
    KENNAMER v. STATE.
    (No. 6624.)
    (Court of Criminal Appeals of Texas.
    Nov. 15, 1922.
    Rehearing Denied Feb. 14, 1923.)
    1. Homicide <§=o329 — Appellant cannot complain of county attorney’s testimony on cross-examination as to portion of dying declaration not read to jury.
    Defendant cannot complain of the county attorney’s testimony, "brought out on cross-examination by defendant’s counsel, as to language of a dying declaration not read to the jury, nor testified to on direct examination as a part of such declaration.
    2. Homicide <§=3209 — Any admissible part of written dying declaration may go to jury.
    • Any admissible part of a written dying declaration may go to the jury, and the inadmissible part be excluded.
    3⅛ Homicide <§=3215(4) — -Expression in dying declaration that defendant “raised a row with me” held not a conclusion.
    An expression in a dying declaration that defendant “raised a row with me” held not a conclusion of declarant.
    4. homicide <§=3327 — Bilis of exception, complaining of dying declaration without sufficient predicate, may be dismissed if they fail to show all the predicate laid.
    Bills of exception, objecting to the admission of a dying declaration because no sufficient predicate was laid or shown in the statement itself, without showing all the predicate laid, may be dismissed.
    On Motion for Rehearing.
    5. Homicide <§=3218 — Evidence held sufficient to justify submission of question whether sufficient predicate had been laid for admission of dying declaration.
    Evidence held sufficient to authorize submission to the jury of the question whether a sufficient predicate, under Code Cr. Proe. 1911, art. 808, for the admission of a dying declaration, had been laid.
    6. Homicide <§=>338( I) — Admission of deceased’s statement as to date of killing held not injurious to defendant.
    1 Where the county attorney, testifying as to deceased’s dying declaration, stated that deceased told him “on wh'at day it happened,” and there was no controversy as to the date of the killing, or that the facts referred to in the declaration related to an occurrence on such date, admission of the words “on the 27th of August, 1917,” as a part of the declaration was not erroneous nor injurious to defendant, though the county áttorney stated that he was not positive that deceased used such words.
    Appeal from District Court, iones County; W. R. Chapman, Judge.
    Luther Kennamer was convicted of murder, and he,' appeals.
    Affirmed.
    W. H. Murchison, of Haskell, and B. B. Sturgeon, of Paris, for appellant.
    Thomas & Pope, of Anson, and R. G. Storey, Asst. Atty. Gen., for the State.
   HAWKINS, J.

Appellant was convicted for the murder of C. F. Davis, his punishment being assessed at 10 years in the penitentiary.

Some one had cut the tail off a cow which 'belonged tc> appellant's mother. Deceased was suspected of having committed the act. On the day of the homicide appellant went to the premises of deceased, where the latter was cutting sorghum and -throwing it over the fence to his stock, and made inquiry about the cow, asking the deceased why he had cut off her tail. No one was present hut appellant, deceased, and the latter’s small daughter. Appellant’s testimony raised the issue of' self-defense on the theory that deceased was armed with a stick, and, advancing on appellant, trying to come through the fence with the stick, when appellant shot him. This was combatted by the evidence of Ruby Davis and the dying declaration of deceased. If was established that the shooting occurred on the 27th day of August, and that deceased lingered until September 17th, dying on that date in the Stamford Sanitarium in Jones county, to which he was taken immediately after he was wounded. A dying declaration was taken from deceased by the county attorney on September 10th.

The only bills of exception in the record relate to the admission in evidence of this dying declaration. ' It was in writing, and the entire statement is as follows:

(“I, O. F. Davis, being conscious of approaching death and believing that I am going to die from my present sickness, desire to make this my voluntary statement relative to being shot by Luther Kennamer.)
“On the 27th day of August, 1917, Luther Kennamer came to my house and to my field, where I was working and raised a row with me, in which he said, ‘Speck, you white cap son of a bitch, you have betrayed all of us.’ He had his gun in his hand by that time and begin shooting me; he also accused me of having cut off his cow’s tail, and said he was going to straighten up that business. When he begin to shoot I grabbed for a stick. We were about 25 feet from each other when he shot me, and my fence was between us.
Ms
“O. F. X Davis.”
mark

While the state was laying the predicate for the introduction of the declaration the county attorney testified substantially as follows:

