Roberts v. State

Citations

• 5 Tex. Ct. App. 141

Syllabus

<p>1. Jury— Special Venire. — The law of 1876 makes no provision as to the course to he pursued in supplying juries in capital cases after the special venire has been exhausted, as provided for in section 23.. Nor does that law repeal all of the previous laws upon the subject of selecting and empanelling juries, but such only as conflict with its provisions. Verbal order of the court to the sheriff to summon talesmen, out of whom to complete the jury, after a special venire and the jury-box were exhausted, is not error.</p> <p>2. Same.—It is too late after verdict to complain that accused has not been served with a copy of an indictment, and special venire.</p> <p>3. Evidence—Murder.—Evidence to prove the violent character of the deceased, in the absence of proof that the accused was in danger of bodily harm at the time of the killing, was properly excluded.</p> <p>4. Practice.—This court will not reverse the action of the court below in admitting or excluding evidence, unless it appears that objection was made when it was offered, and bill of exceptions reserved.</p> <p>5. Dying Declarations, made under the restrictions of the statute, find stating the circumstances under which the declarant received the mortal injury, may be given as evidence in a prosecution for killing him. Nothing can be evidence in a declaration in articulo mortis that would not be evidence if the party were sworn. What the person in articulo mortis said as to facts is admissible, but not what he said of opinion. “S. It. killed me for nothing ” states a fact, beyond opinion, and is admissible.</p> <p>6. Same. — The substance of the declaration may be given in evidence, if the witness cannot give the precise language.</p> <p>7. Murder — Charge of the Court. — It would have been error on the part of the court if it had instructed the jury on manslaughter, when the evidence showed the offence to be murder, in either the first or second degree.</p> <p>8. Same — Degree and Malice. — The court instr