Hunter v. State , 59 Tex. Crim. 439 ( 1910 )

In the original opinion in this case we considered and treated practically every question relied upon for a reversal of the judgment of conviction. This opinion was prepared after a most careful examination of the record as well as a most careful consideration of the questions presented. As to how correctly the matters were decided by us, must, of course, in the nature of things, be a matter of opinion. The motion for rehearing filed challenges the correctness of most of the questions at issue. We are content to rest the case and the decision of this court upon our original opinion except upon two questions, which are urged with such earnestness and presented with so much ability that we feel that some further treatment of them is due alike to ourselves, to counsel and to the profession.

1. It is strongly urged that the court was in error in admitting in evidence proof of the fact that for some weeks before the fatal meeting the elder Van Dorn had been carrying with him wherever he went some of his smaller children, which had not been his custom before that. It is urged that this was inadmissible for the reason that the acts and conduct evidencing the secret and undisclosed intentions and purposes of Van Dorn unknown to appellant were not receivable in evidence against him. There is no doubt that the rule is well settled that where upon a trial for murder the acts, declarations and statements of the deceased in respect to or which evidence his peaceable intentions and motives are not admissible where such facts are unknown to defendant. The rule is thus well stated in the case of Johnson v. State, 22 Texas Crim. App., 206: "It is a maxim of the law that a man is only bound so far as matters reasonably appear to him; he can not be bound by motives locked up and hidden in the breasts of others. Deceased's undisclosed and undiscovered motive in going to Caddo Mills was not a material issue, and could throw no light whatever upon the guilt or innocence of defendant, whose motives alone were the important issue to be tried." See also Brumley v. State, 21 Texas Crim. App., 222; Pratt v. State,53 Tex. Crim. 281. And the rule is also true, we think, that acts and conduct of the decedent of a peaceable character and from which the jury would draw the inference that he had no purpose or disposition to attack his adversary, where his conduct would seem at variance from such purpose, would not be admissible where the motives, reasons and inducements which prompted such conduct are unknown to the person sought to be affected thereby. On the general proposition submitted by appellant, we think there can be no difference among lawyers. The matter is so thoroughly settled in this State as not to admit of doubt. We think, however, that as applied to this case, that this rule can have no application, and that same can not be made available to appellant. In the first place, the bill of exception does not contain any objection of this sort. When this proof was offered, it was objected to for the following reasons: "That same was immaterial, irrelevant, prejudicial and did not tend to prove any material issuable fact in the case." It will thus be noticed that the testimony was not objected to on the ground now urged, nor is it recited or found to be true as a fact that the habit of deceased with reference to carrying his children with him was not known to appellant at and before the fatal meeting. It is clear, therefore, and manifest that under the rules governing this court, the matter now urged is not available. This question of practice was thoroughly considered, and the authorities cited in the case of Douglas v. State, 124 S.W. Rep., 933, where it was held that the mere statement of a ground of objection in a bill of exception is not a certificate of the judge that the fact stated is true, and that a bill of exception can not be aided either by a statement in reply to motion for new trial or by the statement of facts. We think, however, that in any event, if the matter was presented so as to demand and require a review of the question, that there was no error committed by the trial court. If we look to the evidence, the facts are such as to raise the issue and the statement of facts contains strong testimony, the fair purport and effect of which is to visit appellant with notice of this change of habit and with the fact that the children of deceased for some time had been going with him wherever he went. It will not be questioned that if this had been proven by the direct testimony of some witness, bringing home direct knowledge thereof to appellant, that this would render the testimony admissible, although the fact may have been denied by him; nor is it seen why the same matter could not as well have been proven by circumstances pertinently showing the fact. There was no charge requesting that the evidence be disregarded in the event the jury should believe and find from the evidence that the fact in question was not known to appellant.

2. The next question presented is with reference to the dying declaration admitted in evidence. The proposition, as we understand, relied upon by appellant is to the effect that inasmuch as there was, as claimed, a written dying declaration, and since it was in the possession of the State, that it was not competent for the prosecution to offer in evidence the parol dying declaration without accounting for and offering the written dying declaration. As we understand, it is not necessary in this case to decide this question, and if it be conceded the rule is true as contended for by appellant, it can have no application here. This was not, as we believe, under any of the decisions or any authority cited by appellant, in any legal sense a written dying declaration. This whole matter arose on appellant's motion for new trial, and the circumstances under which the purported written declaration was taken appears in the affidavit of J.C. Kuykendall. This affidavit is to this effect:

