In finding the testimony to be admissible, the Court noted: "In Porter v. State, 86 Tex.Crim. R., 215 S.W. 201, the mother of the deceased testified that deceased said at 9:00 P.M. that she was going to meet defendant at a particular location, and that defendant was going to take her to Nolanville so she could board a train for San Angelo. The deceased departed the mother's home at about 11:00 P.M., and her body was found nine days later in a river near the point of her rendezvous with the defendant. With respect to the mother's testimony, this Court said:
Appellant's sixth contention alleges harm resulted from testimony by the wife of the deceased, T. E. Smith, in which she described a conversation she had with Smith on the morning of his death regarding checks written by the appellant on Smith's bank account, and that Smith left for Freeport to see appellant about the checks, and she never saw her husband alive after he left. In Porter v. State, 86 Tex.Cr.R. 23, 215 S.W. 201, the mother of the deceased testified that deceased said at 9:00 P.M. that she was going to meet defendant at a particular location, and that defendant was going to take her to Nolanville so she could board a train for San Angelo.
s, tending to show ill will and malice on the part of defendant toward deceased. Commonwealth v. Holmes, 157 Mass. 233, 32 N.E. 6, 34 Am.St.Rep. 270; Commonwealth v. Ryan, 134 Mass. 223; Hall v. State, 208 Ala. 199, 94 So. 59; Jones v. State, 181 Ala. 63, 61 So. 434; Humber v. State, 19 Ala. App. 451, 99 So. 68; Myers v. State, 62 Ala. 599; Wilson v. State, 128 Ala. 17, 29 So. 569; Shelton v. State, 217 Ala. 465, 117 So. 8; Pulliam v. State, 88 Ala. 1, 6 So. 839; Pate v. State, 94 Ala. 14, 10 So. 665; Griffin v. State, 90 Ala. 596, 8 So. 670. The defendant having offered testimony of acts and declarations on the part of deceased tending to show a weariness of life and readiness to end it, the door was opened to the State to offer rebuttal evidence tending to show a different state of mind. Commonwealth v. Trefethen, 157 Mass. 180, 31 N.E. 961, 24 L.R.A. 235; Shepard v. United States, 290 U.S. 96, 54 S.Ct. 22, 78 L.Ed. 196; Nordan v. State, 143 Ala. 13, 39 So. 406; 83 A.L.R. 434, note; Porter v. State, 86 Tex.Cr.R. 23, 215 S.W. 201; State v. Baldwin, 36 Kan. 1, 12 P. 318; People v. Selby, 198 Cal. 426, 245 P. 426; State v. Lentz, 45 Minn. 177, 47 N.W. 720; 40 C.J.S., Homicide, § 217, p. 1130. Pictures of the scene of the homicide are always admissible.
The testimony of witnesses other than appellant tending to show the truth of his defensive theory would seem admissible. Such testimony was held admissible in behalf of the state in Porter v. State, 86 Tex. Crim. 23. Appeal from the District Court of Falls County. Tried below before the Hon. E. M. Dodson, Judge.
It has many times been held that the addition of the word to those of the Constitution would not adversely affect the validity of the indictment. See Porter v. State, 86 Tex. Crim. 23, and other cases cited. Also see Vernon's Ann. Const. of Texas, 1925, Vol. 1, p. 372. 5. — Same — Indictment — Held Sufficient.
In fact, Texas precedent allows state-of-mind declarations to be admitted to prove the joint conduct of the declarant and another. Porter v. State, 86 Tex.Crim. 23, 215 S.W. 201, 210-11 (1919) (Morrow, J., concurring). Rule 803(3) should, therefore, be interpreted as permitting this practice.
On page 468 of 223 S.W. the rule is stated as follows: "Declarations of the deceased, showing her state of mind toward the appellant, were admissible. Wigmore on Evidence, vol. 1, § 102; Commonwealth v. Howard, 205 Mass. 128, 91 N.E. 397; Porter v. State [ 86 Tex.Crim. 23], 215 S.W. [201] 211. The scope of such evidence would be limited to the purpose stated, and could not be legitimately used as proof of the facts declared.
This constitutional requirement is a matter of substance rather than of form. Cox v. State, 8 Tex. App. 254[ 8 Tex.Crim. 254] (1880). Although minor variations in the wording of the required constitutional and statutory language, such as adding the word "the" before the word "authority", have been held to be immaterial, Morris v. State, 115 Tex.Crim. R., 28 S.W.2d 155 (1930); Banks v. State, 107 Tex.Crim. R., 296 S.W. 563 (1927); Porter v. State, 86 Tex.Crim. R., 215 S.W. 201 (1919); Moss v. State, 60 Tex.Crim. R., 131 S.W. 1088 (1910); Weaver v. State, 76 S.W. 564 (Tex.Cr.App. 1903), the complete omission of the required constitutional statutory wording in the present case is controlled by long-standing precedent. For the reason stated the relief is granted. It is so ordered.
Renfro, the owner of the tourist courts). In Porter v. State, 86 Tex.Cr.R. 23, 215 S.W. 201, this Court held statements made by deceased as she prepared to leave admissible as res gestae and explanatory of her acts. In Williams v. State, 112 Tex.Cr.R. 482, 17 S.W.2d 1057, this Court reversed a conviction because the trial court did not permit appellant's father and brother to testify that when appellant left home on the morning of his arrest he said he was going to the Lewis home.
Facts to negative suicide are admissible in evidence. Commonwealth v. Howard, 205 Mass. 128, 91 N.E. 397; Commonwealth v. Trefethen, 157 Mass. 180, 31 N.E. 961, 24 L.R.A. 235; Porter v. State, 86 Tex.Crim. R., 215 S.W. 201; State v. Baldwin, 36 Kan. 1, 12 P. 318. In this case it appears the deceased drew $1900 out of the joint account at Riverton, and placed it in her personal account on the day of the homicide.