Warren v. State

White, P. J.

When the witness Luclcett, who was one hundred and fifty yards off, heard the shot and saw the deceased fall, he immediately went to the spot and asked the deceased, 11 How in the world did you shoot yourself ? ” To which deceased answered, “ I did not do it; I was shot from up yonder,” meaning by “ up yonder ” from the side of the mountain, as the witness understood from some motion then made by deceased. These declarations were res gestae, and properly admitted, and it was not necessary that a predicate should first have been laid for their introduction as dying declarations. “ Where the declarations of the injured party are part of the res gestae, they are admissible without proof of a consciousness of approaching death.” Whart. Cr. Ev. (8th ed.), sect. 296. But it-is objected that the witness should not have been allowed to state that by “ up yonder,” from a motion made by deceased, he understood him to mean from the side of the mountain. It is to be noted that before Luckett was put upon the stand as a witness, a proper predicate had been laid through the witness Estes to prove dying declarations ; so that this portion of Luckett’s evidence was, in fact, both res gestae and dying declarations. With regard to dying declarations, the rule is that “it is not essential to admissibility that the statement should be formally expressed in words. T., being at the point of death, and conscious of her condition, but unable to speak articulately in consequence of wounds inflicted upon her head, was asked whether it was C. who inflicted the wounds; and if so, she was requested to squeeze the hand of the person making the inquiry. It was held that, under all the circumstances of the case, there was proper evidence against C. for the consideration of the jury, they being the judges of its credibility, and of the effect to be given to it.” Id., sect. 293. “And signs made by deceased have been admitted, when they go to affirm a prior formal statement.” Id., sect. 287. Whilst it is true that dying declarations are admissible only as to those things to which the deceased would have been competent to testify if sworn in the cause, and must therefore speak to facts only, and not to mere matters of opinion (1 Gfreenl. on Ev., sect. 159 ; Lister v. The State, 1 Texas Ct. App. 739), the testimony objected to was a fact of which the deceased could have testified, had he been upon the stand; for it certainly would have been permissible to allow the witness upon the stand to testify that he was shot from the side of the mountain.

But there was error in permitting the proof of the other declarations of the deceased which were objected to. This relates to what occurred, and the statement made afterwards to the witness Box. When Box arrived, he said to deceased, “Who do you think shot you?” to which the deceased replied, “ ITcnow George Warren shot me, for he threatened me.’ And this same objection, as we will sec, goes to a portion of the evidence of Luckett, as to what occurred after Estes reached the dying man. “Estes approached and took hold of the hand of the deceased, and the deceased said to Estes, 1 He has got me.’ I [the witness] then asked Estes,6 Who does he mean by saying, ‘ Ho has got me ’ ? Estes replied, 1 He means George Warren, for he has threatened both of us.’ ”

“ Dying declarations are admitted, from the necessity of the case, to identify the prisoner and the deceased, to establish the circumstances of the res gestae, and to show the transactions from which the death results. When they relate to former and distinct transactions, they do not come within the principle of necessity. Therefore, it seems that dying declarations by a party that the prisoner had two or three times previously attempted to kill him, are not admissible. And so they are inadmissible when they go to show old malice on the part of the prisoner to the deceased.” Whart. Cr. Ev., sect. 278. “ Nothing can be evidence in a declaration in articula mortis that would not be so if the party were sworn. On this rule, anything the murdered person says as to facts is receivable, but not what he says as matter of opinion or belief. Hence the declaration, 6 It was E. W. who shot me, though I did not see him,’ is inadmissible.” Id., sect. 295; Nelson v. The State, 7 Humph. 542. And where the deceased had been shot at night by some unknown person, his dying declarations, to the effect that the prisoner, who was one of his employer’s slaves, was the only slave on the place wh© had enmity against him, were held incompetent and inadmissible evidence as against the prisoner. Mose v. The State, 35 App. 422.

A like objection holds good to that portion of Luckett’s testimony as to Estes’ reply when he (the witness) asked Estes whom the accused meant when he said, “ He has got me,” and Estes’ reply, “ He means George Warren, for he has threatened both of us.” If this testimony was inadmissible had it come directly from the mouth of deceased, as we have seen would have been the case, from the above authorities, a fortiori it is much more objectionable when coming from a third person, and that, too, as mere inference or opinion of such person as to his meaning. McHugh v. The State, 31 Ala. 317; Barnett v. The People, 54 Ill. 325.

Two questions of misconduct are raised with regard to the jury: First, that they were allowed to separate during their deliberations; second, that they arrived at and determined the verdict by lot.

It seems that several of the jurors were permitted at different times by the court, and in some instances with consent of the attorneys for the State and defendant, to leave their fellows and go in charge of an officer to a distant portion of the city, some for tobacco and others for a necessary change of clothing. Why the bailiff, or officer having them in charge, could not as well have attended to the matters, or had the matter;; attended to by others, without .taking the jurors off with him from the jury-room, we cannot imagine. We cannot understand why he could not have sent out for tobacco and a change of clothing for the individual jurors, without taking them off for a long time from the jury to get such articles. Our statutes are very plain and emphatic upon the subject. They provide that, “After the jury has been sworn and empanelled to try any case of felony, they shall not be permitted to separate until they have returned a verdict, unless by permission of the court, with the consent of the; attorneys representing the Sfcrte and the defendant, and in charge of an officer.” Code Cr. Proc., art. 687. “ It is the duty of the sheriff to provide a suitable room for the deliberation of the jury, in all •criminal cases, and to supply them with such necessary food and lodging as he can obtain; but no spirituous, vinous, or malt liquors of any kind shall be furnished them.” Id., art. 689. “No person shall be permitted to be with a jury while they are deliberating upon a case, nor shall any person be permitted to converse with a juror after he has been empanelled, except in the presence and by the permission of the court, * * * and in no case shall any person be permitted to converse with the juror about the case on trial.” Id., art. 690.

