Appellant was convicted of murder and his punishment assessed at twenty-five years confinement in the State penitentiary.
The first bill complains of the action of the court in refusing to grant a continuance. By the bill it is shown that the attendance of all the witnesses named was secured except two: H.A. Furman and Claude Abblecrumlie. The facts stated appellant expected to prove by Furman would be material to his defense, and the question arises, did the State in its contest show that the witness was an incompetent witness and could not testify were he in attendance on court? In the contest the State swears that Furman had been convicted of a felony and sentenced to the penitentiary, in the District Court of Kerr County. The defendant contends that the only competent proof of this fact was a certified copy of the judgment and sentence. Generally this is true, and if Furman had been convicted in any other court than the District Court of Kerr County there might be merit in his contention. But a judge takes judicial notice of all judgments and decrees entered in his court, and when he had his attention called to the fact that Furman had been convicted of a felony, he judicially knew that fact to be true, and no proof, oral or otherwise, was required. Mayhew v. State, 69 Tex. Crim. 187, 155 S.W. Rep., 191; State v. Savage, 151 S.W. Rep., 530; Blum v. Stein, 68 Tex. 608; Cyc., vol. 16, p. 915. And where the incompetency of a witness has been shown, it is presumed that he continues incompetent, and if a pardon is relied on to re-establish his competency, a copy of the pardon must be produced by the party so contending. Schell v. State, 2 Texas Crim. App., 30; Cooper v. State, 7 Texas Crim. App., 194.
As to the witness Abblecrumlie, as appellant set up in his application the same facts by Bess and Nailer, both of whom were in attendance, and neither used as a witness, there was no error in overruling the application for a continuance. *Page 514
In the next two bills appellant objected to Dr. A.A. Roberts and E.A. Wied being permitted to testify that from three to five minutes after the time deceased was stabbed deceased came from the front door of his place of business and ran rapidly to him and said, "Doctor, do something for me quick, I have just been stabbed; Mr. Baker stabbed me; old man Baker stabbed me, I am turning blind right now, catch me, I am going to fall." That Dr. Roberts caught deceased, Dudley Laurie, as he fell. That deceased was perfectly sane, and died in a few minutes. The testimony was admissible both under the res gestae rule and as dying declarations.
An objection was made to permitting the State to ask Mrs. Etwell Laurie on cross-examination if shortly after the killing she did not close the door of the confectionery and place thereon a placard, "closed today." Many objections were urged to this testimony, the defendant not being present when the act was done. Mrs. Laurie was not a bystander, in a strict sense, in this transaction, according to her own testimony. Mrs. Laurie was a most material witness for the defendant, and testified to her husband being drunk, cursing and abusing her, and when her brother asked him to desist deceased cursed him and drew a gun on him; that she then picked up a shotgun, drew it on him and told him not to shoot her brother; that deceased laid his gun down and she laid hers down. She says she went to hunt for an officer but failing to find the officer, she found her father and asked him to hurry to the confectionery; that her husband, deceased, was trying to shoot Ivy, her brother, when her father replied, "He must not do that, — can't you all get along?" That her father, Furman and herself returned to the store; that after a few words passed deceased grabbed a gun and said, "I will kill all three of you." That Furman grabbed the gun, and in the scuffle it looked like deceased was about to get the gun away from Furman, when her father struck deceased; that deceased then turned the gun loose and went out the front door, and this is the time Dr. Roberts says deceased made the statement, appellant's testimony making such statement clearly res gestae of the transaction. It was right after the deceased left that Mrs. Laurie was seen to close the door and put up the placard, "closed today." The court, under the evidence of defendant, necessarily was required to charge if deceased assaulted appellant, or from his acts and conduct led appellant to believe he was about to assault Mrs. Laurie, or her brother, to acquit appellant. When the officers got in the house no guns were on the table, nor in sight, but were found lying under the mattress of the bed. The State's contention was that deceased had no gun and drew no gun, but the gun was all the time under the mattress on the bed, and the store was closed up so that matters might be arranged, but the officers got in the store too quickly. Of course, the defendant claimed that Mrs. Laurie had placed the guns under the bed after her father had stabbed deceased. Such being the issue in the case, the evidence was clearly admissible and the court did not err in so holding. *Page 515
