Appellant was convicted of the murder of Pearl Bransford, and his punishment assessed at death.
Dr. MacKechney testified to being called to see the woman; that he had her carried to the sanitarium, and that the wounds she received were the cause of her death. He testified her face was literally torn all to pieces — that her upper jaw was broken, and all her teeth on the right side were broken loose; her lower jaw was broken, and there were seven distinct wounds on her head; that he found a hammer there bloody; that there were wounds practically all over her entire scalp, *Page 480 and there were several places where the outer table of her skull was broken. He says he told Mr. Nelson and his wife that he thought it was useless to attempt to do anything for her, but at their request he treated her. That in his opinion the woman was conscious; and he furthermore testified that he informed the woman she was going to die and that she wanted to tell the truth. Mrs. Nelson says the woman was informed that she was going to die, and the doctor thought she was dying.
The doctor's testimony and Mrs. Nelson's testimony would be admissible both under the res gestae rule and as dying declarations. While the statements made to the undertaker were some time after the statements were made to the doctor, yet his testimony would tend strongly to show that she was conscious, and his testimony would be admissible as a dying declaration.
There are a number of bills objecting to testimony wherein when asked who did it, she would answer to "Sharles"; to others Charles Thompson, and to others would nod her head in the affirmative when asked the question. It is true that witnesses for appellant testified they did not think she was conscious, but this would not render the testimony inadmissible, but go to the weight to be given it by the jury. When the State's witnesses testified that she was conscious and informed that she was going to die, this made a prima facie case, and rendered the testimony admissible. When the defendant offered testimony that she was not conscious of what she was saying, this rendered it a question of fact to be determined by the jury. None of the bills complaining of the admissibility of this testimony present error.
The testimony of Dr. MacKechney as to what Miss Gossler said to him was admissible. Appellant introduced Miss Gossler and had her testify that in her opinion the woman was unconscious when she made the statements that appellant inflicted the injuries on her head. Any statement she had made to Dr. MacKechney prior to her so testifying would be admissible as tending to impeach her, and the court in approving the bill says he so limited the testimony.
The testimony of a previous quarrel between deceased and appellant was admissible as tending to show motive for the crime. The witnesses testify that appellant had told the negro woman that "no other man should have her." It was shown another man called on her that evening and was to call again that night, and when he did call he found the negro woman murdered. It is shown that appellant could have and probably did know that Ben Henderson had called that evening and was to call again that night.
The court did not err in overruling the application for a continuance. While it is always permissible to show that another probably committed the crime, or that another had made threats, or had ill-will, if the testimony goes further and would place such person in such proximity to the person that he might or could have committed the deed. The fact one absent witness would testify that he "knew the woman was quarrelsome, and knew of two men who had made threats" *Page 481 would be immaterial, unless such other two persons, or one of them, were placed in such position where they had an opportunity to commit the offense. There is no allegation in the motion as to where the two persons were on the night of the homicide, nor is the name of either of them given. The fact that the absent witnesses had never heard appellant make any threats toward deceased, would be immaterial, nor would such testimony tend to weaken the testimony of the State's witnesses who heard and testified to the threats. Doubtless any number of men could have been picked up who would have testified and testified truthfully they had never heard appellant make a threat. Before the testimony of such witnesses would become material they would have to place themselves in position to have heard the threats testified to by the witnesses for the State. There is no allegation they were present on such occasion, nor is it so contended in the record before us.
Three or four witnesses testify to the fact that deceased, in her dying declaration, said appellant committed the offense and the court did not err in refusing to charge on circumstantial evidence. It was a case depending on direct and positive testimony. If the jury had not believed the woman was conscious when she made the statements charging appellant with having inflicted the wounds which caused her death, they should not and would not have convicted him, much less assess the highest penalty known to the law.
The judgment is affirmed.
Affirmed.