Winfrey v. State

DAVIDS OH, Presiding Judge. Appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of twenty-five years. He introduced Miss Anna Stanphill, who testified: That when the difficulty came up between- her stepfather (deceased) and her lover (defendant) they were in the sitting room, on the west side of the hall. That they were not expecting deceased until about 6 o’clock, or later. Unexpectedly, he arrived about 5 o’clock. That he ran up-the steps with his hatchet in hand, and “1 said to Carl, ‘There comes papa, with his hatchet.’ ” He cursed and abused defendant, and threw the hatchet' at him. That she heard three shots. Saw defendant come running around the yard from the front on the outside, and she, at his request, carried him his cap, which he had left in the house. On cross-examination the district attorney asked her if she did not, on the evening subsequent to the difficulty, at the residence of deceased, state to C. E. McConnell that defendant was sitting on the bed, and had been playing his guitar, when deceased came running into the room, and threw a stick of wood and hatchet at Carl before he could get up. She denied making the statement. She further denied she and defendant- had been in the bedroom that evening, hut had been in the sitting room, on the west side of the hall, during defendant’s visit. For the purpose of impeaching her, McConnell was introduced, and stated that on Saturday night, after Miller, had been shot by defendant, he was at Miller’s residence, and saw witness Stanphill, and asked her how many times defendant shot, and she stated he only shot deceased once, and that was in the hip. *540 He then asked her where they were when deceased came that evening. She stated Carl was sitting on the edge of the bed, and had been playing his guitar, when Hiller came running into the room, and threw a stick of stovewood and hatchet at Carl before he could get up off the bed. Objection is urged in the motion for new trial because the court failed to limit the effect of this testimony. The court states, however, he verbally instructed the jury that the evidence was only offered to impeach and contradict the witness Stanphill. It is true that where a charge is required to be given the jury in a felony case it must be in writing; a verbal instruction will not suffice. Thompson v. State, 29 Texas Crim. App., 208; Owens v. State, 35 Texas Crim. Rep., 351; Paris v. State, 35 Texas Crim. Rep., 95. But it was not necessary for the court to limit the effect of this testimony to impeachment. Where it is apparent that the testimony can be used for no other purpose than that of impeachment, it is not necessary for the court to limit the purpose of the same in its charge. Wilson v. State, 37 Texas Crim. Rep., 373; Franklin v. State, 38 Texas Crim. Rep., 346; Moseley v. State, 36 Texas Crim. Rep., 578. As we understand it, this testimony could be used by the jury for no other purpose than impeachment. If it could be used otherwise, either as an incriminating fact, or to exercise a strong, undue, or improper influence upon the jury as to the main issue, injurious and prejudicial to appellant, then it would have been the duty of the court to limit and restrict its effect in his charge, so that no unwarranted results could ensue. These two rules are recognized throughout the decisions in this State. We do not believe this testimony could have been used by the jury for any purpose other than impeachment. Hence there was no error in the failure of the court to limit and restrict the testimony. Two bills of exception were reserved to the action of the court permitting the introduction of dying declarations of Miller. It was generally objected that Miller was not conscious of approaching death, and had no hope of recovery. The two bills, in our judgment, made it apparent that deceased had no hope of recovery at the time he made the statement; and the mere fact that his statements to his effect were made, in the first instance, subsequent to making the statement, does not take away its probative force. The statute does not specify the time when nor the manner in which this fact shall be made to appear, provided it does sufficiently appear from the statement of the deceased that he is conscious of approaching death, and has no hope of recovery. No set form of words should be required in a dying declaration to show that defendant was under belief of speedily impending death. The court must draw a rational conclusion from all that was said, taken in connection with such surrounding circumstances as must have been known to the declarant, as to whether said declarant was in such condition of mind as would render his declaration competent. See State v. Johnson, 7 Am. Crim. Rep., 366; Reynolds v. State, 4 *541 Am. Crim. Rep., 152; Payne v. State, 4 Am. Crim. Rep., 155, and note (same ease, 61 Miss., 161); Railing v. Commonwealth (Pa. St.), 6 Am. Crim. Rep., 7, and note (same case, 1 Atl. Rep., 314); State v. Cantieny (Minn.), 6 Am. Crim. Rep., 418, and note (same case, 24 N. W. Rep., 458). We think the bill of exceptions sufficiently shows that deceased was laboring under the impression of impending death. Defendant, however, further objected to the following statements: (1) “I was feeling unwell this evening, and quit my work about 5 o’clock, and came home. I brought my hatchet with me, which was loose on the handle, intending, when I got home, to make a wedge, and put in it.” As an original proposition, we believe this testimony was not admissible as dying declarations. That portion of it which relates to the hatchet might have been introduceable in rebuttal of the evidence relied upon by defendant,- showing an attack made by deceased with the hatchet. Defendant objected secondly to that portion of said statement which is as follows: “I had told Carl Winfrey [defendant] that I wanted him to stay away from my house. He knew that I objected to him coming. I had no objections to his coming to see Annie [meaning Annie Stanphill, his stepdaughter] if he would come like any other man.” Perhaps this was not admissible as dying declarations, but we do not think it could have affected appellant injuriously in this case, because he himself and Mrs. Miller and Miss Stanphill testified to the same fact. He also reserved an exception to the action of the court permiting witness Simmons to testify to the statement of deceased, “Oh, I know I will never see the light again.” This statement was made while deceased was being removed from his bed to the operating table, to be operated upon by the physicians. There is no merit in this bill. There being no error in the record, the judgment is affirmed. Affirmed.