In bills 8 and 5 it is made to appear that the deputy sheriff, Henry Staudt, was permitted to testify that shortly after the cutting he approached appellant with the intention of arresting him, but before doing so or saying anything that would lead appellant to believe he intended doing so, he called appellant to one side and said to him, "I understand you had a little trouble a while ago," and appellant replied, "I haven't had a d__n bit of trouble." Witness then made a further statement, "Somebody cut or stabbed Dudley Laurie pretty bad," appellant replying, "I don't know a d__n thing about Dudley Laurie." That he then arrested appellant. Appellant was also questioned about this matter on cross-examination, and it is to the testimony of Mr. Staudt and the cross-examination of appellant that the exceptions were reserved. Appellant had testified on this trial and to a most vigorous case of self-defense and the defense of his daughter and son, and why should not his statements made a few minutes after the cutting be admissible to show he made no such claim at that time? He was denying all knowledge, and would be still denying it, we suppose, but for the fact that with his dying breath Henry Laurie had told Dr. Roberts and Mr. Wied who had cut him. It is true if his statement had been a confession that he committed the deed, our statute, if he was under arrest, would exclude it, but under no construction of the language can his words be construed into a confession that he committed the act, but instead is a most emphatic denial that he did so, and is wholly exculpatory. We examined this question in the cases of Whorton v. State,69 Tex. Crim. 1, 152 S.W. Rep., 1082, and Mason v. State,74 Tex. Crim. 256, 168 S.W. Rep., 115, and we do not deem it necessary to again discuss the question. In the Whorton case, we reviewed the authorities, and while our own decisions had not theretofore been uniform, yet the great weight of authority was that an exculpatory statement was not a confession within the meaning of the statute, and, therefore, the statute did not inhibit the testimony, and under the common law rules the evidence was clearly admissible. It is made clear that appellant was not under arrest when he made the statements, nor does his testimony make it plain that the officer intended to arrest him. Aside from this, under the evidence in this case the time elapsing and the facts and circumstances would render the testimony admissible as res gestae, under the authorities cited in section 341 of Branch's Criminal Law
As Mrs. Laurie was so material a witness for the defendant, her conduct on the occasion was admissible to prove the fact she did not go to the body of the deceased until late that night This was admissible as affecting the credit to be given the testimony of Mrs. Laurie. It was unnatural conduct if she cared anything for her husband, and while perhaps under the facts in evidence in this case, it would have but little weight, yet it was admissible to be given such consideration as the jury deemed proper. It was also permissible to prove by W.C. Coleman that immediately after the killing Mrs. Laurie had said to *Page 516 him, "The killing was uncalled for." On this trial she testified to a state of facts which authorized and rendered imperative the killing of her husband by her father to save his own life, her life and the life of her brother, and as she was called as a witness by defendant to prove those facts, she could be impeached by contradictory statements made at a time near the killing.
As appellant testified in his own behalf, it was permissible, as affecting his credit, to prove that he had within less than seven years prior to this trial been indicted for a felony. Of course, the court should have and did permit him to testify that he was acquitted of the charge.
There were no exceptions reserved to the charge of the court, and the court gave four of the six special charges requested by appellant. One of them was fully covered by the main charge of the court as well as by two of the special charges given. The other one refused was also fully covered in all its features, except that portion which would have instructed the jury, "that appellant had a right to go to the place of the cutting." This was not an issue in the case. The State's testimony and the defendant's testimony both show that appellant boarded at the place, and it was his home, and had been ever since deceased and his wife had moved back to Kerrville and he had lived with them when they resided in Houston before returning to Kerrville. As no such issue was in the case, nor could the jury have inferred from any evidence heard that appellant did not have the right to go to the place, but the whole case proceeded on the theory this was his home, the fact the court failed to so instruct the jury presents no error.
Appellant makes a strong case of self-defense, and if this is not true, then the killing would take place under such circumstances as to reduce the offense to manslaughter. The State's case, to meet this, was mainly circumstantial, but we can not say that the evidence will not sustain the finding of the jury, when the jury and the trial judge who heard the testimony find the State's theory to be the true one.
The judgment is affirmed.
Affirmed.
DAVIDSON, JUDGE, dissenting.
ON REHEARING. June 21, 1916.