Wash Washington v. The State, 19 Tex. Ct. App. 521

Hubt, Judge. This is a conviction for murder of the first degree* the punishment fixed by the verdict of the jury being death. It is insisted that the court below erred in admitting in evidence, over objection of the defendant, a conversation between the deceased and the witness Jesse Dupree, as follows: “'He (witness) was at Jane Clarkson’s house on the evening deceased was killed, and that deceased came by said house on his way home from his (deceased’

s) cow pen, and a short ■while before he was killed, and told witness that the defendant, Wash Washington, wanted him, witness, to come to his (defendant’

s) house on the next morning and write him, defendant, a letter; and in reply to said message from defendant, as above related, witness replied that he could not go on the next morning, but would go on that night; whereupon deceased replied that it was no use to go on that night, as he, deceased, had seen defendant going down the slough with. a shot-gun over his shoulder.” The objection urged to this testimony, as appears from the bill of exceptions, is that the same was hearsay, irrelevant and not a part of the res gestee.

Another witness for the State, Jane Clarkson, testified to substantially the same facts, over objection, and the question as to the admissibility and materiality of this evidence is here presented by bills of exceptions duly saved.

It was in evidence that, a short time after this conversation occurred, a shot was fired in the direction of the slough from the witness Jane Clarkson’s house; that when the witnesses went to the place where the shot was fired they found the deceased lying just in the edge of the water of the slough, on the road between the house of Jane Clarkson and the house where deceased lived; that deceased was shot with ten or more buck shot.

It will be seen from this statement that the evidence objected to tended to show that the defendant was at or near the place of the homicide, and that he had the opportunity and the means of killing the deceased at the time and in the manner it is shown to have occurred. To be more specific, that part of the conversation objected to is what deceased said about defendant being seen by him going down the slough with a shot-gun. The distance from Clarkson’s house to the point on the slough at which deceased was killed is about one hundred yards.

Immediately after the conversation between the witnesses and deceased, which took place at Jane Clarkson’s house, he, deceased, left, going in the direction of the slough on horseback. This conversation must have occurred within three or four minutes of the time of the homicide, and, as we have seen, within about one hundred yards of the place of the killing. Was the supposed objectionable evidence res gestmf If so, it was admissible. If not, under the facts of this case, conceding the testimony to be hearsay and tending to criminate, must the judgment be reversed because of its reception? .

Was the evidence res gestee? We think so. And believing the evidence admissible because constituting what is known as part of the res gestos, there was no error in its admission. From the third bill of exceptions it appears that the State proved, over the objection of defendant, that Jesse Dupree, Lloyd Brown and Albert Clarkson heard the gun fire and the outcry of deceased, and that they ran to him immediately after the gun fired.

Upon reaching deceased they asked him who shot him, whereupon deceased replied, “Wash Washington shot me.” Defendant objected because this answer of deceased came within the rule of dying declarations, and that the State had laid no predicate for the reception of dying declarations. Beyond any sort of question, this answer of deceased was strictly competent as res gestes. We have considered all the bills of exceptions presented in the record, and find no error for which the judgment should be reversed. In the motion for new trial, it is made to appear that W. P.

Marlin, deputy sheriff, and who was a witness for the State, was allowed to take charge of the jury during their deliberations the entire time of the trial. In this we find nothing whatever casting suspicion upon the verdict of the jury. It is also urged in the motion for new trial that the verdict of the jury is not supported by the evidence. If it be possible to prove the guilt of a party charged with crime, the guilt of this appellant is established.

In addition to the conclusive circumstances, independent of his confessions, if a doubt could remain, this doubt is removed by his deliberate and oft repeated confessions, made when he was perfectly free, physically and mentally. The facts show, beyond any possible doubt, that defendant not only killed Willis Durden, but that the homicide was committed with a sedate, deliberate mind and formed design.

Appellant armed himself with a shot-gun, ensconced himself near the slough, and when Willis Durden approached he deliberately and coolly shot him down,— ran from the scene of this terrible assassination, and within a few hours after the homicide, with equal coolness and deliberation, confessed his crime to a number of persons and left the country. Under such a state of facts the jury awarded the highest punishment. In this we think they did right. We find no error in the judgment and it is therefore affirmed. Affirmed. [Opinion delivered December 9, 1885.]