
    McKenzie v. state.
    (No. 7989.)
    (Court of Criminal Appeals of Texas.
    Jan. 23, 1924.
    Rehearing Denied March 5, 1924.)
    1. Homicide <§=>203(3), 213 — Dying declaration held to have been made while decedent was sane and believed himself to be dying.
    In a murder prosecution, evidence held sufficient to show that deceased was sane, and that he believed himself to be dying at the time he made a statement that defendant had shot him, and therefore such statement was admissible.
    2. Homicide <§=>207 — Dying declaration not involuntary because in answer to a question.
    That a dying declaration is made in answer to a question does not affect its voluntary character.
    3. Criminal law <§=>395 — No error in not returning flash light to defendant where identified as property of decedent.
    In a murder prosecution, the court did not err in refusing to require the state to return to defendant a flash light taken from defendant’s possession when arrested, and offered in evidence, where the testimony positively identified it as the property of decedent.
    4. Criminal law <§=395 — Property of evidential value need not be returned until it has served its purpose.
    The state is not required to return a defendant’s property, where its use in testimony > is of evidential value, until after it has served its purpose in the testimony.
    5. Criminal law <§=>404(1) — No error in permitting jury to examine articles offered in evidence in murder prosecution in open court.
    In a murder prosecution, the court did not err in permitting the jury to examine in open court certain articles offered in evidence by the state, where the court did not permit such articles to be taken into the jury room.
    6. Homicide <§=>309(3) — Manslaughter charge properly refused, where nothing in record to justify it.
    A manslaughter charge was properly refused in a murder prosecution, where there was nothing in the record to indicate in any way a shooting in that condition of mind which might reduce the homicide to manslaughter.
    On Motion for Rehearing.
    7. Criminal law <§=>! 120(4) — Objection to question propounded to witness not considered, . where witness’s answer not set out.
    The appellate court cannot consider an objection to a question propounded to- a witness, where witness’ answer is not set out.
    8. Criminal law <§=>! 111 (3) — Bill of exceptions not showing that grounds of objection were true and being qualified by trial judge insufficient to raise any question..
    Where a bill of exceptions, reciting objections to testimony admitted in a homicide prosecution as to the dying declaration of decedent, failed to show that the ground of objections were in fact true, and the bill was qualified by the trial judge, who stated that sufficient predicate had been laid for the admission of such declaration, and was accepted in this condition by defendant, it was insufficient to raise any question on appeal.
    9. Criminal law <§=>395 — Admission of decedent’s flash light found in defendant’s possession after homicide held not erroneous.
    In a murder prosecution, the court did not err in admitting decedent’s flash light in evidence, where it was never seen in defendant’s possession until after the homicide, and it was positively identified on the trial by the widow of decedent as his property, and in his possession the night he was killed.
    Appeal from District Court, El Paso County; W. D. Howe, Judge.
    Pete McKenzie was convicted of murder, and he appeals.
    Affirmed.
    Clarence Eolsom and A. T. Eolsom, both of El Paso, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst.. State’s Atty., both of Austin, for the State.
   BATTTMORE, J.

Appellant was convicted in the district court of El Paso county of murder, and his punishment fixed at confinement in the penitentiary for life.

Arthur Moseley was night watchman for several buildings in El Paso, among them the American Union Laundry building, testimony shows that in- performing the duties of his service, he carried a flash light. Just across the street from said laundry building was an apartment house, the lower floor of which was occupied by G. W. Reed and his family, one of the daughters of Mr. Reed having married a brother of appellant. At the time of the alleged homicide the appellant was spending his nights at said house, sleeping with Mr. Reed on a sleeping porch. Late in the night on the date of the homicide appellant is shown to have come into the porch where Mr. Reed was in bed; being awakened by the entrance of appellant, Mr. Reed saw him put something under the foot of the bed; 'appellant showed Mr. Reed a hole in his pocket, saying that he had shot said hole. He came into the sleeping porch a half or three quarters of an hour after the shooting, and had on a rain coat belonging to witness Reed, and had a flash light whioh Mr. Reed said he had not seen him with before. Mr. Reed testified that he told appellant that a man • had been shot across the street, and that appellant merely remarked, “There was,” and undressed and ■went to bed. He asked no further questions about the shooting further than to ask witness if he knew who it w’as, and Reed said-he told him that he did not find out. Mr. Reed further testified that he was present the next morning when the officers came and arrested appellant, and saw them get a pistol from under appellant’s pillow and also a flash light. Later witness was showh a pair of pliers and a dollar that were in the coat pocket of appellant’s clothes when searched. These were similar to pliers which belonged to witness, and which usually stayed in a dresser drawter on the sleeping porch. Witness said he had not put the pliers in the pocket of his rain coat. Referring to the hole in the coat pocket, Mr. Reed. said appellant told him when he came in that the pistol went off in his pocket, and-made the hole. It was further in testimony that deceased was carried to a hospital, and that while on the way he told a party that he was going to die. This party, Mr. Smith, testified that deceased said: The

“They have got me; I will never get well; they have got me; I feel bad; I am going to die.”

