Walker v. State , 88 Tex. Crim. 389 ( 1920 )

It is again urged in motion for rehearing that the statement of Will Edwards admitted as a dying declaration was not competent. The matter is discussed at length in our former opinion, and we think correctly decided. If there was any doubt from the record as to the establishment of the required predicate for the admission of such statement, the jury were fully told in the charge to disregard such declaration and this has been held to be the proper practice.

In both our former opinions in this case, 206 S.W.R., and85 Tex. Crim. 482, 214 S.W.R., 331, attention was called to objectionable matters in the predicate and also the statement of the deceased and the present trial seems to indicate an effort to conform to our views so expressed.

We think that part of the alleged dying declaration which states that after a conversation with the woman Katie she and deceased went into a room and laid down on the bed was directly pertinent. The only motive for the killing relied on by the State was anger because of the intimacy between deceased and the woman Katie and this statement makes clear the situation of the parties when appellant came upon them, and rejects the reason relied upon as causing him to kill deceased.

That the woman Katie begged the appellant not to shoot again after he had fired the fatal shot; and that appellant with an oath told her to hush or he would kill her too, was a part of theres gestae, and admissible. Appellant's statement to the woman affected his mental attitude and her statement to him was a necessary predicate to understand why he used to her the language so attributed to him. Jeffries v. State, 9 Texas App., 603; Jennings v. State, 42 Tex.Crim. Rep..

Witness Webster testified that before deceased made the alleged dying declaration he said he thought he would die as a result of that gun-shot wound. In another part of the testimony of said witness he said deceased got worse before making said dying declaration and told witness he knew he was going to die. We think both statements of deceased were admissible as being his opinion upon the matter of his approaching dissolution. If a man believes he is going to die and under such belief make a statement in the nature of a dying declaration, the impulse to truth, and the restraint from falsehood resulting from such belief is received as a substitute for the oath ordinarily necessary. We know of no authority holding inadmissible the expression of deceased of his belief that he will die from the injury.

We think the charge of the trial court on manslaughter fair and just, that it gave to appellant the right of consideration by the jury of all that occurred in determining his state of mind when he shot. We find no error in the former opinion of this court and the motion for rehearing will be overruled.

Overruled.