Warren v. State

Citations

• 9 Tex. Ct. App. 619

Syllabus

<p>1. Declarations as Res Gestie. —In a trial for murder, a State’s witness was allowed to testify that from a distance of a hundred and fifty yards he saw the deceased when he was shot and fell, and that he went immediately to the deceased and inquired how he shot himself, and deceased replied, “ I did not do it; I was shot from up yonder,” and indicated by a motion that he meant from an adjacent mountain. Held, that this testimony was legitimate as proof of res gestee, and was therefore admissible without the predicate necessary to the introduction of dying declarations.</p> <p>2. Dying declarations may be communicated by the deceased otherwise than by articulate speech; but, however expressed, they must relate facts which the deceased, if himself the witness, would be competent to attest.</p> <p>3. Same. —It is only ex necessitate that dying declarations are held admissible to prove such facts as the res gestee, the identity of the culprit, and the like. They are not competent to prove former or extrinsic transactions, nor to show the mere opinion or belief of the deceased; and, a fortiori, a witness’s opinion as to what the deceased meant by an indefinite expression is not competent evidence. See the opinion for illustrations of these rulings.</p> <p>4. Separation oe a jury before verdict, after it has been sworn and empanelled to try a felony case, is positively prohibited by the Code of Procedure, unless by permission of the court, with the consent of the State’s counsel and the defendant, and in charge of an officer. It is the officer’s duty to supply their necessary food and lodging.</p> <p>5. Verdict —New Trial. — The jury found the accused guilty of murder in the second degree, and assessed the term of his confinement in the penitentiary at the average of their several assessments. It does not appear that the jurors agreed in advance to abide the result of the computation. Held, not a verdict “ decided by lot,” nor cause for new trial, but not a commendabl