
    THOMPSON v. STATE.
    (No. 4068.)
    (Court of Criminal Appeals of Texas.
    May 10, 1916
    1916. On Motion, for Rehearing, June 14, 1916.)
    1. Homicide <&wkey;21&wkey;EviDENCE — Admissibility.
    In a prosecution for murder, a conflict in testimony as to whether deceased was conscious when making alleged dying declarations would not render the statements inadmissible, but would go to the weight to be given them by the jury.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 460; Dec. Dig. &wkey;>219.]
    2. Witnesses <&wkey;379(l) — Impeachment.
    In a prosecution for murder, where defendant’s witness testified that she believed the deceased was unconscious when she made the statement that defendant inflicted the injuries on her head, statements made by the witness to the physician who attended deceased, prior to so testifying, were admissible as tending to impeach her.
    [Ed. Note. — For other 'eases, see Witnesses, Cent. Dig. §§ 1209, 1247; Dec. Dig. &wkey;379(l).]>
    3. Criminal Law <&wkey;595(l) — Trial—Continuance.
    In a prosecution for murder, the fact that a witness would testify that he knew the deceased was quarrelsome and knew of two men who had made threats, it not being shown that either was in a position to commit the crime, was immaterial and not ground for a continuance.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1323; Dec. Dig. <§=3595(1).]
    4. Criminal Law <&wkey;595(l) — 1Trial—Contin-uance.
    In a prosecution for murdei’, where witnesses for the state testified that they had heard defendant make threats against the deceased, testimony of an absent witness that he had never heard such threats would be immaterial and not ground for a continuance, unless the absent witness is shown to have been in a position to have heard the threats testified to.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1323; Dec. Dig. <&wkey;>595(l).]
    5. Criminal Law <&wkey;814(17) — Trial — In-structio ns — Circumstantial Evidence .
    In a prosecution for murdex-, where the case depended on direct and positive evidence consisting of dying declarations of deceased, the court properly refused to charge on circumstantial evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1883, 1979; Dec. Dig. <&wkey;> 814(17).]
    
      On Motion for Rehearing.
    6. Criminal Law &wkey;366(6) — Homicide &wkey; 202 — Evidence—Admissibility—Res Gest.® —Dying Declarations.
    In a prosecution for murder, where the doctor who attended the deceased within 15 minutes after the blows were inflicted believed her about to die and told her so, and, although he gave her morphine to ease her pain, believed her to be thoroughly conscious, his testimony as to her replies by nods to his questions as to who hit her, she not being able to speak plainly because of a fractured jaw, was admissible as res gestae and as dying declarations.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 820; Dec. Dig. <&wkey;366(6); Homicide, Cent. Dig. § 429; Dec. Dig. c&wkey;>202.]
    7. Criminal Law <&wkey;366(3) — Homicide &wkey; 207 — Evidence — Dying Declarations — Res Gestas.
    Testimony of another witness who arrived before the doctor as to the statements of the deceased in response to the doctor’s questions as to who struck her, although in answer to a question, were admissible as dying declarations and as res gestae, since it is no objection to a dying declaration that it is made in answer to questions, if the questions were not calculated to lead the deceased to make any, particular statement.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §819; Dec. Dig. <@=366(3); Homicide, Cent. Dig. § 439; Dec. Dig. <&wkey;> 207.]
    8. Homicide <&wkey;216 — Evidence—Admissibility.
    Statements made to the undertaker some time after the statements made to the doctor, while he was preparing to shave the head of deceased, tending to show that deceased was conscious,’-were admissible as dying declarations.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 457; Dec. Dig. &wkey;216J
    9. Criminal Law <&wkey;1133 — Appeal and Error-Presentations in Lower Court oe Grounds eor Review.
    In a prosecution for homicide, an objection that no predicate was laid for impeaching testimony cannot be presented for the first time on motion for rehearing.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2984; Dec. Dig. <@=31133.]
    10. Homicide <&wkey;166(2) — Evidence—Admissibility.
    In a prosecution for murder, testimony of a previous quarrel between deceased and defendant, and that he knew another negro was going to the house of the deceased on the night of the crime, was admissible as tending to show motive for the crime.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 321, 322; Dec. Dig. &wkey;166(2).]
    11. Criminal Law <&wkey;1092(ll) — Trial—Objections.
    In a prosecution for murder, an objection by defendant to the court’s qualification of one of his bills of exceptions should have been made before filing the bill as qualified.
    [Ed. Note. — Eor other . cases, see Criminal Law, Cent. Dig. §§ 2837, 2841; Dec. Dig. <&wkey;> 1092(11).]
    12. Criminal Law <&wkey;456 — Evidence — Opinion Evidence.
    In a prosecution for murder, where a witness testified that she had seen the deceased moaning and raising her body while the doctor was examining her wounds, and heard what the witnesses said to her, and her answers, her opinion that the deceased was conscious was admissible, although opinion evidence, since it is one of the instances where a witness in language cannot portray what she sees and observes and is permitted to express an opinion.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1045; Dec. Dig. <@=3456.]
    13. Homicide <&wkey;234(6) — Evidence — Sufficiency.
    In a prosecution for murder, where several witnesses testified' as to statements made by deceased immediately after the crime accusing the defendant, evidence held sufficient to sustain a verdict of guilty.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 487; Dec. Dig. <@=¿5234(6).]
    Appeal from District Court, Wichita County; Wm. N. Bonner, Judge.
    Charles Thompson was convicted of murder, and he appeals.
    
