McKenzie v. State

In appellant's motion it is urged that the predicate for the dying declaration of deceased was not sufficient. Complaint of this appears only in bill of exceptions No. 3 wherein is set forth, first, an objection to a question asked the wife of deceased, — but her answer, if any, not being stated, nothing appears for our review. The same bill presents the testimony of Mr. Franco as to the dying declaration, which is set out followed by the objections urged to Franco's testimony. Recital of objections made does not amount to any proof of the truth of the reasons stated as grounds for the objection. This has often been adverted to by us. In the bill under discussion not only is there lack of showing that the ground of objection stated in fact was true, but there also appears a qualification to said bill in which the learned trial judge avers that sufficient predicate had been laid for the admission of the dying declaration in other testimony. The bill was accepted in this condition. This renders of no avail the argument in the motion on the point attempted to be thus raised.

Appellant also again urges that the flash light offered in evidence, was not properly seized, etc., and that its admission in evidence was error. We have nothing to add to what we said in Welchek v. State, cited in the original opinion, in which the authorities were fully reviewed. We might, however, add on the facts that the flash light in question was never seen in appellant's possession until after this homicide, and that it was positively identified on the trial by the widow as the property of her husband and in his possession the night he was killed. Under such facts we know of no authority which would hold its introduction erroneous. If there existed a contention based on facts as to the identity and ownership of the flash light, same would not suffice for the rejection of the testimony but would merely make such question one for the jury to decide.

We think our disposition of appellant's complaint of the argument, in our former opinion, was correct.

Being unable to agree with either of the contentions made, the motion for rehearing will be overruled.

Overruled. *Page 569