It was further in testimony that deceased suffered greatly at the hospital, and a telegram was sent to his son, after the sending of which deceased said that he was not going 'to get well, and further said, referring to his son, “If he doesn’t come pretty soon, he won’t see me.” This was after 7 o’clock on the morning after the shooting. Deceased died about 2 o’clock in the afternoon. After haying made the above statement, and while talking to a minister, he said, “I am going, I am going, then I will soon be easy.” Be■tween 9:30 and 10:00 o’clock that morning appellant was carried into the presence of deceased- Mr. Branco, a city detective, testified that he took him to the room where deceased was, and deceased was lying in bed, and said, “I can’t see his face very well, raise the blind at the window,” and the blind was raised, and deceased looked at appellant, and said, “That is the man who shot me,” and immediately they left the room. There was some testimony to the effect that deceased was asked if he could identify appellant when brought in the room. It was also in testimony by the wife of deceased that the flash light which was found under the pillow of appellant at the time of his arrest belonged to her husband, and was identified by her as the one carried' by him on the night he whs killed. Examination of the pistol foun'd under appellant’s pillow also revealed the fact that it had been recently fired.

Complaint is made of the admission of the statement of deceased that appellant was the man who shot him; it being urged that the predicate, both as to a belief of impending death on the part of deceased, as to the voluntary character of his statement, and as to proof of his sanity, was insufficient. INumerous authorities might be cited holding that the fact that the statement of deceased was made in answer to a question would not affect its voluntary character. We think the testimony of the wile of deceased and also of the party who carried him to the sanitarium ample to establish the belief on the part of deceased of impending death. There is nothing in the record to suggest lack of sanity on the part of deceased, and all of the testimony as to his conduct, conversations, and actions tends to indicate sanity. We do not believe any error appears in the admission of the dying declaration, nor in the refusal to strike out the same, nor to charge the jury not to consider same.

Complaint is made of the refusal of a motion to require the state to return to appellant the flash light offered in evidence by the state; it being asserted in the motion that it was the property of appellant. There was no error in the refusal of said motion. Not only is there no testimony to indicate that the flash light in question belonged to appellant, but- on the contrary the testimony positively identifies it as the property of deceased. The possession of said property by the officers of the state and its use in testimony being of evidential value in this ease, the state would in no event be compelled to return it to appellant until after it had served its purpose in testimony. Welcheck v. State, 93 Tex. Cr. R. 271, 247 S. W. 524; Davis v. State, 93 Tex. Cr. R. 192, 246 S. W. 395; Rippey v. State, 86 Tex. Cr. R. 539, 219 S. W. 463. What we have just said makes it unnecessary for us to discuss or assert the correctness of the learned trial judge in overruling appellant’s objection to the introduction in evidence of said flash light; or to assert the correctness of the refusal of the instruction to disregard the evidence as to the flash light, .etc., or to withdraw same from the consideration of the jury.

There is a bill of exceptions to the action of the learned trial judge in permitting the jury in open court to examine the articles which were offered in evidence by the state, i. e., the pistol, the flash light, the pliers, etc. It appears from said bill that the court informed counsel that he w'ould not permit said articles to be taken into the jury room, but that he would permit the jury ,to examine them in the presence of the court and counsel’. No error is manifested.

There is a complaint of the refusal of a special charge on manslaughter. We know of no authority in this state requiring the giving of a charge upon a theory that has no support in the testimony. There is nothing in the record to indicate in any way a snooting in that condition of mind which might reduce the homicide to manslaughter.

There is a bill of exceptions to several quoted statements made by the state’s attorney in his argument to the jury, most of which appears upon its face to be permissible, and as to that part of it which might otherwise be in doubt there appear appended to the bill of exceptions qualifications of the learned trial judge in the light of which the argument appears to be not improper. In this connection We observe that no special charges were requested of the court with specific reference to any of the argument, and that a charge asked instructing the jury not to consider matters not in evidence was given.

We have carefully considered all of the matters raised on behalf of appellant, and, finding no error in the record, an affirmance must be ordered.

On Motion for Rehearing.

In appellant’s motion it is urged that the predicate fdr the dying declaration of deceased was not sufficient. Complaint of this appears only in bill of exceptions No. 3, wherein is set forth, first, an objection to a question asked the wife of deceased, but her answer, if any, not being stated, nothing appears for our review. The same bill presents the testimony of Mr. Franco as to the dying declaration, which is set out followed by the objections urged to Franco’s testimony. Recital or objections made does not amount to any proof of the truth of the reasons stated as grounds for the objection. This has often been adverted to by us. In the -bill under 'discussion, not, only is there lack of showing that the ground of objection stated in fact was true, but there also appears a qualification to said bill in which the learned trial judge avers that sufficient predicate had been laid for the admission of the dying declaration in other testimony. The bill was accepted in this condition. This renders of no avail the argument in the motion on the point attempted to be thus raised.

Appellant also again urges that the flash light offered in evidence was not properly seized, etc., and that its admission in evidence was error. We have nothing to add to what we said in Welchek v. State, cited in the original .opinion, in which the authorities were fully reviewed. We might, howevqr,' add on the facts that the flash light in question was never seen in appellant’s possession until after this homicide, and that it was positively identified on the trial by the widow as the property of her husband and in his possession the night he was killed. Under such facts we know of no authority which would hold its introduction erroneous. If there existed a contention based on facts as to the identity and ownership of the flash light, same would not suffice for the rejection of the testimony but would merely make such question one for the jury to decide.

We think our disposition of appellant’s complaint of the argument in our former opinion was correct.

Being unable to agree with either of the contentions made, the motion for rehearing will be overruled. 
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