
    BECKHAM v. STATE.
    (No. 3535.)
    (Court of Criminal Appeals of Texas.
    May 5, 1915.)
    1. Homicide &wkey;>209 — Dying Declaration.
    As the statutory requisites of a dying declaration are merely that the declarant was conscious of approaching death and believed there was no hope of recovery, that the declaration was voluntarily made, that it was not in answer to interrogatories calculated to lead deceased to any particular statement, and that at the time of making it the declarant was of sane mind, a statement made by deceased and reduced to writing is admissible in evidence, although because of weakness it was not signed by him.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 441; Dec. Dig. &wkey;?209.]
    2. Homicide <&wkey;207 —Dying Declaration-Admissibility.
    A dying declaration made by deceased in response to questions by the attending physician as to whether deceased knew who shot him, and if the man who shot him knew whom he was shooting, is not inadmissible as being made in response to interrogatories calculated to lead to any particular statement.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 439; Dec. Dig. &wkey;3207.]
    3. Homicide <&wkey;203 — Evidence—Dying Declarations.
    Where deceased, on being informed by the attending physician that he had no hope of recovery, stated that he did not think so either, but wanted the physician to do all he could for him, a dying declaration made thereafter is not inadmissible on the ground that deceased had a lingering hope of recovery.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 430-437; Dee. Dig. &wkey;203.]
    4. Homicide <&wkey;309 — Trial—Instructions.
    Where there was no evidence of antecedent menaces, quarrels, or threats or anything else tending to reduce the shooting to manslaughter, the denial of an instruction submitting that issue was proper.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 649, 650, 652-655; Dec. Dig. &wkey; 309.]
    Appeal from District Court, San Augustine County; A. E. Davis, Judge.
    William Beckham was convicted of murder, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of murder, and his punishment assessed at five years’ confinement in the penitentiary.

The first contention is that the court erred in permitting the alleged dying declarations of deceased to be introduced in evidence. The record on this matter is as follows: Dan Walker testified:

“This is a statement written up there where Matt Roberts was, by Dr. Kavanaugh, about 4 o’clock on Sunday morning, and read to Matt and signed by Dr. Kavanaugh and myself as witnesses, and is supposed to be the dying statement of Matt Roberts. I was present when he made that statement and witnessed this statement. The doctor told him that he thought he would die. When the physician told him that he thought he would die, Matt Roberts said, ‘Well, I think so too, but I want you to do all you can for me.’ He just said to him that he didn’t want him to quit trying to save him. I think the doctor said, T don’t think there is any chance for you to live.’ And he agreed with the doctor, but wanted him to do all that he could. The doctor asked him if he wanted to make a statement, and told him that it would be used as a dying statement, and he said that he wanted to make a statement. The doctor asked him two questions. He asked him if he knew who shot him, and if the man that shot him knew who he was shooting, and the negro replied in the affirmative to both questions. The doctor asked him if he wanted to make a statement, and he replied in the affirmative, and the •doctor told him that he was in a dying condition. That was just about 4 o’clock. The negro knew what he was talking about; he was perfectly rational.
“Court: I am going to admit the statement.
“McDonald: We object to this because we don’t think it was the deliberate act of the deceased, and that the state didn’t confine, itself to the rule in qualifying the statement; the negro didn’t sign the statement at all.
“Witness: Dr. Kavanaugh wrote the statement out, and I made the suggestion that the negro was too weak to sign it, and the doctor said, ‘You and I will just sign it as witnesses.’
“McDonald: We object for the further reason that it is not signed at all.
“The Court: All right, I will admit it. (Defendant excepts.)
“The state offers in evidence the dying statement of Matt Roberts, as follows: ‘I had just taken Abe home — he was drunk — and had come back to see about Clyde, and had started him off, and had come back to get my hat, when he shot me. We had been drinking a little. We had never had a cross word. I was looking right •at him when he shot me. Willie Beck shot me. He said, “You son of a bitch, don’t you come back in here.” ’ ”

It will be noticed that the first objection made is that the statement was not signed by deceased. The court did not err in overruling such objection; for even oral evidence is admissible when the statement has not been reduced to writing. Black v. State, 1 Tex. App. 368; Roberts v. State, 5 Tex. App. 141. In the case of Krebs v. State, 8 Tex. App. 1, it was held that, where the dying declaration has been reduced to writing, the loss of-it must be shown before evidence of its contents is admissible, and in this case, the statement having been reduced to writing, the written statement, and not oral evidence of its contents, should have been, and was, admitted. The statute does require that the statement be signed by the deceased. It is better that he sign it, but, if too weak, as the evidence in this case shows, the fact he had not signed it would not render it inadmissible, if the evidence should show he, in fact, made the statement or declaration. There are only four requisites required by the statute: (1) That' at the time of making the declaration he was conscious of approaching death, and believed there was no hope of recovery; (2) that such declaration was voluntarily made, and not through persuasion of any person; (3) that such declaration was not made in answer to interrogatories calculated to lead the deceased to make any particular statement, and (4) that he was of sane mind at the time of making the declaration. Under the evidence in this case there can be no doubt of the sanity of the' deceased. That the doctor asked him two questions — if he knew who shot him, and if the man who shot him knew who he was shooting — would not render the declaration inadmissible. The questions nor either of them were calculated to lead him to make any particular statement. Brande v. State, 45 S. W. 17; Taylor v. State, 38 Tex. Cr. R. 552, 43 S. W. 1019; Hunnicutt v. State, 18 Tex. App. 498, 51 Am. Rep. 330. The only serious question is: Does the evidence manifest that deceased knew he was in a dying condition. Specific objection on that ground seems not to have been made in the trial court, unless it be embraced in the general objection “that the state didn’t confine itself to the rule in qualifying the statement.” This, taken in its broadest sense, might embrace each requisite of the statute. The witness testified that the doctor told deceased he .thought he would die, when deceased replied, “I think so, too, but I want you to do all you can for me,” the doctor replying, “I don’t think there is any chance for you to live.” Appellant’s contention that deceased’s language evidenced a lingering hope of recovery seems to have been held adversely to him by this court in the case of Hunnicutt v. State, 20 Tex. App. 638. Anyway, in this case appellant himself testifies they had been friends. Several witnesses testify that deceased had • come after his hat, and all the testimony corroborates the deceased in the statement he was looking at appellant when shot, and that appellant shot him.

The only exception made to the court’s charge is that he erred in 'failing to submit the issue of manslaughter. Appellant prepared and submitted a special charge on that issue, and, if the evidence raises the issue of manslaughter, the question is properly presented. We have carefully studied the record, and we are of the opinion that the evidence does not raise the issue. There were no antecedent menaces, quarrels, or threats, shown, and the circumstances occurring at the time are not of the character which under our statute would raise that issue. And, tlie court not submitting the issue of manslaughter, of course, it was not necessary nor proper to submit to the jury the question of whether or not they would suspend the sentence; for the jury is not authorized to do so in a murder case.

The judgment is affirmed. 
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