"My name is J.C. Kuykendall. I am 77 years of age and have resided in Gonzales County, Texas, my present place of residence, for thirty-six years. I know the Van Dorn and Hunter families. On the evening of August 21, 1906, I was sent for to go to the home of D.M. Van Dorn. I arrived there at about 8 o'clock p.m. About 10 o'clock, or a little after in the night, Ollie Van Dorn made a statement to me relating to the shooting of his father, D.M. Van Dorn and himself. I reduced his statement to writing and the subject of death was not mentioned or alluded to by either Ollie Van Dorn or myself. I asked him questions as to how the shooting took place and who did it. At that time I was justice of the peace of Precinct No. 5 of Gonzales County, Texas, in which precinct the tragedy took place."

It will thus be seen that according to the statement of Mr. Kuykendall the statement, when reduced to writing, was not read to decedent, Ollie Van Dorn, nor did he affirm in any way the correctness thereof. Touching such a statement the rule is thus well stated in 4 Encyclopedia of Evidence, p. 988:

"Where declarations are reduced to writing in behalf of one who is dying, they are not admissible in evidence unless it is made to appear that he fully understood and assented to them, and, as a general rule, it should be proved that the declarations after being reduced to writing were read over to the declarant and approved by him. Where the declarations have been reduced to writing, so much of them as were not made and assented to by the declarant should not be received in evidence, but if the substance of the declaration as made by the declarant is written down and is assented to by the declarant, this will be sufficient.

"The formal parts of a dying declaration may be drawn by the officer out of the declarant's presence, and if it appears that after the declaration had been fully prepared the declarant assented to it, the declaration will be admissible in its entirety.

"The minute or memorandum of dying declarations is not admissible in evidence unless it was signed by the declarant or by someone in his behalf, but where written declarations are not signed by the declarant, they may, nevertheless, be proved by parol, and a witness who heard such declarations may use the writing for the purpose of refreshing his memory."

There is, as we believe, no case in the books — there certainly is no well considered authority which holds that a written instrument not signed by a decedent nor read over to him, nor affirmed by him to be correct, has ever been held to be receivable or to be treated as a written instrument, nor do the authorities so hold. This question in a very early day came before the Supreme Court of Pennsylvania in the case of Com. v. Stoops, Addison's Reports, 381. In that case Stoops had been indicted for the murder of his wife. Her deposition taken in writing by a magistrate about five days after the injuries and signed by him, was offered in evidence. It was objected to for several reasons, among others, on the ground that the deposition was not signed by the deponent and it was therefore imperfect and inadmissible. Discussing the matter the court say:

"The objection, that the deposition is not signed seems to rest on cases of examinations under certain acts of parliament, or of unfinished examinations. But if the declarations of the dying person had not been written, nor sworn to, would they not have been admissible?

"In the case of the King v. Reason and Franter, the dying declarations of Mr. Luttrel, though not on oath, were given in evidence by a witness who heard them. And it was held that a paper on which his declarations on oath were written by the same witness, who was not a magistrate, though not signed by Mr. Luttrel, or by the magistrate who administered the oath, would have been better evidence than the memory of the witness. In Woodcock's case the dying declarations of a wife murdered by her husband, taken on oath, and reduced to writing by a magistrate, and signed by him, with her mark made on the paper in approbation of its contents, were admitted in evidence on an indictment of murder against the husband; and on this testimony he was convicted and executed. This case was tried before judges of great learning and talents. Nor does it seem absolutely necessary for the competency of such evidence that such declarations should be made under an immediate apprehension of death, though that be one great ground of their competence and credit.

"We will admit the testimony; but the point may be reserved."

In the case of Green v. State, 43 Fla. 552, 30 S.E. 798, a statement was offered in evidence made by one Lee, which was authenticated by R.E. Pate, a justice of the peace, and which contains recitals to the effect that Lee was of sound mind and believed he was going to die, and in this state of mind made a dying declaration, which is the subject of inquiry, the details of which then follow. This was objected to on the ground that it did not show deceased to be conscious at the time that his death was imminent, and that he entertained no hope of recovery, and also that the same was not signed by deceased or witnessed. Discussing this matter the court uses this language:

"We are of the opinion that the court erred in admitting in evidence the writing set out above. No testimony was introduced on the subject of whether the deceased thought death imminent and was without hope of recovery at the time the alleged statement was made by him, but the writing was introduced as independent evidence. It was not signed by the deceased, nor is it shown that it was read to and assented to by him as being correct. At most, it is the bare statement in writing of a person styling himself a justice of the peace that the deceased made the statement set out in the writing. The justice signing the paper was not produced, and gave no testimony in reference to any statement made by the deceased. He asserts, under his hand and seal, that such statement was made before him; but there is no statutory authority for justices of the peace to so certify dying declarations, and the certificate in this case is not entitled to be considered as proof of the facts attempted to be certified. State v. Fraunburg, 40 Iowa 555; 1 Greenl. Ev. (16th ed., by Wigmore), sec. 161. The ruling admitting this paper in evidence was clearly erroneous, and purporting, as it does, to come from an official source, had greater force in impressing the minds of the jury."

