
    STORY v. STATE.
    (No. 10547.)
    Court of Criminal Appeals of Texas.
    June 15, 1927.
    1. Homicide <&wkey;!66(8) — Testimony showing intimacy between defendant and deceased’s wife held admissible in homicide case.
    In prosecution for murder, testimony tending to show relations and intimacy between defendant and wife of deceased and their conduct with and towards each other on various occasions held, admissible.
    2. Homicide <&wkey;l58(3) — Testimony that defendant had threatened to kill man that married particular woman, which deceased did, held admissible in prosecution for murder.
    In prosecution for murder, where defendant’s liking for a Mrs. M., who later married decedent, was shown, testimony that particular witness overheard conversation between defendant and his wife a few days before the marriage of deceased and Mrs. M., in which defendant said that he would kill the man that married Mrs. M., held admissible.
    3. Criminal law <&wkey;35l(IO) — In homicide case, testimony that defendant took deceased’s wife and children out of state held admissible to show effort to suppress testimony.
    In prosecution for murder, testimony that, after the homicide, defendant took deceased’s wife and children out of the state-in his car, held properly admitted for purpose of showing an effort on part of defendant to suppress material testimony.
    4. Witnesses <&wkey;52(5) — Testimony that defendant’s wife before homicide, speaking of deceased’s wife, said, “Yes; he [defendant] thinks more of her to-day than he does of me and the children,” held inadmissible.
    In prosecution for murder, testimony that defendant’s wife shortly before killing, referring to deceased’s wife, said, “Yes; he [defendant] thinks more of her to-day than he does of me and the children,” held improperly admitted, in violation of rule forbidding use of wife’s testimony against her husband.
    5-. Homicide <&wkey;>216 — Testimony that deceased, mortally wounded, said to his wife, “Woman-, I love you, and would die for you,” held inadmissible as predicate for admission of dying declaration.
    In prosecution for murder, testimony that deceased, while lying on bed after being mortally wounded, said to his wife, “Woman, I love you, and would die for you,” held improperly admitted. to show consciousness of impending death, as part of predicate for admission of dying declaration made thereafter.
    6. Homicide <&wkey;209 — Statement written by county attorney, but not signed, approved, or affirmed by deceased, held inadmissible, as dying declaration.
    In prosecution for murder, statement written on piece of cardboard by county attorney, based on questions asked decedent and his answers thereto, held improperly admitted in evidence, as a dying declaration of deceased, where not signed by him, or approved, or affirmed by him in such way as to make the declaration his own.
    7. Homicide <&wkey;209— Document offered as dying declaration need not have been signed, but must have been approved or affirmed by deceased in some way.
    While it is not absolutely necessary to show that a document offered as a dying declaration was signed by deceased, the contents of the document, if not signed, must appear to have been made known to deceased, or read by him and approved, or affirmed in some way so as to make the declaration his own.
    8. Homicide <&wkey;218 — Surroundings may be looked to to show statement offered as dying declaration was made in view of impending death.
    It is not necessary that deceased say in so many words that he expects to die in order for statement then made to be admissible as dying declaration, provided surroundings, pri- or statements, his condition, appearance, suffering, etc., indicate that statement was made in view of impending death.
    9. Criminal law &wkey;>777 — Jury should be instructed not to consider unsigned written statement offered as dying declaration of deceased, unless contents were made known to deceased, and affirmed or approved.
    In prosecution for murder, where written statement offered as dying declaration of deceased is not signed, court should instruct that instrument should not be considered, unless the contents were in some way made known to deceased, and affirmed or approved by him.
    Appeal from District Court, Cooke County; W. S. Moore, Judge.
    N. A. Story was convicted of murder, and he appeals.
    Reversed, and cause remanded.
    Culp, Culp & Culp, of Gainesville, and Boyd & Boyd, of Denton, for appellant.
    J. L. Gettys, Co. Atty., of Gainesville, F. H. Chandler, of Stephenville, Elbert Hooper, Co. Atty., of Denton, and Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst; State’s Atty., both of Austin, for the State.
   LATTIMORE, J.

Conviction of murder; punishment,. 99 years in the penitentiary.

John Morris and his wife lived on appellant’s place. Appellant was a frequent visitor at their home. In 1923 Morris and his wife separated. A witness testified that after their separation appellant was at the Morris home where Mrs. Morris lived, nearly every day. In November, 1923, Mrs. Morris married deceased, Fred Crain, who was killed by appellant on the 29th of January, 1925. The deceased and his wife and her children had continued to reside upon the place of appellant. The state’s theory with regard to motive was that appellant was in love with the wife of deceased, and that there had been long continued intimacy between them, and that appellant was jealous of and disliked deceased. A large number of bills Were taken to testimony showing the relations and intimacy between appellant and the wife of deceased and their conduct with and toward each other on various occasions. Without discussing the particulars of any of these bills, we think the testimony admissible.

