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venue in this case. Doubtless there are men state. We think it is made sufficiently to apin Cherokee county who never heard of this pear from the evidence that the deceased, at case, and it is without question that even the time the declarations offered were made, those who had, if selected as jurors, would was properly imbued with the belief of the attempt to lay their prejudice aside and try near approach of his dissolution, and that the case upon its merits, but neither of these the objections upon that issue were fully questions were the issue.

met. We do not think that the record shows [4] The Bill of Rights, under the head of any such leading or pressing in order to in"Guaranties” (article 1, § 10, Constitution), duce the declarations as to reject them on provides: "In all criminal prosecutions, the that score, and the court was not, therefore, accused shall have a speedy public trial by in error in admitting the declarations in genan impartial jury." This is intended to be eral. a guaranty. It doesn't mean that 11 of the [5] We do not think, however, that the adjury should be fair and impartial. It doesn't vice given by the witness Messer to the demean that the district Judge shall force the ceased, to the effect that he ought to have defendant to trial with the hope of securing known better than to go out there, should a fair and impartial jury. But it does mean have been admitted. that he must not put him to trial in a coun- [6] 412. We think the court erred, as ty unless the circumstances and conditions shown in bill No. 15, in permitting for any of the public sentiment are such that he feels purpose the declarations of the deceased that able to give an absolute assurance that nei. "he was shot down like John Ross." This ther by accident or design will any sentiment could but be an opinion of the deceased. If against the accused creep into the jury box, the deceased had not died and had been on except such alone as is raised by the tes- the stand testifying, he would not have been timony heard upon the trial. The verdict permitted to have given such testimony; of the jury should reflect the testimony in that is, that he was shot down like John the case.

The reflection should be a perfect Ross. We understand the rule to be that the one, not a distorted or imperfect one. One knowledge of approaching dissolution is subcrack in the mirror, one ripple upon the sur- stituted for the solemnity of the oath, but face of the pool, is sufficient to destroy the that in all other respects the general rules trueness of the reflection. One improper ju- of evidence apply, and that an opinion or ror destroys the integrity of the verdict. conclusion is no more admissible as part of Where the great majority of the citizenship a dying declaration than it would be if the of a county is shown to be conversant with witness was upon the stand personally testia case, and their minds have been poisoned fying. It is urged by the state that this teswith wild rumors against the accused, which timony was not hurtful to the interest of appossibly might not be admissible as evidence, pellant, as there is nothing in the record where they have heard of his former con- showing how John Ross was shot down, or viction, and where general public sentiment that the jury were conversant with any of is in the condition as the testimony in this the facts surrounding his death. To so hold, case indicates, we think it indeed a risky we think would be an uncalled for reflection thing to undertake to guarantee an impartial upon the prosecution in this case. They were jury under such conditions.

insistent upon the admission of this evidence As said by Judge Henderson in the Cor- even after objection had been made; and in tez Case: "Prejudice is a sinister quality; the absence of testimony, either one way or and the very persons whom it actuates may the other, for us to presume it was not helpbe unconscious of its existence.” Witnesses ful to the cause which they represented and frequently testify that they believe an ac- injurious to appellant's cause before the jury cused could get a fair trial, and in this they would be a conclusion which we would not are honest. They are not given an opportuni- feel justified in indulging. The evidence was ty, or possibly called upon, to express their not accidentally, incidentally, or inadvertentfurther opinion that with them a fair trial ly introduced. would mean the penitentiary or the gallows. [7] Where evidence of this character is inAs was held in the Randle Case, prejudice, tentionally and deliberately introduced in the referred to in the statute, does not necessa- record, and there is nothing in the record to rily mean the prejudice against the defend- disclose what its weight or effect would probant, but may and often with equal force does ably be before the jury, and it is of such a mean prejudice against his case. If upon an- character as could reasonably be hurtful, we other trial appellant should present his ap- feel that it is the duty of this court to preplication for a change of venue, and upon sume that the party offering it was acting contest make substantially the same showing, intelligently, and that the evidence so offered as made upon this hearing, the venue of the was helpful to the one and hurtful to the case should be changed. Randle v. State, 34 other. Tex. Cr. R. 43, 28 S. W. 953; Cortez v. State, [8] 5. Bill of exceptions No. 6 is an objec44 Tex. Cr. R. 169, 69 S. W. 536.

