Sanders v. State , 132 Tex. Crim. 466 ( 1937 )

Appellant was convicted of the offense of murder, and his punishment was assessed at confinement in the state penitentiary for a term of sixteen years.

The testimony adduced by the State shows that the deceased J. D. Emert was employed by Henry Snodgrass, who owned and operated a cotton gin, as a press hand. On the day of the alleged homicide the appellant, after having armed himself with a pistol, in company with his son carried a load of seed cotton to the gin. After the cotton had been ginned and when the deceased was engaged in tying the bale appellant went to the press and shot the deceased three times; then hurriedly walked down under the press where a twenty-five calibre pistol was subsequently found. It was shown by the State that said pistol or one exactly like it was seen in the possession of appellant's son sometime prior to the day of the homicide. It was also shown that appellant on several occasions made threats to kill the deceased and at one time offered to pay a party the sum of one hundred dollars to kill the deceased. Appellant's testimony raised the issue of self-defense. He also proved by his daughter that about four or five days prior to the homicide the deceased insulted her. Appellant testified, however, that he did not go to the press to see the deceased about the alleged insult to his daughter.

Appellant urged a number of objections to the court's charge which the court overruled. He also requested a great number of special instructions, all of which were refused except one. A careful examination of the court's charge in the light of the objections, together with the requested special charge given, leads us to the conclusion that the charge was a full and fair application of the law to the issues raised by the testimony.

Bills of exception numbers one, two, and three complaining of the admission of certain testimony are without merit and are, therefore, overruled.

Bills of exception numbers four and five reflect the following occurrence. The district attorney on cross-examination of defendant propounded to him the following questions: "You testified before at the previous trial that that was the first time you ever carried a gun?" To which he replied, "To the gin." Q. "Anywhere?" "You had been carrying that gun all of the time before that?" To which he replied, "No sir." Q. "You remember the shooting scrape you had with Elwin Corn, don't you?" — to which appellant objected on the ground that it was an attempt on the part of the State to put his general reputation in issue. The court sustained the objection and at the request of appellant withdrew the same from the jury. Appellant contends, however, that the court could not effectively withdraw from the jury the prejudicial effect thereof. It appears from the bill that appellant had theretofore testified that he had never carried the pistol prior to the time of the alleged homicide. The State's object was to discredit his testimony by directing his attention to the incident mentioned with a view of having him admit that on the occasion inquired about he did have a pistol. We are of the opinion that the bill fails to show any error.

Bill of exception number six reflects the following occurrence. The State placed upon the witness stand one Gates Inman and propounded to him the following question: "What did Sanders say to you with reference to some other trouble?" — to which appellant objected on the ground that it had nothing to do with the issues in the case. The objection was overruled and the witness answered: "Well he said he and the damn Stocks family, the way I understood it, had been having some misunderstanding." The bill of exception is insufficient within and of itself to disclose any error in that it fails to set out sufficient facts and circumstances surrounding the matters presented as being objectionable to enable this court to properly appraise the bill. This court cannot tell from the bill of exception whether or not the testimony adduced and complained of tended to elucidate any issue; neither is it shown that appellant did not first inject the matter into the case. Hence it is obvious that the bill of exception fails to meet the requirements of art. 667, C. C. P., 1925, and the rule announced in the following cases: Wharton v. State, 117 Tex.Crim. Rep.; Starland v. State, 116 Tex.Crim. Rep.; Toms v. State, 116 Tex.Crim. Rep..

Bills of exception numbers seven and eight being in the same condition as bill number six, hereinabove discussed, are overruled for the same reason as there stated.

Bill of exception number nine complains of the testimony of Pauline Phillips who testified for the State that she was a graduate registered nurse employed at Dr. Barber's hospital at Winsboro; that she was so employed at the time Jim Emert was brought there for treatment; that while he was there being treated for gunshot wounds she nursed him until the time of his death; that the evening before he died he was conscious; that he said, "I think I am going to die, but I am not afraid to die. I am ready to die. I don't know why the man shot me. I don't know what he had against me." — to which appellant objected on the ground that it did not meet the requirements of the statute and did not show he was conscious of approaching death. The bill further shows that the above and foregoing statement was made by the deceased to the witness about four hours before he died. It is apparent from the testimony appearing in the bill that deceased was conscious of approaching death at the time he made the statement which brings it within the rule of a dying declaration. Hence the same was admissible. See Hunter v. State, 54 Tex. Crim. 224; Francis v. State, 170 S.W. 779; Sims v. State,36 Tex. Crim. 154; Crockett v. State, 45 Tex.Crim. Rep..

The testimony complained of in bills of exception numbers ten and eleven was admissible. The objection went more to the weight than to its admissibility.

Finding no reversible error in the record, the judgment of the trial court is affirmed.

Affirmed.

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.