate one.
In my opinion, this judgment should not be reversed, but it should be affirmed.
ON REHEARING. January 12, 1916.