Jackson v. State

In the light of the able and courteous motion for rehearing, we have again reviewed this record. Counsel appointed to defend appellant had full opportunity to talk to him and the other defense witnesses, all of whom were present, as stated by the trial judge in his approval of bill of exception No. 1 which complains of the refusal of a continuance. Having this opportunity to ascertain the names of absent witnesses, and to learn facts expected of them, it would be reasonable that the application for continuance should state something else beside the conclusion that the attorneys appointed had not had time to prepare for trial. Nor does the motion for new trial, filed after all the witnesses had been heard, set up any facts which may have been brought out from witnesses indicating that the case was not fully developed and the testimony *Page 400 all present. We think the court did not err in overruling the application.

The testimony of Mrs. Reynolds, complained of in bill of exception No. 2, was clearly res gestae. We are also of opinion that the testimony of Deputy Sheriff Bell, as to statements made to him by deceased, was admissible on the ground that the statements were dying declarations. The predicate was fully established as to the mental condition of deceased at the time and his expectation of death.

What was said in our original opinion disposing of the objection to the State's introduction of the witness Bassett to impeach State witness Johnnie Williams, appears to be in accord with established precedents. Beyond question said witness, who was introduced by the State, had testified contrary to his former testimony, and the State had the right, on the ground of surprise, to impeach him. There are only four bills of exception in the record.

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

Overruled.