Opinion
No. 18010.
Delivered February 19, 1936.
1. — Bill of Exception — Dying Declaration.
In prosecution for murder, bill of exception embracing defendant's objection to introduction in evidence of dying declaration on ground that no proper predicate had been laid, held not to reflect error where it embraced no statement showing that grounds of objection were true, or that it contained all the predicate upon which the declaration was admitted.
2. — Same.
Bill of exception to supposed error in admitting evidence of dying declaration must contain, and state that it does contain, all the predicate laid upon which the declaration was admitted, and must further also set out the declaration.
3. — Same.
Bill of exception to refusal to withdraw from jury's consideration dying declaration of deceased, held insufficient where nothing therein appeared in support of the ground upon which motion was predicated.
4. — Murder — Charge on Circumstantial Evidence.
In prosecution for murder, request for charge on circumstantial evidence held properly overruled, where deceased stated in his dying declaration that defendant shot him and witness testified that defendant stated to him that he shot deceased.
Appeal from the District Court of El Paso County. Tried below before the Hon. W. D. Howe, Judge.
Appeal from conviction for murder; penalty, confinement in penitentiary for twenty years.
Affirmed.
The opinion states the case.
Morris A. Galatzan and W. Joe Bryan, both of El Paso, for appellant.
Roy D. Jackson, District Attorney, of El Paso, and Lloyd W. Davidson, State's Attorney, of Austin, for the State.
The offense is murder; the punishment, confinement in the penitentiary for twenty years.
It was charged in the indictment, in substance, that appellant, with malice aforethought, killed Shirley Thompson by shooting him with a gun.
Appellant and deceased were co-workers at a cotton mill located in El Paso, Texas, and occupied rooms in the same apartment building. On the afternoon of August 25, 1934, appellant, in company with Mrs. Billie Jordan Reading, met the deceased and the deceased's wife at a place where beer was sold. An altercation ensued and appellant left in an angry mood and went in the direction of his room. Shortly after appellant left, deceased went home. In a few minutes after he reached home appellant shot him. He later died in a hospital.
It is shown in bill of exception No. 1 that the State proved by the wife of the deceased that he stated to her in the hospital that he was going to die, and asked her why appellant shot him. Further he said that appellant did not have any right to shoot him. The bill embraces appellant's objection to the testimony on the ground that a proper predicate had not been laid for its receipt as a dying declaration. The bill of exception embraces no statements showing that the grounds of, objection were true. Nor is it shown in the bill that it contains all of the predicate upon which the declaration was admitted. Under the circumstances, error is not reflected. We quote from Hill v. State, 225 S.W. 521, as follows: "A bill of exception will be held insufficient when taken to supposed error in admitting evidence of a dying declaration without laying the proper predicate, and, to be sufficient, it must contain and state that it does contain all the predicate laid upon which the declaration was admitted, and must further also set out the declaration. Highsmith v. State, 41 Tex. Crim. 37 ( 50 S.W. 723, 51 S.W. 919); Edens v. State, 41 Tex. Crim. 523 ( 55 S.W. 815); Hopkins v. State, (Texas Cr. App.,) 53 S.W. 621; Gutirrez v. State, (Texas Cr. App.,) 59 S.W. 274; Medina v. State, 43 Tex.Crim. Rep. ( 63 S.W. 331); Francis v. State, 75 Tex.Crim. Rep., 170 S.W. 782."
It is recited in bill of exception No. 2 that before the court's charge was read to the jury appellant requested the court to withdraw from the jury's consideration the dying declaration on the ground that it was not shown in the predicate that deceased was conscious of impending death. Nothing appears in the bill of exception in support of the ground upon which the motion was predicated. Manifestly said bill is insufficient.
Appellant's request for a charge on circumstantial evidence was properly overruled. Not only did deceased state in his dying declaration that appellant shot him, but the record reflects testimony of a witness to the effect that appellant stated to him that he shot deceased.
The judgment 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.