Gowans v. State , 64 Tex. Crim. 401 ( 1912 )

This case was affirmed at a former day of this term, and appellant has filed a motion for rehearing in which he earnestly insists we were in error in holding that the testimony of the witness Manion was admissible. The witness testified: "He (deft.) confessed to me that he had stolen this belting from the Continental Gin Company, and also stated he had stolen other belting," which was objected to on the ground that "said confession was not in writing, and was made after the defendant was under arrest." For the circumstances under which this confession was made we refer to the original opinion where the testimony of the witness was copied in full. Upon a more thorough examination of the record and the authorities we are more firmly convinced that the evidence was admissible as a res gestae statement. In the case of Powers v. The State, 23 Texas Crim. App., 42, Judge White discussed this question, and holds:

"Most serious complaint is made of certain testimony of the State's witness, Coggin, permitted to be given in evidence over defendant's objections. The witness Coggin was the party who arrested defendant after the homicide, under circumstances which may be briefly stated thus: In a very few seconds after the fatal blows had been inflicted, Grounds told defendant `he had killed Eubank, and that he had better get on his horse and leave.' Defendant immediately mounted his horse and fled. Coggin, seeing him on his horse running off, and having heard he had killed Eubank, procured a Winchester rifle, mounted another horse and went rapidly in hot pursuit, which pursuit was continuous for a period of not more than five minutes, when he overtook or came upon the fugitive, having gone about three-quarters of a mile. When within thirty or forty feet of defendant, Coggin says: `I told him to hold up; if he did not I would kill him. I told him this two or three times; about the second or third time I told him this he stopped and I held him up.' Witness was asked by the prosecution, `What then occurred?' and answered, `I told him he must go back to town then with me; that he had killed Eubank.' Counsel for the State then asked witness, `What did Powers say in reply?' to which defendant's counsel objected because defendant was under arrest, and because no predicate had been laid as required by the statute for the admission of confessions of a defendant made under arrest. These objections were overruled, and in answer to the question the witness said: `Defendant said, "No, I have not killed him." I said, yes, you have, and defendant replied, "If I have killed him nobody saw me."'

"Our statute relating to or prescribing the rules under which admissions or confessions of a party being in arrest may be used against him (Code Crim. Proc., arts. 749 and 750), have uniformly been construed to embrace all statements, acts or conduct from which guilt might be inferred. (Haynie v. The State, 2 Texas Crim. App., 168; Marshall v. The State, 5 Texas Crim. App., 273; Williams v. The State, 10 Texas Crim. App., 526; Austin v. The State, 15 Texas Crim. App., 388.) That defendant was under arrest, as shown by the circumstances above mentioned, can scarcely be questioned; that an inference of guilt might well be predicated upon his statement, `If I have killed him nobody saw me,' will not be denied. And, again, the inference may also be correct that defendant was in fear of his life when he made the statement, and a statement made under such circumstances could not be regarded as voluntary. (Warren v. The State, 29 Tex. 370 [29 Tex. 370]; Nolan v. The State, 14 Texas Crim. App., 474.)

"As confessions or as admissions of fact from which guilt might be inferred, we are of opinion that the objections urged to the admission of the testimony should perhaps be considered well taken. The question then is, was the testimony admissible as res gestae? If res gestae, then the evidence was admissible, notwithstanding it might not be admissible as a confession or admission, because res gestate is independent of, superior to, and can not be restricted or limited by the rules relating to confessions or admissions made after arrest. Whilst it is true that declarations made by a defendant in his own favor, unless part of the res gestae, are not admissible for the defense, it is otherwise equally true that when such declarations are part of the res gestae they are admissible either for or against the defendant. Mr. Wharton says: `Res gestae are events speaking for themselves through the instinctive words and acts of participants, not the words and acts of participants when relating the events. . . . Nor are there any limits of time within which the res gestae can be arbitrarily confined. They vary in fact with each particular case. . . . They need not be coincident as to time if they are generated by an excited feeling which extends without break or let down from the moment of the event they illustrate. In other words, they must stand in immediate casual relation to the act, and become part either of the action immediately producing it, or action which it immediately produces. Incidents which are thus immediately and unconsciously associated with an act, whether such incidents are doings or declarations, become in this way evidence of the character of the act.' (Wharton Crim. Ev., 8th ed., secs. 262 and 263.) Again he says, `But we must remember that continuousness can not always be measured by time.' (Id., sec. 264.) And again, `Instinctiveness is the requisite, and when this obtains the declarations are admissible.' (Id., sec. 691; see also Bradberry v. The State, 22 Texas Crim. App., 273, and Cartwright v. The State, 16 Texas Crim. App., 473.) We are of opinion the evidence was admissible as res gestae."

If the statement in that case was admissible as res gestae, the testimony objected to in this case would certainly be admissible, and the rule as thus laid, has been followed by this court in an unbroken line of decisions.

Again, it is contended that this court stating that the remarks of the county attorney were improper, the case should be reversed. If, as said in the original opinion, there was any question of the guilt of defendant, if under any contention the defendant would be entitled to an acquittal, we would be inclined to agree with appellant. The attorneys should never use such language, but under the evidence in this case, as copied in full in the original opinion, no verdict other than that of guilty could have been rendered by the jury, and under such circumstances this court has held in Young v. The State,31 Tex. Crim. 24: "While the remark was improper and prejudicial to defendant, the error was harmless under the facts of this case, because the guilt of defendant was incontrovertible and deliberately confessed by him. If the evidence establishing the guilt of the defendant be of such a nature as can not reasonably be questioned, such would not constitute reversible error."

Motion for rehearing is overruled.

Overruled.