Joe Lewis v. The State, 29 Tex. Ct. App. 201

WILLSON, Judge. This conviction is for murder in the first degree and the death penalty is assessed. Deceased was the mother-in-law of the defendant, and was killed with a razor.

Over objection of the defendant the State proved by Doctors Hudson and Talley that within from a half hour to one hour and a half after deceased had been wounded she stated to them that “Joe Lewis had come up behind her while she was at the wash tub, ran his hand under her arm, pulled her backward, and cut her nearly in two.” The trial judge explains the admission of this evidence as follows: “The testimony shows the deceased to have been ah ignorant negro woman, and that between the infliction of the wound and her statement to the doctors she had not spoken except in a scream or moan caused presumably from pain; and I believe the circumstances surrounding this ignorant negro woman utterly preclude the idea of deliberate design, but on the contrary was as voluntary and spontaneous as if uttered when she fell under the blow.

The evidence was not offered or admitted as dying declarations, but as part of the res gestee.” We agree with the trial judge that the evidence was res gestee and admissible. In order to constitute declarations a part of the res gestee it is not necessary that they were precisely coincident in point of time with the principal fact. If they sprang out of the principal fact, tend to explain it, were voluntary and spontaneous, and made at a time so near it as to preclude the idea of deliberate design, they may be regarded as contemporaneous, and are admissible in evidence. Foster v. The State, 8 Texas Ct.

App., 248; Tooney v. The State, Id., 452; McInturf v. The State, 20 Texas Ct. App., 335; Powers v. The State, 23 Texas Ct. App., 42; Irby v. The State, 25 Texas Ct. App., 203. We think the declarations made by the deceased and admitted in evidence came within the above stated rule, considering the circumstances under which they were made, which circumstances exclude the conclusion that they might have been made with deliberate design or were fabricated by the deceased.

Anderson, a witness for the State, testified about a conversation he had with the defendant after the homicide, which conversation took place in Laredo, Texas. He testified that the defendant told him in said conversation that he killed the deceased, and in detailing this conversation the witness further stated that defendant said that he wanted to kill Mr. Kelley and others at Belton who had interfered with him, etc. The statements made by the defendant as to other persons than the deceased were objected to by his counsel upon the ground that they were irrelevant..

The objection was overruled and a bill of exception reserved, which, although not as full and specific as it should be, will be considered. We think the testimony objected to was relevant and admissible. It was relevant to the issue of express malice. It tended to show that the defendant's enmity towards the deceased was so intense that it embraced her friends.

He was speaking about the homicide, and his statements with reference to the other persons whom he desired to kill showed that such desire arose from the friendship of those parties to the deceased, and that it was because of his malice toward her that he entertained malice toward them. This, we think, is a fair inference from the conversation as detailed by the witness Anderson. Statements made by a slayer before, at the time of, and even after the homicide, are often pertinent evidence to show express malice. Duebbe v. The State, 1 Texas Ct. App., 159; Garza v. The State, 11 Texas Ct. App., 345; McKinney v.

The State, 8 Texas Ct. App., 626. We are clearly of the opinion that the court did not err in admitting the testimony objected to. See also Hart v. The State, 15 Texas Ct. App., 202. As to the remarks of prosecuting counsel excepted to by the defendant, we see nothing improper in those made by the county attorney. Those made by Judge Kirk were not unexceptionable, but in view of the evidence in the case, could not, we think, have influenced the verdict..

Upon the evidence in the case the verdict could not reasonably have been other than guilty of murder in the first degree, and the murder was of a character so brutal, so fiendish and cruel, that the punishment of death, the highest prescribed by the law, is fully warranted. There is no error for which the conviction should be disturbed, and the judgment is affirmed. Affirmed, Hurt, J., absent,