
    ALBRECHT v. STATE.
    (No. 5178.)
    (Court of Criminal Appeals of Texas.
    May 7, 1919.
    On Motion for Rehearing, June 25, 1919.
    Application to Withdraw Second Petition for Rehearing Granted Oct. 22, 1919.)
    1. CRIMINAL LAW <&wkey;10Sl — APPEAL DISMISSED IN ABSENCE OX NOTICE OF’APPEAL.
    Where no notice of appeal was given or entered in the minutes of the court below as required by statute, the appeal will 'be dismissed.
    On Motion for Rehearing.
    2. Homicide &wkey;>203(3) — Foundation sufficient to admit dying declarations.
    Where evidence showed deceased was told by his medical attendant that he must die, and he sent for a minister who administered the dying sacrament, and talked with his brother about his business, and expressed commiseration for his wife and children, a sufficient foundation was laid for admitting in evidence his dying declaration.
    3. Homicide &wkey;>309(l) — Instruction as to adequate cause for manslaughter. .
    A charge on manslaughter in regard - to adequate cause held not too restrictive.
    4. Homicide <&wkey;45 — Insulting words not ADEQUATE CAUSE FOR MANSLAUGHTER.
    In view of Vernon’s Ann. Pen. Code 1916, art. 1131, insulting words or gestures are not adequate cause such as would render a killing manslaughter.
    5. Homicide <&wkey;309(6) — Instruction on defense NOT RAISED HARMLESS.
    In a homicide case, where accused took the stand himself and testified that he shot deceased “because I was trying to defend myself,” and nowhere claimed that any language used by deceased affected him in any way or made him angry, he cannot complain that a charge on manslaughter was too restrictive in that it stated that insulting words are not adequate cause.
    6. Homicide <&wkey;300(7) — Evidence not requiring INSTRUCTIONS ON SELF-DEFENSE.
    In a homicide case, evidence held not to require the court to charge on self-defense.
    7. Criminal law <&wkey;814(3) — Submission of THEORY NOT RAISED BY EVIDENCE.
    The court is not required to submit a theory of any case unless there is evidence in the case raising such issue.
    Appeal from District Court, Victoria County; John M. Green, Judge.
    Fred Albrecht was convicted of murder, and he appeals..
    Appeal dismissed.
    Fly & Ragsdale, of Victoria, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Victoria county of the offense of murder, and his punishment fixed at five years in the penitentiary.

It is moved in this case by the Assistant Attorney General that the appeal be dismissed because it does not appear from the record that notice of appeal was given and entered in the minutes of the district court, as required by statute. An inspection of the transcript discloses that the same fails to show that any notice of appeal was entered of record in the minutes of the court below. The authorities of this state are unanimous in holding that the statute requiring this to be done is imperative. Long v. State, 3 Tex. App. 321; Solari v. State, 3 Tex. App. 482; Johnson v. State, 8 Tex. App. 671; Truss v. State, 38 Tex. Cr. R. 291, 43 S. W. 92; Lenox v. State, 55 Tex. Cr. R. 259, 116 S. W. 816; Thomas v. State, 56 Tex. Cr. R. 246, 119 S. W. 846; Young v. State, 60 Tex. Cr. R. 290, 131 S. W. 413; Rios v. State, 76 Tex. Cr. R. 364, 174 S. W. 1050.

The appeal is dismissed.

On Motion for Rehearing.

Defects in the record which caused the dismissal of this case at a former day of this term having been remedied, the cause is now before us on its merits.

The appellant’s first complaint is of alleged error in the admission of the declaration of deceased to Reverend Sievert. This was offered by the state as a dying declaration. Deceased was shot about 6 or 7 o’clock in the afternoon; the statement was made about 10 o’clock that night; and deceased died the next day. The only ground of objection, as stated in the bill of exception, is;

“Because the state had not laid a proper predicate for the introduction of this testimony as to how the difficulty occurred so as to make it a dying declaration of the deceased.”

The statement so objected to was as follows :

“I was trying to keep the peace. Albrecht struck me. We went out. We looked in and I was shot.”

The undisputed facts show that appellant shot deceased; that at the time of the shooting deceased and his brother had gone out of the saloon and hadf**returned to, and were standing just outside the door cursing and abusing appellant, who was standing behind his bar something like 12 feet away. As bearing on th’e predicate laid for the introduction of said statement, Dr. Hopkins testified that he was called to see deceased when he was shot, and that after examining him he stated to deceased that he could not stand to be taken home, that he might die on the way; that he had deceased taken to a hor tel, and after he had gotten him a little quiet he asked deceased if he wished to make any will, and deceased said no, that he would ¿ell his brother 'about his business, and the witness Hopkins then informed deceased that, if he had any business to attend to, do it now because his wound was .fatal. Said witness further asked deceased if he wanted to send for a minister, and deceased answered, “Yes,” and Reverend Sievert was sent for and came. Apparently in'answer to a direct question, the said physician testified:

“At the time of the conversation with the minister he was conscious of the fact that he was going to die and the minister gave him the last sacrament on that acc'ount.”

During all this time the witness said that deceased was suffering intensely and was shot through the stomach. On cross-examination the said physician reiterated that he was firmly of opinion that deceased was conscious that he was going to die. A careful examination of the record discloses no statement on the part of the deceased at any time éxpressing any hope of recovery or doubt of the fact of his approaching dissolution. After making the statement to the minister, which is the subject of this objection, deceased presently said: “My poor wife and children.”