Another case cited by appellant in his motion is that of People v. Callaghan, 4 Utah 49. In that case a dying declaration was offered which was signed by three persons. It is objected to, among other grounds, because it was a written statement of others not signed by deceased, and the real words given by deceased were not introduced or offered. In that case it appeared that the statement, after being written out, was read to the person making same before being signed by a witness, and that the decedent was at the time so feeble he could not sign his name to the paper. In this connection the court say: "The writing was properly admitted in evidence. There can be no question but that the declarations were made under the present apprehension of impending death, and were within the rule that, to render such declarations admissible, they must be made in articulo mortis.

"In the enfeebled state in which the deceased then was, and the difficulty in obtaining answers, there was no ground for excluding the declarations, because they were answers to leading questions.

"Where such declarations are taken down in writing, at the time they are uttered, although not signed by the deceased, being more reliable and accurate than the memory of most men, they should be produced and read at the trial."

This case probably goes as far as any case that can be found to sustain appellant's contention, but this language, it must be remembered, was in respect to a case where the paper before being signed was read over to the person making same. It further appears that before making the statement the decedent had been sworn to state the truth, and further, that at the time of the declaration his hand and arm were bandaged and that he could not for that reason sign the paper, but that he knew he was making a dying declaration to be used as evidence.

The other case cited is that of State v. Sullivan, 41 Iowa 142 . That case seems directly to support our position. The facts of the case are not given at any length, so that we quote entire that paragraph of the opinion discussing this matter:

"Two witnesses testified to the dying declarations of deceased, and one of them, it was shown, reduced the declarations to writing, but they were not read to nor signed by the deceased. It is, as we understand counsel, claimed that the testimony of the witnesses should not have been received for the reason that the absence of the writing was not accounted for. This would have been correct if the writing had been signed by deceased, or probably read to and pronounced by him correct. It was, however, a mere memorandum made by the witness. See State v. Tweedy, 11 Iowa 350."

In the case of Phillips v. State, 50 Tex.Crim. Rep., 94 S.W. Rep., 1051, Judge Davidson uses this language: "If declarant had signed the document this question would have been absolutely at rest and it would have been necessary to introduce it. If he did not sign it, it seems from the authorities it was not necessary to introduce the written statement, and that oral testimony was sufficient." That Judge Davidson's statement under the facts of the case then in hand is correct we have no doubt. As a general proposition, it may be that the doctrine is rather too broadly stated. However, as applied to the facts here, we have no sort of doubt that the testimony as to dying declaration was admissible under any rule ever adopted by this court or under any of the decisions cited and relied upon by appellant.

3. It is stated in motion for rehearing that there are in the record a number of errors complained of which, "if taken alone, would not be sufficient to warrant a reversal of this case, but if taken as a whole and in connection with the many other errors which may seem slight to this court, constitute one great and flagrant error for which this court should reverse this case and direct that defendant have a fair and impartial trial upon legal and competent evidence and not upon such evidence as violates the well established rule that has been laid down by our courts for our guidance in defending the rights of our fellowmen." In this case, as in many of the cases that reach us, where litigants are defended by able and zealous counsel, and where the prosecution is conducted with equal zeal and ability, we have an illustration of the irrepressible conflict between contending forces, one of which magnifies into injustice every passing act of the trial court, not having the sanction of direct authority, and the other of which minimizes confessed departures from precedent as harmless error. The office of this court in holding a steady hand between these two conflicting forces is one not to be envied. We can only declare, after a careful study, our best judgment with little hope that at the time it will receive the approval of both parties, but when we have so examined the question carefully and impartially, and declare our best judgment upon these contentions, under the law, aided by reason and diligent investigation, we have done all that we can be expected to do. This much has been done in this case, and our best judgment is that there is no error in the proceedings of the court below of which appellant can complain, and that his motion for rehearing should be as it is hereby overruled.

Overruled.