      Affirmed.
    
    Ralph P. Mathis and Wayne Somerville, both of Wichita Palls, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of the murder of Pearl Bransford, and his punishment assessed at death.

Dr. MacKechney testified to being called to see the woman, that he had her carried to the sanitarium, and that the wounds she received were the cause of her death. lie testified her face was literally torn all to pieces; that her upper jaw was broken, and all her teeth on the right side were broken loose, her lower jaw was brollen, and there were seven distinct wounds on her head; that he found a hammer there bloody; that there were wounds practically all over her entire scalp, and there were several places where the out.er table of her skull was broken. He says be told Mr. Nelson and his wife that he thought it was useless to attempt to do anything for her, but at their request he treated her; that in his opinion the woman was conscious; and he furthermore testified that he informed the woman she was’ going to die and that she wanted to tell the truth. Mrs. Nelson says the woman was informed that she was going to die, and the doctor thought she was dying.

The doctor’s testimony and Mrs. Nelson’s testimony would be admissible both under the res gestse rule and as dying declarations. While the statements made to the undertaker were some time after the statements were made to the doctor, yet his testimony would tend strongly to show that she was conscious, and his testimony would be admissible as a dying declaration.

There are a number of bills objecting to testimony wherein, when asked who did ■it, she would answer to “Sharles,” to others Charles Thompson, and to others would nod her head in the affirmative when asked the question. It is true that witnesses for appellant testified they did not think she was conscious, but this would not render the testimony inadmissible, but go to the weight to be given it by the jury. When the state’s witnesses testified tiiat she was conscious and informed that she was going to die, this made a prima facie case, and rendered the testimony admissible. When the defendant offered testimony that she was not conscious of what she was saying, this rendered it a question of fact to be determined by the jury. None of the bills complaining of the admissibility of this testimony present error.

The testimony of Dr. MacKechney as to what Miss Gossler said to him was admissible. Appellant introduced Miss Gussler and had her testify that in her opinion the woman was unconscious when she made the statement that appellant inflicted the injuries on her head. Any statement she had made to Dr. MacKechney prior to her so testifying would' be admissible as tending to impeach her, and the court in approving the bill says he so limited the testimony.

The testimony of a previous quarrel between deceased and appellant was admissible as tending to show motive for the crime. The witnesses testify that appellant had told the negro woman that “no other man should have her." It was shown another man called on her that evening and was to call again that night, and when he did call he found the negro woman murdered. It is shown that appellant could have and probably did know that Ben Henderson had called that evening and was to call again that night.

The court did not err in overruling the application for a continuance. While it is always permissible to show that another probably committed the crime, or that another had made threats, or had ill will, if the testimony goes further and would place such person in such proximity to the person that he might or could have committed the deed, the fact one absent witness would testify that he “knew the woman was quarrelsome, and knew of two men who had made threats,” would be immaterial, unless such other two persons, or one of them, were placed in such position where they had an opportunity to commit the offense. There is no allegation in the motion as to where the two persons were on the night of the homicide, nor is the name of either of them given. The fact that the absent witnesses had never heard appellant make any threats toward deceased would be immaterial, nor would such testimony tend to weaken the testimony of the state’s witnesses who heard and testified to the threats. Doubtless any number of men could have been picked up who would have testified, and testified truthfully, they had never heard appellant make a threat. Before the testimony of such witnesses would become material, they would have to place themselves in position to have heard the threats testified to by the witnesses for the state. There is no allegation they were present on such occasion, nor is it so contended in the record before-us. 1 1 -

Three or four witnesses testify to the fact that deceased, in her dying declaration, said appellant committed the offense, and the court did not err in refusing to charge on circumstantial evidence. It was a case depending on direct and positive testimony. If the jury had not believed the woman was conscious when she made the statements charging appellant with having inflicted the wounds which caused her death, they should not and would not have convicted him, much less assess the highest penalty known to the law.

The judgment is affirmed.

On Motion for Rehearing.

Appellant has filed a motion for rehearing, and, as the death penalty -was assessed, we have again gone over the entire record, and will again take up each question presented by appellant in his motion.

He first contends we erred in holding the testimony of Dr. MacKechney admissible as res' gestae. The testimony shows the doctor was called as soon as the woman was discovered, and this is shown by the record 'to have been very soon after the blows were inflicted. The doctor testified that:

“Prom my examination of her, and observation of her, and talking with her, I believe she was thoroughly conscious. I convinced myself of that fact, and asked her if Sam hit her, and she gave me to understand that he did not. She did not distinctly say, ‘No,’ because in her condition she could not speak plainly; but she said, as I understood it, ‘No,’ and shook her head. I then asked her if Charlie did this, and she indicated, ‘Yes,’ nodded her head.”

