Appellant was convicted of murder with malice and sentenced to serve twenty-five years in the penitentiary.
The facts show that Hal Smith, the deceased, a brother-in-law of appellant, had some kind of an argument or difficulty with appellant, who was a constable, and during the controversy appellant's pistol was discharged, and a bullet therefrom striking the deceased just back of the left arm and ranging down through the vital organs of his body, and lodged in his right crotch, from which wound the deceased shortly died.
The facts surrounding the shooting were strongly contested, the State's witnesses testifying to what could be termed a useless and unprovoked killing, while appellant's testimony evidenced a struggle between the two contestants and an accidental firing of the fatal shot from appellant's pistol. Suffice it to say, these theories were both presented to the jury under proper and liberal instructions, and under our system of jurisprudence the jury's sanction thereof is binding upon this court in such disputed matters of fact.
The record is voluminous and contains many bills of exceptions, the important ones of which we will endeavor to notice.
The fatal difficulty took place near a gate and close to or in a motte of timber, which position was on the apex of a triangle, another angle thereof being the location of the home of the deceased, and the third angle being a wash place near a water well where the sister of the deceased, who was appellant's wife, and the mother of the deceased were located.
Mrs. Smith, the wife of the deceased, testified, over objections, that she was at her home on the morning of the trouble and heard appellant's wife say "Oh Jess, don't," and then a shot, and she immediately ran out of her house and saw her *Page 256 husband on the ground and appellant on top of the deceased choking him; that Mrs. Autry pulled appellant off the deceased, and the mother of deceased then said "Jess shot him." She immediately went to her husband, who walked toward the house and was calling for his gun, and the deceased then walked to the well, about 250 feet away, and bathed his face, at which time he made a statement to his wife, giving his version of this transaction. This statement was admitted as res gestae, and its admission is the basis of bills of exception to its admission. The witness then ran back to her house and got an automobile, and came and took the deceased, the appellant's wife, the deceased's mother, and the deceased's nine-year-old son Frank and drove to Medina City, about three miles away, to a doctor. This trip ended in town, so the witness said, all in about 20 or 25 minutes after the shooting. On the way into town Mrs. Hal Smith testified her husband told her that he was going to die, that he could not get well, and then related his version of what occurred at the scene of the fatal shooting.
Bills of exceptions Nos. 1 and 2 complain because of the small number of special veniremen contained in the jury panel first presented to this appellant from which number a jury was to be selected, the number being 40 jurors. The main complaint being that evidently from such a small number there would not be enough men qualified, and it would be necessary to summon talesmen, which duty would ordinarily devolve upon the sheriff, and appellant contended that the sheriff was actively assisting the prosecution herein, and would be prejudiced in thus selecting and summoning such desired talesmen. The trial court overruled a motion to quash the venire, but did appoint a constable of a Bandera County precinct, without objection upon appellant's part, to summon such talesmen.
It will be observed that this was a special term of court, and that Bandera County is not under the jury wheel system; that its population in 1940 was 4,234; that Art. 593, C. C. P. provides, among other things, that the jury commissioners shall select one man for every 100 inhabitants of the county, or a greater or less number, as directed by the court, which persons shall constitute a special venire list, from which list shall be drawn the names of those who shall answer summons to the special venire facias, etc. We think the trial court was within his rights when he thus exercised his discretion
Bills of exceptions Nos. 3 and 4 relate to the introduction of *Page 257 a statement made by the deceased while he was being carried to the doctor at Medina City, which statement was testified to by Mrs. Hal Smith, the wife, and Frank Smith, the son of the deceased. Such statement was admitted as both res gestae and as a dying declaration under the predicate laid by the testimony of Mrs. Hal Smith. It was shown that Mrs. Hal Smith heard screaming and heard a shot and ran out of her home up to the scene of the difficulty, and appellant was down on the deceased choking him, and appellant's wife pulled appellant off the deceased, her brother; it took about a minute for the witness to arrive at the scene. The witness further said that when her husband got off the ground appellant followed him with the gun in his hand, and said "If you don't stop, I am going to shoot you again," at which time the deceased holloed "Marty bring me my thirty-thirty." That she ran back and got the car parked by the side of the house, and her husband walked some distance and sat by the well washing his face, and she asked him where he was shot, and he said "in the back," and she said "Where did the bullet come out?" and he said "It did not come out," and by that time they started to town. That when they got in the car the deceased told her "I am going to die, get me to a doctor, and let's see what he says, but I know I am going to die." "He said it was not anything but just cold-blooded murder. * * * From the time we left the house where the shooting occurred until we got in the doctor's office in Medina it took about ten minutes to get there, probably twenty minutes in all from the time of the shooting, maybe twenty-five, not more than twenty-five." The trial court's qualification shows that this testimony was admitted as res gestae and the latter portion thereof as a dying declaration. It is shown that this witness was actually present at the end of this assault and saw the latter portion thereof, and what she recounted on the stand as to what she saw and heard was surely res gestae or the transaction itself, and took place in the presence of appellant. The portion of her testimony as to what took place in the car on the trip to town was sufficiently near to the time of the transaction to have also been called res gestae; but the statement was also, according to her uncontradicted testimony, given in contemplation of the death that actually followed soon thereafter. True it is that the phrase "he said it was not anything but just cold-blooded murder" strongly bears the marks of a conclusion of the declarant, yet same has been often characterized by the courts as a shorthand rendition of the facts. We find an exact counterpart to the present statement *Page 258 in the case of Finley v. State, 92 Tex.Crim. Rep.,244 S.W. 526, in which the dying declaration contained the following statement:
"I do not know the man's name who shot me. He shot me in cold blood. I was trying to prevent trouble between two other men when he shot me."