“Deceased made a statement to me in reference to whether or not he was going to die; he told me that he could not get well, was going to die, or the reverse of that, was going to die and couldn’t get well. I don’t know which he put first. * * * I had previously asked him how he was. * * * He spoke to me, called me by name. I asked that question, and he gave that answer, and then it was I asked him if he desired to make any statement relative to the trouble had with Luther Kennamer, and he said he did. I then took such statement; I took it in writing. In taking his statement down in writing, I just took down what he said. I did not ask him questions at all while I was writing down the statement. Probably he would make some statement—he was talking in a very low tone of voice—and if I didn’t understand what he said I would ask what he said; I didn’t ask any questions further than that. In taking the statement I took down it was a straight forward statement as he said it, ,and not by questions and answers. I did not at that time persuade him to make any statement; if any one else did I did not hear it. The statement I took down was a statement voluntarily made by deceased to me as I wrote it down. At the time of making this statement and at the time I took it down, the deceased appeared to be of sane mind; he appeared to be sane.”

Upon cross-examination, tlie witness testified that the portion marked in parenthesis was his. (witness) language, and not that of deceased, and at the request of appellant’s counsel he so marked it, and the part so marked was not read to the jury. He further stated that he would not say that deceased used the language, ‘‘on the 27th day of August, 1917.” Dfc. Southard testified that deceased always expressed to him the hope that he would get well, and' said he was going to get well; that he talked to him the day defore he died, but that he could not recall whether he talked to deceased at any time after the statement was made; that he saw him 2 or 2½ hours before he died, and that he was conscious.

The evidence having raised the issue as to whether the statement was made at a time when the declarant was conscious of approaching death, the trial judge submitted it to the jury in a charge so fair and complete that no objection was made thereto, and the finding upon that issue was favorable to the state.

Several bills of exception complain at the introduction of tlie entire statement, incorporating as a part thereof that portion shown in parenthesis. All are qualified with the statement that this part of the statement was not read to the jury as a part of the dying declaration. One hill shows exception to the county attorney testifying before the jury as to the language shown in parenthesis. The qualification shows it was not testified to as a part of the dying declaration nor introduced as such. The record shows that this language in the statement was brought before the jury upon cross-examination by appellant’s counsel, for which.the state cannot he chargeable, and at which appellant cannot complain.

It is urged in another bill that tho the court, having excluded part of the statement as being no proper part of tlie purported dying declaration, was in error in 'admitting any of it. That, it being a written statement, all or none was admissible. We understand the rule to he to the contrary; that any part of a written dying declaration which is admissible may go to the jury, and tlie inadmissible part be excluded. Manley v. State, 62 Tex. Cr. R. 392, 137 S. W. 1137; Manley v. State, 69 Tex. Cr. R. 502, 154 S. W. 1008; Walker v. State, 88 Tex. Cr. R. 389, 227 S. W. 308; Walker v. State, 85 Tex. Cr. R. 482, 214 S. W. 331.

Complaint is also made because incorporated in the dying declaration admitted was the expression, “On the 27th day of August, 1917,” when the county attorney had testified that declarant might not have used such expression. There was no controversy about the date upon which the difficulty occurred. All parties seem to have agreed that August-27, 1917, was the correct date, and, even if the expression complained of was erroneously permitted to go to the jury as a part of the dying declaration, in no conceivable way could it work injury to appellant.

In another bill appellant complains of the expression, “and raised a row with me” as being a conclusion of the declarant. The trial judge in his qualification says this objection was. not made to the introduction of the declaration. But even had the objection been urged', we think it without merit. Roberts v. State, 5 Tex. App. 141; Pierson v. State, 21 Tex. App. 14, 17 S. W. 468; Corbitt v. State, 72 Tex. Cr. R. 396, 163 S. W. 436.

Several bills seem to be predicated on the objection to the admission of the dying declaration, because it is claimed no sufficient predicate was laid, or because the predicate was iiot sufficiently shown' in the statement itself. Those bills might be dismissed because they do not show the .predicate and all the predicate laid. In Hill v. State, 88 Tex. Cr. R. 179, 225 S. W. 521, Judge Davidson, speaking for the court, says;

“A bill of exceptions will be held insufficient when taken to supposed error in admitting evidence of a dying declaration without laying the proper predicate, and, to be sufficient, it must contain and state that it does contain, all the predicate laid upon which the declaration was admitted, and must further also set out the declaration. Highsmith v. State, 41 Tex. Cr. R. 37, 50 S. W. 723, 51 S. W. 919; Edens v. State, 41 Tex. Cr. R. 523, 55 S. W. 815; Hopkins v. State, 53 S. W. 621; Gutirrez v. State, 59 S. W. 274; Medina v. State, 43 Tex. Cr. R. 53; Francis v. State, 75 Tex. Cr. R. 362, 170 S. W. 782.”