tion to the admission in evidence, at the in4. Bills of exceptions 4, 5, and 15 present stance of the state, of a judgment nisi, renquestions relating to the admissibility of the dered in January, 1913, declaring a forfeiture

for trial. Evidence of flight is ordinarily ac- , understand how the effect of an affidavit incepted as an indication of guilt, and is ad- voking the benefits of the suspended sentence missible. So also, upon the same theory, law could be so far misinterpreted. The con. would be evidence showing or tending to show viction of a felony, referred to in that statthat appellant had intentionally absented ute, means a final conviction. The statute himself from court in order to avoid a trial was passed for the benefit of those upon trial of his case. The judgment nisi, however, for their first offense. It was intended as a was an ex parte proceeding, having no legal beneficent statute, and not as a license to weight or effect except in the matter of the deprive one of a fair and impartial trial for bond forfeiture, and legally establishing no which the Bill of Rights stands guarantor. conclusion. For these reasons it should not It is true when one files an affidavit under have been admitted. It was taken in the ab- this statute he opens the question of whether sence of the accused, without an opportunity or not he has ever before been finally convicton his part to be heard on the issue. It was ed of a felony. He may also, if he sees fit, not, and could not have been, a final adjudi- and has especially invited it in the affidavit, cation of any fact, and was therefore, as in this way put his general reputation in stated, not admissible. The state, upon this issue. But the fact that he puts in issue the issue, should be confined to evidence of the question of whether or not he has ever been defendant's flight or intentional absence, and convicted of a felony by no means places upon should not be permitted to bolster the same him the necessity of carrying the additional up by an ex parte proceeding of the court. burden before the jury that a former jury,

[9] 6. The evidence discloses that some upon a former trial of this same case, had rething like two months prior to the homicide turned a verdict of guilty, which for some the deceased and two of appellant's younger reason had been vacated. This was clearly brothers engaged in a difficulty or fight, which not the intention of the law. We are not appears to have grown out of “fixing a fence.” sure that we quite understand the position As growing out of this difficulty, it is alleged of the state in its brief with reference to this that deceased made some threats in the in- most grievous and unnecessary error. In tervening time between then and the homi- one place they say, in substance, that by the cide, and this difficulty is one of the things affidavit for suspended sentence the issue of that appellant claims he called deceased former conviction was open, and "for this aside for, at the time of the homicide, to talk purpose the question asked appellant by the to him about. The merits of this difficulty, state's counsel was a proper and legitimate as such, are not material to any issue in this one, and the fact that appellant may have case; but the state, upon one hand, contend- misinterpreted it and made the answer which ed for malice on the part of appellant, and, he did should not result in a reversal of the on the other hand, manslaughter, and the case, and this even though the fact had not necessary adequate cause were in part ap- already been well known to the jury as a repellant's defense to the charge of man- sult of appellant's conduct of the trial." The slaughter. Then any knowledge or informa- inference, as we read it, intended here is that tion brought home to appellant concerning by mistake the defendant answered with refthis difficulty between his brothers and de- erence to his former conviction in this case, ceased would be evidence, in view of these when such was not the purpose of the query. contending theories. In view of the fact that The bill of exceptions flatly contradicts this the case is being reversed, it is not necessary position, for it says the state was permitted for us to pass upon defendant's bill of excep- to ask defendant "if it was not a fact that he tions objecting to the admission of evidence had before been convicted upon a former trishowing that his brothers were convicted in al in the case now being tried." the justice court of assault growing out of [11] The state then in its brief takes the this difficulty with the deceased. The rule position that, inasmuch as the jury already above announced will be sufficient to govern knew of appellant's former conviction, and the admission and rejection of evidence on inasmuch as defendant had testified in anthis issue upon another trial.

swer to questions from his own counsel that [10] 7. By bill of exceptions No. 8 it is he had never been convicted of a felony, etc., shown that, while appellant was on the stand that, “rather than being hurtful to the deas a witness in his own behalf, the state was fendant from the peculiar facts of this case, permitted to ask him if it was not a fact that it seems to us to have offered him an opporhe had before been convicted upon a former tunity to explain what he meant by convictrial in the case now being tried.' Timely tion and to relieve him of the danger of the and full objections were made by his counsel, jury thinking he had made a false statement but were overruled by the court, and defend when he said he had not been before conant was required to testify before the jury victed of a felony.” But how did the jury, that he had been convicted upon a former tri. as such, have any evidence of his former al in this case. The only qualification to this conviction? Why should an accused be bill is that it was admitted under the de- wrongfully placed in the position that he is fendant's plea of suspended sentence, and called upon to explain something that the that it is qualified by the charge of the court. jury should in no event, have ever known? of this latter we will see later. We do not | True, the state says that appellant accepted

