Alfred White v. The State, 30 Tex. Ct. App. 652

WHITE, Presiding Judge. Appellant was convicted of murder in the first degree for the killing of Bufus Bashful, the penalty being assessed at death. Defendant’s first bill of exceptions complains of the ruling of the court in compelling him to exercise a peremptory challenge on the juror J. H. Young. The judge’s explanation of said bill shows, that when the impanelling of the jury was complete the defendant had not exhausted his peremptory challenges. This being the case, appellant has not been injured, and has no cause of complaint. Willson’s Crim. Stats., sec. 2293.

Defendant’s second bill of exceptions was reserved to the action of the court in admitting the witnesses Strange and McKiblin to testify to the dying declarations of the deceased. This second witness testified, that as soon as the gun fired he ran immediately to the place, and found the deceased suffering great pain and agony. McKiblin was a deputy sheriff. He said he was in a saloon. When he heard the gun fired, he stepped to the door and located the sound down at the house that Bufus Bashful had moved into that day. Dr.

Watson was with him, and he asked the doctor to go with him; that some one was hurt down there. They both ran down to the house and found deceased in a chair, and they put him upon the bed and examined his wounds, finding eleven bullet holes in his left side and arm. The doctor told him that he was bound to die, to which deceased replied, “Oh, yes, doctor, they have killed me.” Just then the deceased asked McKiblin to turn him over and do something to ease him. As the witness turned him over, deceased said, “They have killed me; catch ’em.” “I asked, ‘Catch who? Who shot you, Bufe?’ He said, ‘Mr.

Mason;” and he seemed not to finish the sentence, when witness interrupted, and said he was mistaken; that “Mr. Mason was with the doctor and I when the gun fired, and I know he did not do it.” He then said there were two or three of them; that it was Alfred White and Bob Cottrell; and Mr. Mason was into it, and knew all about it. “I asked Bufe, ‘Did you see them?’ He said he did, and thought they were standing on the inside of the fence.

He said he stepped or fell back into the house as soon as they shot.” This witness was at the house off and on until 2 o’ clock that night, and he had two or three conversations with the deceased.

He says: “Every time I talked to him he contended it was the parties named—Alfred White and Bob Cottrell—who shot him, and that Mason knew all about it. * * * it was in response to the question asked him, ‘Who shot you?’ that Bufe said who the parties were who shot him.” Defendant objected and excepted to this evidence as dying declarations, because it appeared that the declarations were not voluntarily made; that they were made through the persuasion of other persons, and were made in answer to interrogatories calculated to cause the deceased to make such statements; and because said declarations were inconsistent and untrue.

We are of opinion that the objections are not well taken. We think the predicate was sufficiently laid under the statute to admit the dying declarations. Code Crim. Proc., art. 748; Willson’s Crim. Stats., sec. 1045. The question, “Who shot you?” was certainly not a question that was calculated to draw his attention to any particular party, and this seems to be the only interrogatory that was propounded to the deceased. The mere fact that certain of the dying declarations were made in response to questions asked deceased does not take from them their voluntary and spontaneous character. Pierson v.

The State, 18 Texas Ct. App., 524. As to the objection that the declarations were inconsistent and untrue in so far as they embraced Mr. Mason as one of the parties who killed him, this fact would not of itself render the declarations incompetent and inadmissible, but would go rather to the credibility of the statement or declarations.

The learned trial judge in his explanation of this bill of exceptions states, that the construction that Bashful said Mason shot him is not a proper construction to be placed upon the language used by the deceased, because when he repeated his declarations afterward on one or more occasions he did not state that Mason had shot him, but that Alf White and Bob Cottrell shot him, and Mason was into it and knew all about it. This statement was repeated several times.

We are of opinion that the objection to the evidence as dying declarations is not maintainable, and we are further of opinion that the first statement made by the deceased after the party reached him was admissible as res gestee, as well as dying declarations. This was made in a few minutes, at the furthest, after the deceased was shot. See McInturf v. The State, 20 Texas Ct. App., 335, and authorities there cited; Willson’s Crim. Stats., sec. 1046; Testard v. The State, 26 Texas Ct. App., 260; Ex Parte Albitz, 29 Texas Ct. App., 128; Lewis v. The State, 28 Texas Ct. App., 140; Drake v. The State, 29 Texas Ct.

App., 265. Defendant’s third bill of exceptions shows, that after the defendant had testified as a witness in his own behalf on the examination in chief, counsel for the State asked said witness, the defendant, on cross-examination, if he had not sent a letter out to his son sewed up in his (witness’) drawers while he was confined in jail for this murder. Defendant’s counsel objected to the above question, on the ground that it was not proper to examine the witness, who was the defendant, in regard to any matter about which he had not testified on his examination in chief.

This objection was overruled by the court. In the case of McFadden, 28 Texas Court of Appeals, 241, it was held, quoting from The State v. Pfefferle: “Where a defendant in a criminal case takes the stand to testify in his own behalf he assumes the character of a witness, and is entitled to the same privileges, and is subject to the same treatment, and to be contradicted, discredited, or impeached in the same manner as any other witness. ’ ’ The State v. Pfefferle (Kans.), 12 Pac. Rep., 406; 9 Crim. Law Mag., 222; 4 Crim. Law Mag., 353; Clarke v. The State, 8 Crim. Law Mag., 19, 519; The State v.

Anderson (Mo.), 1 S. W. Rep., 135; Quintana v. The State, 29 Texas Ct. App., 401. The objection to this question was not well taken. The learned trial judge, in his explanation of this bill, says, that “the question was admitted for the sole purpose, as was distinctly stated to the jury, of being considered by them in passing upon the credibility of the defendant White.

The letter and its contents were carefully excluded from the jury, because written in jail.” Defendant’s fourth bill of exceptions complains of the charge of the court, in that it did not submit the law of murder in the second degree as an issue to be passed upon by the jury. The court did not err in declining or refusing to submit the law of murder in the second degree. There was no second degree in the murder perpetrated, as shown by the testimony in the case.

It was an assassination, committed by the perpetrator, who was lying in wait, and who under the cover of the darkness of night shot down his unsuspecting victim upon his own threshold, after having purposely made a noise on his premises, which caused him to come out upon his gallery. Caldwell v. The State, 28 Texas Ct. App., 566, and authorities cited.

Defendant’s fifth bill of exceptions was reserved to the admission by the court of the testimony of one Fisher, a witness for the State, concerning a meeting and altercation between the deceased and the defendant about sundown on the evening of the killing, in which the deceased made threats against the defendant. This evidence was properly admitted, and tended to throw light upon the state, condition, and feeling existing between the parties.

We have discussed all the exceptions reserved by the defendant to the rulings of the court during the progress of the trial, and have found in none of them any matter which constitutes reversible error. Ro exception was taken to the charge of the court, nor was any additional instruction asked. The charge is objected to because it; did not instruct the jury in so many words that the witness Powell was an accomplice. The charge submitted this question to the jury. In support of his proposition defendant cites Barrara v. The State, 42 Texas, 260, and Williams v. The State, Id., 392.

We have carefully examined these.cases, and they fail to support the proposition contended for. The court did not err in submitting this question to the jury for their determination. The charge was a full and fair presentation of the law applicable to the facts in the case. We are of opinion that the verdict and judgment are warranted by the evidence adduced on the trial; and having found no reversible error, the judgment is in all things affirmed. Affirmed. Judges all present and concurring.