This court held that such a statement was but a shorthand rendition of the facts, and there we find many cases cited justifying such holding. In the Sims' case, 36 Tex. Crim. 156, this court held admissible a declaration to the effect that "Sims ought not to have shot me," and in Connell v. State, 46 Tex.Crim. Rep., a statement to the effect that "He had no cause for doing it," was held admissible. The Bateson case, 46 Tex.Crim. Rep., to which we are cited, which bears a different construction to the just above cited cases, has been overruled by this court on that point in the Clark case,56 Tex. Crim. 293. It is our conclusion that in the first instance the statement thus testified to by Mrs. Hal Smith was res gestae of the transaction, and in support of this proposition we quote from Freeman v. State, 239 S.W. 969, as follows:
"Many authorities hold that when a condition of suffering exists from the infliction of the injury to the making of the statement in a given case it might extend far enough to preclude premeditation and in cases of this kind we have declined to be limited to any specific time. Tooney v. State, 8 Tex. App. 459[8 Tex. Crim. 459]; Stagner v. State, 9 Tex. App. 441[9 Tex. Crim. 441]; Fulcher v. State, 28 Tex. App. 471[28 Tex. Crim. 471], 13 S.W. 750; Lewis v. State, 29 Tex. App. 201[29 Tex. Crim. 201], 15 S.W. 642, 25 Am. St. Rep. 720; Castillo v. State, 31 Tex.Crim. R., 19 S.W. 892, 37 Am. St. Rep. 794; Moore v. State, 31 Tex.Crim. R., 20 S.W. 563; King v. State, 34 Tex. Crim. 237, 29 S.W. 1086; Freeman v. State, 40 Tex.Crim. R., 46 S.W. 641, 51 S.W. 230; Chapman v. State, 43 Tex.Crim. R., 65 S.W. 1098, 96 Am. Rep. 874. Reference to these cases will disclose that statements made at times varying from 20 minutes to a longer period than an hour and a half were admitted as res gestae under appropriate surroundings."
This holding also disposes of the statement of Frank Smith relative to what he heard his father say while in the car going to Medina City concerning the transaction in which the father lost his life as reflected in bill of exceptions No. 7.
Exception was also reserved to the testimony of witnesses *Page 259 as shown by bills Nos. 8, 9 and 10 as to what purported to be a dying statement made by the deceased at the hospital just before an anesthetic was administered to him in an effort to relieve him from the effects of the bullet in his body. It was shown that when the opening portion of such statement relative to being conscious of approaching death and having no hope of recovery was read to the deceased he merely nodded his head in affirmation thereof, so the witnesses testified, and under the circumstances we think such an affirmation was sufficient to show an abandonment of all hope by such sign as conclusively as if he had made such statement orally; and especially would this apply in the presence of the statement made some short time prior thereto to his wife, and the information conveyed to the deceased that it was very doubtful if he could survive the operation. We make the observation that this statement thus made by the deceased was properly admitted as a dying declaration, and thus overrule the bills of exception relative thereto. We note that the State's proof authorized the finding of the presence of all of such elements.
It is also noted that the careful trial court submitted in his charge to the jury the different constituents of a dying declaration, and instructed them that they should not consider same for any purpose unless they believed that the deceased was conscious of approaching death, with no hope of recovery; that same was voluntarily made, and not through persuasion; not in answer to interrogatories calculated to lead to the making of such statement, and that his mind was sane at such time.