A witness testified to having overheard a conversation between appellant and his wife a few days prior to the marriage of deceased and Mrs. Morris, in which appellant said that he would kill the man Mrs. Morris married. We think-this admissible. The bill contains no statement made by appellant’s wife on that occasion.

There is testimony showing that subsequent to the homicide appellant went in his car to where Mrs. Crain and her children were, and took them from the state of Texas into Arkansas, but the bill complaining of this testimony is qualified by the court, with the statement that this was but a short time prior to the setting of the case against appellant, and that the testimony was admitted as showing an effort on his part to suppress material testimony. The bill presents no error.

Mrs. Shellhorse swore that a short time before the killing she saw the appellant and his wife engaged in conversation, and that Mrs. Story, wife of appellant, referring to Mrs. Crain, wife of deceased, said:

“Yes; he thinks more of her to-day than he does of me and the children.”

The admission of this testimony seems clearly violative of the rule forbidding the use of the wife’s testimony against her husband, and the testimony should not have been admitted.

After the shooting, and after appellant had left the scene of the homicide, deceased was carried into his house and put on a bed. Mrs. Shellhorse was permitted to testify that deceased then said to his wife: “Woman, I love you, and would die for you.”. The learned trial judge certifies in his qualification to the bill of exceptions complaining of the admission of this testimony, that he admitted same as showing the consciousness of impending death on the part of deceased, and that same was part of a predicate for the admission of a dying declaration made thereafter. We perceive nothing in the language complained of indicative of any expectation of impending death. It rather strongly expressed the affection of deceased for his wife, but nothing beyond. Its only effect here would be to stir and appeal to the sympathy of the jury. It should not have been admitted.

The most serious matter complained of appears in bill of exceptions No. 17. The state was allowed, over objection, to introduce a piece of cardboard on which the county attorney of Denton county had written a statement of deceased, which statement so written on said cardboard was admitted in evidence as being a dying' declaration by deceased. The following statement of facts is taken from said bill:

“This statement was written on a piece of cardboard, and the state’s evidence showed that the alleged statement was reduced to writing by the county attorney from questions asked the said Fred Orain and from his answers thereto, and the same was not read over to the said Fred Orain, nor read by him, nor shown to him, nor approved by him as his statement after the same was so reduced to writing, and the said written statement was not signed by the said Fred Orain, or by any one for him.”

Said cardboard statement was objected to because not signed by deceased, not shown to have been given under circumstances or in the manner required by law, nor made under consciousness of impending death, and no sufficient predicate having been shown. While it is not absolutely necessary to show that a document offered as the dying declaration was signed by the deceased, the contents of the writing, if not signed, must appear to have been made known to deceased, or read by him and approved, or affirmed in some way by him as being his declaration. This doctrine seems plainly laid down in Hunter v. State, 59 Tex. Cr. R. 439, 129 S. W. 125, and Phillips v. State, 50 Tex. Cr. R. 127, 94 S. W. 1051, from which authorities we deduce that such writing is but a memorandum, and that the oral testimony of what was said by deceased which formed the basis for the memorandum was admissible as a dying declaration, but such memorandum unsigned and unapproved was not so admissible.

It is not necessary that deceased say in so many words, when he makes a statement offered as a dying declaration, that he expects to die. The surroundings, as well as prior statements, and in many cases testimony of others as to his condition, appear-anee, suffering, etc., might be looted to to meet the requirement of our law that the statement must be made in view of impending death. However, we know of no case holding a writing such as the one under discussion to be admissible, though same might be used to refresh the recollection of the witness. Appellant also cites in support of his objection to its admission State v. Sullivan, 51 Iowa, 142, 50 N. W. 572; Green v. State, 43 Fla. 552, 30 So. 798. We think, under the facts here, the writing should not have been admitted.

Appellant asked the court to give a special charge to the jury telling them that they could not consider the statement introduced as the dying declaration, unless said statement had been read over to deceased and approved by him. When the alleged dying declaration is in writing, as in this case, and especially when same is not signed by deceased, it would appear proper to give an instruction such as that contained in the requested charge in 'this case, in substance, if not in the exact language set out. The jury should be told that, in order to make the written instrument offered admissible in evidence, and to be considered by them as a dying declaration, the contents of same must have been in some way made known to deceased and must have been affirmed or approved by him.

For the errors mentioned, the judgment will be reversed, and the cause remanded. 
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