However we are of opinion from the evidence herein before set out that a sufficient predicate was laid for the dying declaration.

Finding no error in the record, an affirmance is ordered.

On Motion for Rehearing.

LATTIMORE, J.

Most strenuous insistence appears in appellant’s motion, urging that the alleged dying declaration introduced on behalf of the state was not admissible, and we have been led to carefully examine the testimony bearing upon the admissibility of same in the light of the objections urged thereto. As to the predicate on the facts, death of deceased occurred September 17, 1917, and resulted from pneumonia approximately caused by the gun-shot wound inflicted by appellant. Deceased was in a sanitarium from August 27th, the date he was shot, till he died:. Dr. Southard testified that there was improvement in the condition of deceased following the operation after injury, but that pneumonia resulting from the injury set in and caused death. The doctor said that deceased expressed himself that he would get well; that he saw "deceased the afternoon preceding, and also the night of his death, but did not remember hearing deceased make any statement at either of ■said times of any expectation of recovery. He testified that when he saw deceased on these two last-mentioned occasions his condition was critical; that his pulse was very high. Death came about 2 o’clock on the morning of the 17th. The county attorney of the county called on deceased at the sanitarium between 1 and 3 o’clock the afternoon of the 16th, and the dying declaration was made and reduced to writing by him on the occasion of said visit. Dr. Southard testified that he heard' from tfie nurses or from Dr. Bunkley that said declaration or statement had been made by deceased, and in response to the question as to whether he heard deceased make any statement about getting well after that, witness said he did not know. The purported dying declaration, according to the testimony of the county attorney, was made by deceased' freely and voluntarily, and after a statement by deceased to witness that he could not get well; that he was going to die. The statement was made by deceased in a very low voice, but was taken down by witness in almost the language of deceased.

The taking of the statement was within 12 hours of the death of deceased. Pneumonia had set in. The condition of deceased was known to be very critical. This condition evidently must have been known to deceased himself, to have caused him to make to the county attorney the statement that he was not going to get well, but was going to die, a statement variant from that theretofore made by him to Dr. Southard. Turning to our statute (article 808, C. C. P.), and observing the four things there laid down as prerequisites to and forming the predicate for the introduction of a. statement as a dying declaration, and asking ourselves whether the testimony as to the existence of these conditions appear in the instant case, we make this observation: The state contends that the predicate was sufficiently laid; tire accused, that it was not. In such case courts must either decide for themselves such issue or submit it to the jury. In the instant case the learned trial court gave to the appellant the benefit of possible doubt, and submitted the question to the jury, instructing them that, unless the state had established beyond a reasonable doubt each of the four grounds made a necessary part of the predicate by article 808, supra, they should not consider said declaration for any purpose. The charge of the court on this point is as follows :

“In order to render the dying declaration of deceased competent evidence, it must be satisfactorily proved: First, that at the time of making such declaration he was conscious of approaching death, and believed there was no hope of recovery; second, that such declaration was voluntarily made, and not through.the persuasion of any person; third, that such declaration was not made in answer to interrogatories calculated to lead the deceased to make any particular statement; fourth, that he was of sane mind at the time of making the declaration; and, unless the state has proved to your satisfaction all four of said conditions, then you will not consider the statement read in your presence as the dying declaration of deceased for any purpose.”

We are at a loss to know what more the court could do. He certainly would not have been justified in rejecting the testimony and holding that the declaration was not admissible.

The objections directed at particular parts of this dying declaration were sufficiently considered in our original opinion. The fact that the county attorney stated that he wrote the words, “on the 27th of August, 1917,” and that he would not be positive that deceased used these words, would justify neither this court nor the trial court in rejecting same and in refusing to submit this phrase of the dying declaration to the jury. We observe that said witness did state that deceased told him “on what day that happened.” This statement appearing in the testimdny, and there being no controversy as to the date of the killing or that the facts contained in and referred to in the dying declaration related to an occurrence on said date, we could not estimate or conclude any damage possible to appellant from the admission of this part of the dying declaration. In Walker v. State, 88 Tex. Cr. R. 389, 227 S. W. 308, this court went into an extended discussion of the law of dying declarations, and sama appears applicable to tbe conditions now under discussion.

Finding ourselves unable to agree with appellant, the motion for rehearing will be overruled. 
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