Bill No. 10 relates to the trial court's refusal to allow the appellant to prove what he said to the sheriff of Bandera County at the time he surrendered to such sheriff relative to the shooting being accidental. This was a self-serving declaration made after a motive to fabricate had arisen and was not admissible. See Rains v. State, 146 S.W.2d 176.
Bill of exceptions No. 13 complains because of the State being allowed to prove over appellant's objection a portion of a conversation had between the deceased and one Collins, in which the deceased was alleged to have asked the witness did Collins think deceased was going to die, and upon being reassured by Collins that deceased was not going to die, then the appellant brought out the statement by deceased that he would live to kill appellant. After this testimony was given, the State asked the witness what else was said in this conversation, and the trial court allowed the State to show by Collins that the deceased *Page 260 also said "he shot me in cold blood * * * he shot me in the back and running." This latter portion of the conversation inquired about seems to be admissible under Art. 728, C. C. P.
Bills Nos. 14 and 15 relate to a conversation had between appellant and his wife in the presence of one Rev. Gossett while appellant was confined in the Bandera County jail. Appellant's wife was an eye witness to the tragedy and gave testimony in his behalf damaging to the State. It was shown by appellant's testimony that he sustained certain bruises and scratches in the fatal difficulty which were said by him to have been inflicted by the deceased. This impeaching testimony of Rev. Gossett was to the effect that the wife told the appellant in his presence relative to those scratches on his neck: "Yes, I know I done it pulling you off from Hal (the deceased)." And that she further made the statement at such time that her brother, the deceased, was trying to get away from appellant and that her husband shot him in the back.
The appellant's wife had testified fully in regard to the difficulty and made out a case different in some respects from the statement made in Rev. Gossett's presence. She also denied making such statement, and after laying a predicate therefor the State was permitted to prove the making of such by the witness Gossett. She had previously fully testified relative to the whole transaction and became as any other witness subject to impeachment upon all matters which the appellant had seen fit to question her about. The trial court, however, very properly limited the effect of such testimony only as to her credibility as a witness. We think his ruling was correct in this matter. See Glover v. State 152 S.W.2d 747 and cases there cited.
We have examined bill No. 17 and do not think the same evidences any error.
Bills Nos. 18 and 19 relate to the same proposition as advanced in bills Nos. 14 and 15, and are governed by the ruling above set forth relative to such bills.
We see no error reflected in bills Nos. 21 and 22, they relating to certain experience and an opinion deduced therefrom of a witness who seems to have qualified as an expert in the matters inquired about. *Page 261
Bill No. 23 relates to a refusal of the trial court to allow the appellant to reopen the case after same had been closed and all witnesses excused, the court stating in his qualification thereto that appellant's counsel had informed him that it would take much time to recall the witnesses relative to such matters. We think the trial court had a wide discretion in such matters, and we hold that his action herein was not an abuse thereof. It is also evident from the facts proven on the motion for a new trial that the desired testimony would have opened a controversy that would have required the presence of many witnesses upon both sides over a matter that had probably been unduly prolonged in the trial of the case.
Bill No. 24 is based upon certain remarks of the district attorney in his closing address to the jury. It is noted, however, that no objections were made nor exceptions taken thereto at the time, and we do not think same were of such a nature that they should have been calculated to unfairly influence the jury in its deliberations. The bill is overruled.
Misconduct of the jury was alleged in the motion for a new trial, and testimony taken relative thereto. It was alleged that the juror Ed Welch was not a fair and impartial juror, as well as that a further juror, Mr. Charles Moore, was also not such a juror. Much testimony appears in the record relative to Mr. Welch, some of which was admitted by him to be true, and some of which was denied by him. Taken as a whole, it seems that some person who had talked to a witness who purported to know what was said during the hurried trip to the hospital, made by the deceased and his wife, told in the juror's presence what purported to be the statement of deceased as to how the trouble happened. It was also shown that the juror had made the remark prior to having been taken on the jury, on seeing the appellant passing along the road, that "he would hate to be in his (appellant's) shoes." The juror's answer to such was that he would hate to be in anyone's shoes who was accused of murder. To the first accusation the juror said that he told the examining attorneys when on his voir dire that he had heard the neighborhood talk relative to this case, but that he had formed no opinion thereon, and had no opinion at the time he was taken on the jury. He denied any bias or prejudgment of the matter, and the trial court evidently believed him, and we think the court's discretion in the matter evidences no abuse thereof. The second juror, Charlie Moore, had died in the interim between the trial and the hearing of the motion, *Page 262 and we think the trial court was again correct in his holding that the proof did not show him to be biased or prejudiced against the appellant.
We think this case has been fairly tried, with no errors evidenced by the record, and it is therefore accordingly affirmed.
ON MOTION FOR REHEARING.