1-Ie says that this vtas about 15 minutes after he got to the house, and that the woman was suffering intense pain, and he gave her a dose of morphine; that he did not give her enough morphine to render her unconscious. He testified:

“All of the upper right side of her jaw was badly fractured, and her lip and cheek lacerated, and the teeth on the right hand side were loqsened clear back.”

He describes her other wounds also, but we have named these to show why she could not speak plainly. In Branch’s Penal Code, p. 52, the rule is laid-down that:

“Statements made by the deceased a short time after the homicide as to how it occurred are admissible as res gestee, * * * where * * * suffering excludes idea of fabrication,” citing a number of authorities beginning with Boothe v: State, 4 Tex. App. 208; Lewis v. State, 29 Tex. App. 204, 15 S. W. 642, 25 Am. St. Rep. 720; Chapman v. State, 43 Tex. Cr. R. 328, 65 S. W. 1098, 96 Am. St. Rep. 874.

Appellant also insists that the testimony of Mrs. Walter Nelson was inadmissible. This lady testifies to going right to the woman and getting there before Dr. Mac-Kechney did, and she says: That the doctor told the woman: “Now, Pearl, you are going' to die. You probably will die. I think you are dying, and you try to tell who killed you.” And the woman replied, “Sharles.” That when this statement was made to her by the doctor, the woman -raised herself up on her elbow and said, “Sharles.” This would be admissible both as dying declaration and as res gestae. Appellant says it was in answer to a question. That is true, but the statement or question was not such as to suggest the answer to be made. It left her free to name the person who had struck her, without any suggestion as to whom she should name. It has always been the rule that it is no objection to a dying declaration that it was made in answer to questions, if the questions were not calculated to lead the deceased to make any particular statement. Hunnicutt v. State, 18 Tex. App. 516, 51 Am. Rep. 330; Pierson v. State, 18 Tex. App. 562; White v. State, 30 Tex. App. 655, 18 S. W. 462; Grubb v. State, 43 Tex. Cr. R. 75, 43 S. W. 314; Hunter v. State, 59 Tex. Cr. R. 455, 129 S. W. 125.

Appellant next insists that the testimony of E. G. Hill was inadmissible wherein the witness testified that he was preparing to shave her hair oft and cleaning her head for that purpose, that he knew she was conscious, for when he told her to put her hand in a pan of water she did so, and while shaving her head, he would' tell her to turn her head and she would do so. He says this was not in regard to nor descriptive of the manner of the death. But this testimony was admissible on the issue of consciousness and was but introductory to permitting the witness to testify that the woman to Id him that Charlie did it, and that he hit her with a hammer. Tinder the testimony of Mrs. Nelson above as to what the doctor told the woman about her going to die, we think the testimony admissible.

Appellant now contends that there was no predicate laid to impeach Miss Gossler, and therefore Dr. MacKechney should not have been permitted to testify to the impeaching statement without a predicate being laid. It is sufficient to say that the bill .does not show that any such objection was urged in the trial court, and it cannot be presented now for the first time on motion for rehearing in this court. It comes too late.

Previous quarrels are always admissible to show motive. Appellant insists we were in error in quoting the substance of the threat testified to by Mike Osborn. The exact language is, after the woman had refused to let appellant stay with her, “if you can’t stay with me, you will never live for nobody else.” This was peculiarly admissible in the light of the facts that another negro was to go to the house the night she was killed, and she was killed before he got there. Appellant was also placed in position that he could have known that the other negro was going to deceased’s home. As to appellant’s objection to the court’s qualification of one of his bills, he should have done this before filing the bill as qualified. Blain v. State, 34 Tex. Cr. R. 448, 31 S. W. 368.

After Mrs. Dolman had testified to' seeing the woman moaning and swaying her body, raising her body on her elbows, and screaming when the doctor examined her wounds, and heard what the witnesses said to her, and her answers, there was no error in permitting her to state that in her opinion the witness was conscious. This is one of the instances in which the witness in language cannot portray what she sees and observes and is permitted to express an opinion.

The only other objection is that the testimony is insufficient to sustain the death penalty. If the evidence will not sustain the death penalty, it is wholly because appellant is not sufficiently identified as the person who committed the crime, and, if that is true, no penalty should be sustained. The mode and manner of killing this woman was most cruel and wanton. The doctor testified:

“When I arrived, in the servant house I found a negro woman lying on the floor, with her face literally beat all to pieces. I have practiced medicine for 20 years, and I have never seen anything like it. This upper jaw was broken, and all of her teeth on this side, right side, were knocked loose. Her lower jaw was broken, and she was beat over the head. I think there was seven distinct marks on her head. It looked like this had been done with a hammer, and, in fact, I found a hammer lying there on the floor, bloody, that compared with it; that is, the bit of a hammer compared with the size of the wounds on her head.”

Appellant’s counsel made an able defense and undertook to fasten the crime on another and prove an alibi for appellant. The jury solved these questions against him, and we cannot say they were not authorized to do so.

The motion for rehearing is overruled. 
      <§=jFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     
      (g^For other cases see same topic and KEY-N.UMBEK, in all Key-Numbered Digests and indexes
     