Louis Benavides v. The State, 31 Tex. 579

Caldwell, J. —We have carefully reviewed the bills of exceptions and the evidence, and are of opinion that there is no error demanding a reversal of the judgment. The defendant was convicted of mnrder in the second degree, and sentenced to twenty years in the penitentiary. The only evidence to establish the guilt of defendant is the dying declarations of deceased and immediate flight and concealment of the prisoner.

The district attorney introduced Isadora Garcia to prove the dying declarations of deceased; to the introduction of which testimony counsel for the prisoner objected, on the ground that “ said testimony should be first addressed to the court.” The admissibility of “ dying declarations ” is now too firmly established to be called in question. At common law, when a person who expects to die from wounds inflicted, and is in constant expectation of dissolution, his declarations in relation to the circumstances of his injuries have been constantly received as competent evidence.

When every hope of this world is gone, when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth, a situation so solemn and awful is considered by the law as creating an obligation equal to that which is imposed by an oath administered in court. (Whart. Com. Law, 247.) Our statute, (Paschal’s Dig., Art. 3125,) in providing for the admission of dying declarations, lays down no new rule. It is simply in affirmance of the common-law rule.

The evidence is conclusive that the deceased at the time of making the declarations was conscious of approaching death, and had no hope of recovery; that the declarations were voluntarily made, and not responsive to interrogatories calculated to mislead; and that he was of sound mind. This is sufficient to admit the declarations. It does not clearly appear from the bill of exceptions whether the court, by a preliminary examination of the witnesses, ascertained the condition of the deceased before pronouncing his declarations admissible.

Correct practice, however, requires that the court should have done so; and, in the absence of evidence to the contrary, we must presume that the court discharged its duty in this behalf. It is in evidence that the defendant and his supposed accomplice fled immediately after inflicting the wounds from which the deceased died. “The guilty flee when no man pursueth” is a divine maxim, which has been incorporated in our system of jurisprudence. A strong presumption of guilt arises whenever a person accused of an offense attempts to escape or evade justice.

It is admissible for the prosecution to show that the prisoner attempted to escape, and, if no proper motive can be ascribed to the attempted flight, the presumption of guilt is greatly strengthened. (Wharf Crim. Law, 269.) In the case at bar, counsel for the prisoner made a feeble effort to account for the prisoner’s flight, but the jury were well warranted in discarding the evidence of the witness Weaver as totally unworthy of credit. This witness stated that the prisoner had been lurking about his house for some time previous to his arrest, but it was for the purpose of surrendering himself to the authorities.

This witness, Weaver, attended the deceased in his last moments, and must have known that the prisoner was accused of the murder. Why did he not give information of the fact? He does not inform us. This witness further testified, that when the deceased was in extremis he heard him say, in Spanish, “ To tengo la culpa, mata me, mata me.” (It is my fault, kill me, kill me.) These expressions were disconnected with any others. Ho explanation followed or preceded them. It is evident that they were fabricated to produce the impression that the deceased was inculpating himself.

This view is strengthened when it is considered that the witness professed to understand the language of the deceased, but could not render into English “Ayudarme de morir bien” — assist me to die well — the simplest words in the Spanish language. From the fabrication of this swift witness, who was intimate with the prisoner, arises another presumption of guilt, (Whart. Crim. Law,) which we doubt not was considered by the jury in making up their verdict. There is no error in the charge of the court of which the prisoner can complain.

The law defining murder in the first and second degrees is laid down with great liberality to the prisoner. The law of manslaughter was also given to the jury. This is assigned as error by the counsel for the prisoner. Surely a prisoner has no right to object when the minds of his triers are directed to a milder grade of the offense with which he is charged. There is not a scintilla of evidence, upon which a charge of manslaughter can be based, and it would be well if some of our district judges would be more guarded in their charges, and lay down the law applicable to the facts in evidence, no more.

Abstract law may mislead a jury, but the party benefited thereby' is estopped. The evidence fully sustains the verdict, and the judgment therein is Aeeibmed.