The offense is murder; the punishment, confinement in the penitentiary for life.
In his confession appellant admitted that he and two other Mexicans beat deceased over the head with a piece of wood after they had first bound him with leather belts. Deceased made a dying declaration in which he declared that appellant and two named Mexicans had beaten him. It was stated in the confession that appellant and his companions assaulted deceased in an effort to obtain money.
Testifying in his own behalf, appellant repudiated his confession and denied that he participated in the transaction resulting in the homicide. His testimony also raised the issue of alibi.
Bill of exception No. 10 relates to appellant's objection to the testimony of a witness to the effect that sometime after the homicide he went to the home of deceased and found $3,700.00 in a wall under the stairway. It is observed that appellant's confession shows that the assault upon deceased was made for the purpose of obtaining money. If appellant and his companions committed the offense in an effort to rob deceased it would seem to follow that they had information that deceased was possessed of money. The confession showing that the motive of the appellant was robbery, we are unable to reach the conclusion that receipt of testimony showing he had $3,700.00 in his home could have prejudiced the rights of appellant.
Bill of exception No. 9 relates to the action of the court in declining to permit appellant to introduce the last will and testament of the deceased, showing that he had left no property to his mother. It was appellant's contention that such proof would have tended to rebut the testimony to the effect that deceased had expressed solicitude for the welfare of his mother *Page 314 and asked a witness to see that she was taken care of. The testimony last mentioned was introduced by the State in laying a predicate for the introduction of the dying declaration. We are unable to agree with appellant that the rejected testimony was relevant and material. We quote from Branch's Ann. P. C., Section 97, as follows: "No circumstance is relevant which does not make more or less probable the proposition at issue."
Bill of exception No. 1 complains of the action of the court in excusing the sheriff from the rule. The matter of excusing an officer from the rule is one which is confided to the discretion of the court, and unless it is made to appear that the court abused his discretion no reversible error is shown. Branch's Ann. P. C., Section 344. We think the bill fails to show an abuse of the trial judge's discretion.
It is shown in bill of exception No. 7 that appellant requested the court to strike from the evidence the dying declaration of the deceased, as testified to by the sheriff. Touching the predicate for the introduction of the dying declaration, the sheriff testified that deceased said to him: "I am glad you came by. I feel like I am going to die, and before I die I want to tell you who jumped on me. It was the three Mexicans on the Bodo Stolte place; one was Herrera, one Simona, and a Mexican by the name of Rafael."
Moreover, another witness testified that deceased told him shortly prior to his death that he felt quite sure he would never return to his home; that he wanted the witness to see that his mother and his cattle were taken care of; that the Bodo Stolte Mexicans were the ones who attacked him. We think the testimony was sufficient to warrant the conclusion that deceased was conscious of approaching death when he made the declaration. It is not essential that the declarant shall state in specific terms that he is conscious of impending death. It is sufficient if it satisfactorily appears in any mode that the declarations were under that sanction, whether it be proved by the express language of the declarant, or be inferred from his evident danger, or the opinion of the medical or other attendants stated to him, or from his conduct or other circumstances of the case, all of which are resorted to in order to ascertain the state of the declarant's mind. Moore v. State, 78 S.W.2d 189.
Appellant admitted in his confession that he assaulted the deceased in an effort to obtain his money. A charge on circumstantial evidence was not required.
The judgment is affirmed. *Page 315
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
ON MOTION FOR REHEARING.