Hopkins v. State , 43 Tex. Crim. 261 ( 1901 )

Appellant was convicted of murder in the second degree, and his punishment assessed at twenty years confinement in the penitentiary; hence this appeal.

This is the second appeal from a conviction in this case. For former appeal, see 53 S.W. Rep., 619. After the case was remanded, it appears the venue was changed from Wharton to Victoria County. On the trial the State was permitted to prove the dying declarations of deceased, Geo. T. Elliott, by Mrs. Cora Cabiness. It is not necessary to discuss the predicate for this introduction, as there is no question as to its sufficiency. Appellant, however, insisted that, inasmuch as the dying declarations of deceased were reduced to writing by Dr. Seymour and read over to deceased and signed by him, the dying declarations of deceased, as proved by Mrs. Cabiness, could not be introduced as evidence. In this connection it was shown that said written declaration was attached to the record on the former appeal, and no effort was made by the State to procure the same from the clerk of the Court of Criminal Appeals, in order to be used as evidence on the trial of the case. It may be conceded that sufficient diligence was not used by the State to secure this evidence. However, the court explains that the former opinion in said case contained a full copy of the dying declaration of deceased, as testified to by Dr. Seymour; and this was offered to be used as evidence, but defendant objected to the introduction of said copy as contained in the opinion of the Court of Criminal Appeals in the case. It was further shown in the bill that the dying declaration of deceased as proved by Mrs. Cabiness was not the particular dying declaration as contained in the writing by Dr. Seymour; that deceased made several declarations to various persons who came in before he died, which were in substance the same. She testified that she did not read the dying declaration reduced to writing by Dr. Seymour; that as she came into the room she saw deceased sign the same. So the question here presented is, was the declaration testified to by Mrs. Cabiness admissible in evidence, it having been shown that deceased made a dying declaration in the presence of Dr. Seymour, which was reduced to writing? The authorities hold that, where the particular declaration about which the witness proposes to testify was reduced to writing, the writing constitutes the best evidence of the declaration, and parol evidence is not admissible. However, if more than one declaration was made by deceased, — that is, if he made dying declarations concerning the homicide at different times, and one of these declarations was reduced to writing, — it would furnish no reason why a parol declaration, made under the sense of impending death at a different time, would not be admissible. We accordingly hold that, under this rule, the testimony of Mrs. Cabiness as to dying declarations of deceased was admissible. Krebs v. State, 8 Texas Crim. App., 1; Hines v. Commonwealth (Ky.), 13 S.W. Rep., 446; Rex v. Reafon, 1 Strange, 499.

By another bill of exceptions appellant complains of the action of the court in not stopping the case, and granting him a continuance thereof, because he was surprised at the testimony of Mrs. Cora Cabiness as to the dying declarations of deceased, and he desired to procure the dying declaration as reduced to writing by Dr. Seymour, evidently for the purpose of contradicting her; the principal point of contradiction being that Mrs. Cabiness did not state that declarant stated he made a movement to go towards Jim Hopkins when shot, and she denied that the written statement contained any such clause, and it was proposed by the written statement to show that the declarant did make such statement. It is a sufficient answer to this proposition to state that appellant had the opportunity to use the written declaration of the declarant as testified by Dr. Seymour, contained in the copy of the opinion, evidently certified to the court with the mandate from this court. This character of evidence was admissible (see article 2306, Revised Statutes); but was excluded at the instance of appellant himself. If appellant desired to contradict Mrs. Cabiness on this point, and the written statement of the declarant as testified to by Dr. Seymour would serve this purpose, he had the opportunity to use said evidence from the opinion of the court, and, not having availed himself of this, it does not occur to us that he can now complain. It is further shown by the court, in explanation of this bill, that Dr. Seymour testified he did not take down all that was said, but the substance merely, as he understood it, leaving out what he did not consider material, and that the witness Mrs. Cabiness stated that she did not read the written statement nor did she hear it read. We do not think the court committed error, under the circumstances, in refusing to postpone the case. We would, moreover, observe, as explained by the court, that, if appellant really desired the original written statement, the same facility was afforded him to have it in court as was afforded the State, and that he was lacking in diligence in not securing the original, if he desired it.

We have carefully examined the record, and in our opinion the evidence fully sustains the verdict, and the judgment is affirmed.

Affirmed.

[Note. — Appellant's motion for rehearing was overruled without a written opinion. — Reporter.]