In one of the instances mentioned in the record, two of the jurors were taken off by the deputy-sheriff to the home of one of them, where they remained from twenty minutes past twelve o’clock a. m. until after four o’clock p. M., a portion of which time they were separated eveu from the officer pretending to have them in charge, and the balance of the time was spent with the family of the juror, with whom they conversed and ate dinner, after which they spent several hours in playing billiards. It is true, they swear that they conversed with nobody about the case; still, such conduct upon the part of jurors and officers is a plain violation of the spirit and letter of the statute, and should not be tolerated in grave cases affecting the life or liberty of the citizen, when not only the defendant but the State also demands that the verdict of the jury shall be above suspicion, and command full faith and confidence. Early v. The State, 1 Texas Ct. App. 248.

According to previous decisions, the method adopted by the jury for determining the punishment to be assessed against the defendant, after his guilt had been agreed upon, is not obnoxious to the objection that the verdict was “ decided by lot, or in any other manner than by a fair expression of opinion by the jurors,” which is one of the grounds for a new trial named in the statute. Code Cr. Proc., art. 777; Leverett v. The Stale, 3 Texas Ct. App. 213 ; Handlev v. Leigh, 8 Texas, 129. Still, such a mode of settling their differences of opinion with regard to the punishment is not to be commended, and the affidavit of a juror seeking to impeach his own verdict in this respect, or indeed in any other similar respect, has always been highly reprobated by the courts.

Upon the defence relied on, which was insanity and mental hallucinations and delusions, the charge of the court is complained of as insufficient and erroneous, as is also the refusal to give upon those subjects certain requested instructions submitted by defendant’s counsel.

In the main, the charge was correct, being almost a literal copy of the doctrine enunciated by Mr, Greenleaf, and recognized as correct by the weight of authority in this country. Mr. Greenleaf says : “ In criminal cases, in order to absolve the party from guilt, a higher degree of insanity must be shown than would be. sufficient to discharge him from the obligations of his contracts. In these cases the rule of law is understood to be this: that a man is not to be excused from responsibility if he has capacity and reason sufficient to enable him to distinguish between right and wrong as to the particular act he is then doing; a knowledge and consciousness that the act he is doing is wrong and criminal will subject him to punishment. In order to be responsible, he must have sufficient power of memory to recollect the relation in which he stands to others and in which others stand to him; that the act he is doing is contrary to the plain dictates of justice and- right, injurious to others, and a violation of the dictates of duty. On the contrary, although he may be laboring under partial insanity, if he still understands the nature and character of his act and its consequences ; if he has a knowledge that it is wrong and criminal, and a mental power sufficient to apply that knowledge to his own case, and to know that if he does the act he will do wrong and receive punishment, such partial insanity is not sufficient to exempt him from responsibility for criminal acts. If, then, it is proved to the satisfaction of the jury that the mind of the accused was in a diseased and unsound state, the question will be whether the disease existed to so high a degree that for the time being it overwhelmed the reason, conscience, and judgment, and whether the prisoner, in committing the homicide, acted from an irresistible and uncontrollable impulse ; if so, then the act was not the act of a voluntary agent, but the • voluntary act of the body without the concurrence of a mind directing it.” 2 Greenl. on Ev., sect. 372; Carter v. The State, 12 Texas, 500; Thomas v. The State, 40 Texas, 60; Webb v. The State, 5 Texas Ct. App. 596.

We are of opinion, however, that the court erred in refusing to give in charge the fifth special instruction requested, in the following terms : “ That, in determining the insanity of the defendant at the time of the killing of Miller (if the defendant did kill Miller), the jury are authorized to look at all the facts and circumstances in evidence before them relating to the question of defendant’s sanity — that is, all the facts and circumstances relating to the defendant’s mental condition after and since the killing, as well as the facts and circumstances relating to defendant’s mental condition before the killing.”

Testimony that defendant had exhibited evidences of insanity since the homicide, and up to the time of trial, as well as before the killing, had been adduced and properly laid before the jury, and the jury should have been instructed that they were to consider it, along and in connection with the other testimony, in arriving at their conclusion ; for it is a rule of law that “ evidence of the state of the mind of the party, both before and after the act done, is admissible in determining the question of sanity.” 2 Greenl. on Ev., sect. 371; Webb v. The State, 5 Texas Ct. App. 596.

Several other errors are claimed to have been committed on the trial, but we have noticed and discussed all which we deem, important or tenable; and, on account of those which we have pointed out and discussed, the judgment of the District Court will be reversed and the cause remanded for another trial.

jReversed and remanded.