We think the evidence admissible as a dying declaration. Sims v. State, 36 Tex. Cr. R. 154, 36 S. W. 256; Morgan v. State, 54 Tex. Cr. R. 542, 113 S. W. 934; Douglas v. State, 58 Tex. Cr. R. 128, 124 S. W. 933, 137 Am. St. Rep. 930. In the case of Miller v. State, 27 Tex. App. 81, 10 S. W. 447, Judge Hurt states the rule as follows:

“The declarations must be made under a sense of impending death, but it is not necessary that they should be stated at the time to be so made. It is enough if it satisfactorily appears in any manner that they were made under that sanction; whether it be directly proved by the express language of the declarant, or be inferred from his evident danger, or the opinions of medical or other attendants stated to him, or from his conduct or other circumstances of the case—all of which are resorted to in order to ascertain the state of the de-clarant’s mind. 1 Greenlf. Ev. 192.”

In the Krebs Case, 3 Tex. App. 360, it is said:

“In order to make a ‘dying declaration admissible in evidence, the deceased must not only be in a dying condition, but he must actually believe that he is so. This may be inferred from the statement of the party, and also .from the nature of the wound and other circumstances.”

In Hunnicutt v. State, 18 Tex. App. 516, 51 Am. Rep. 330, Judge White guotes with approval the following from Mr. Greenleaf:

“Mr. Greenleaf thus announces the rule with regard to such declarations: ‘It is essential to the admissibility of these declarations, and ;s a preliminary fact to be proved by the party offering them in evidence, that they were under a sense of impending death; but it is not necessary that they should be stated at the time to be so made. It is enough if it satisfactorily appears in any mode that they were made under that sanction; whether it be proved by the express language of the declarant, or be inferred from his evident danger, or the opinions of the medical or other attendants, stated to him, or from; his conduct, or other circumstances of the case, all of which are resorted to in order to ascertain the state of the de-clarant’s mind.’ ”

We have examined the authorities cited by appellant and find nothing in any of them to justify us in holding' that the statement should be excluded under any rule of law or any of the decisions of this court to which we are referred. The rule laid down by the authorities above mentioned and Mr. Greenleaf is fully met by the facts in the instant case. It appears therefrom that deceased was told by his medical attendant that he must die; also, that he sent for the minister who administered the dying sacrament; also, the character of his suffering and the nature of his wounds is detailed; it also appears that he talked with his brother about his business ; and further the commiseration expressed for his wife and children—all these' are matters which are regarded as sufficient to indicate his consciousness of approaching death at the time the statement was made.

We do not think the charge on manslaughter too restrictive of any substantial right of the appellant. The definition of “ad-eguate cause” therein is as follows:

“By the expression ‘adequate cause’ is meant such as would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper sufficient to render the mind incapable of cool reflection. The following is deemed adequate cause: An assault and battery by deceased on the person of the defendant, causing pain. Any condition or, circumstance which is capable of creating and does create sudden passion, such as anger, rage, sudden resentment or terror, rendering the mind incapable of cool reflection, whether accompanied by bodily pain or not, is deemed adequate cause. And where there are several causes to arouse passion, although no one of them alone, might constitute adequate cause, it t is for you to determine whether or not all such causes combined might be sufficient to do so. Insulting words used by deceased towards defendant are not such adequate cause.”

It is statutory that insulting words or gestures are not adequate cause. Vernon’s Penal Code, art. 1131, and authorities cited; Wood v. State, 71 Tex. Cr. R. 398, 159 S. W. 1183; Wilson v. State, 71 Tex. Cr. R. 399, 160 S. W. 86; Johnson v. State, 74 Tex. Cr. R. 179, 167 S. W. 736.

Appellant took the stand in his own behalf and nowhere claimed that any language used by deceased or his brother affected him in any way or made him angry or that same caused him to fire and kill deceased. His statement on this point was as follows:

“I shot Henry Kolle because I was trying to defend myself. From what I saw I thought he was going for his gun, and that is why I shot him. I guess if Charley Kolle had made a play for his gun I would have shot him too.”

The proof showed that both the Kolles were standing together just outside the saloon of appellant, and that both of them were cursing and abusing him; but it was not claimed by the appellant, nor any of his witnesses, that Charley Kolle made any demonstration of any kind indicating any intent to attack appellant or to renew any difficulty after he went out of the saloon. In this state of the record, we fail to see how appellant can complain further of the charge on manslaughter.

Nor do we think there is anything in the exception to the court’s charge, -or the requested special charge, submitting the question of appellant’s right to defend himself against danger or apparent danger from an attack at the hands of both the Kolles. There had been a fight in the saloon participated in by a number of people. During said row Charley Kolle walked out of the door of the saloon calling to his brother Henry, who .was engaged in a fight with Ed. Maddox, the son-in-law of appellant, to come on and go. The two Kolles then went together out to their car, which was in plain sight of appellant, and then said parties returned to the door of the saloon. Appellant said he watched them go out to the car and saw them come back. When they returned to the door, appellant was standing behind the bar with his pistol in his hand and had the same pointed over the bar toward the door. Both Kolles stpped at the door and both of them cursed appellant, and, according to some of the witnesses, dared him to shoot, and told him hie did not have nerve enough to shoot. It was testified by the appellant that, while the parties were in this position, Henry Kolle threw his hand behind him, and he thought he was going to get his gun, and he shot Kolle. It was not claimed by the appellant or Ed. Maddox, who was his bartender, son-in-law and witness, of by any one else, that Charley Kolle made any demonstration of any kind after goiDg out of the saloon; and in this condition of the record a charge authorizing appellant to act in his self-defense against any danger or apparent danger at the hands of Charley Kolle was wholly uncalled for. It is elementary that the court is not required to submit a theory of any case unless there is evidence in the reford raising such issue. Neither of the Kolles had any weapons or exhibited them at any time during the difficulty.

We have carefully reviewed the record, and, finding no reversible error therein, the motion for rehearing is overruled, and the judgment of .the lower court is affirmed. 
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