some jurors after they had testified upon , der circumstantial connection, the circumtheir voir dire that they had heard of the stances should be sufficient to meet the test former conviction. We do not know to what of certainty required in cases of circumstress appellant was driven in accepting ju-stantial evidence. What we have here said rors, but, admitting this contention of the also disposes of the bills with reference to state, these several jurors could not legally appellant going backwards and forwards to impart their personal information to the re- his field and at times having a gun in the mainder of the jury. Again, the state inti- wagon. There is no evidence in this record mates in its brief that by the defendant's con- to show that this gun was being carried for duct of the case this information of his former the deceased, or even that it was in the perconviction had already been brought before sonal possession of the appellant. There are the jury. We do not so read the record. True some other similar questions to the two appellant had filed certain pleas setting up above in the record, and they will be conhis former conviction of second degree mur- trolled by the rule here announced, and will der as an acquittal of any grade of offense not be admitted unless there is first introduchigher than manslaughter; but all of these ed evidence showing that they had some real various pleadings and motions relative to this connection with, or bearing upon, the homiissue were disposed of, as we understand it, cide. without the intervention of the jury and be [13] 9. There are two bills of exception with fore the jury had been impaneled; in fact, reference to the testimony of the witness before the application for change of venue Fitch. It appears that appellant was not had been overruled. This condition here present in court one time when his case was shown but illustrates the reason why the set for trial, but that, instead of being in change of venue should have been granted.court, he was Louisiana, and his bond was No man should ever be tried before a jury declared forfeited. According to Mr. Fitch's who knew, or any part of whom knew, that a testimony, after appellant returned he apprevious jury had convicted him upon a for- proached him (Fitch) and apologized to him mer trial of the same case. It is true jurors for not telling him in advance about his inmay say that this knowledge would not affect tended trip to Louisiana, and in this connecthem and that they could lay it aside, but tion told the witness that he did not blame we know human nature too well, and the first him for not again becoming his bondsman. impression is too strong to be thus lightly It seems by one of the bills of exception this disposed of. It was error to admit this fact testimony was admitted as original evidence, in evidence, or even any reference to it, and and by another admitted for the purpose of it was of such a prejudicial character that impeaching appellant and for which a prediwe see no way that the court could have cate had already been laid. This evidence cured the error after it was once injected. could only have been admitted originally for As to what effect it had, the two verdicts the purpose of showing that appellant had themselves are a fair indication; the first intentionally avoided being present for trial was a 10-year penalty and this last penalty at the time set; in other words, as showing was fixed at 11 years' confinement.

an attempt to avoid trial under the indict[12] 8. The testimony of Mrs. Streight was ment. We see nothing in this particular testo the effect that some time subsequent to timony to indicate or tend to show that such the difficulty between deceased and defend-was appellant's purpose in going to Louisant's brothers and before the homicide she iana. The mere fact that he apologized to passed along the lane running between the his bondsman for not telling him in advance field of deceased and the field of defendant's of his intended trip is no indication, as we father, and that as she passed she saw de- see it, that he had made the trip with no fendant near the fence of deceased in a skirt intention of returning in time for trial. Not of woods with a gun, and that the fence of being admissible as original evidence, upon deceased was up as she passed, but as she the ground that it was not material to any later returned the fence of the deceased was issue in the case, no predicate and impeachdown. There is nothing in the bill of excep-ment could be laid and met by it. Unless tions, nor so far as that is concerned in the there is something more to this testimony statement of facts, showing that this incident than is shown by the bill of exceptions and had any connection whatever with the homi- something sufficient to at least amount to an cide. Its tendency was prejudicial, and the intimation that the defendant had willfully court by admitting it necessarily led the jury left with no intention of returning in time to believe that it was material upon some for trial, then this evidence upon another issue. We see no inference that the jury trial should be excluded. could have drawn from this testimony except [14] 10. The court did not err, as one prejudicial to the rights of the defend- plained of, in bill of exceptions No. 12, in ant. Testimony of this character should admitting the testimony of Jim Martin, to never be admitted, unless there is either the effect that in a conversation with appelsome direct or adequate circumstantial con- lant a short time before the homicide the apnection between the incident offered in evi- pellant said “he did not want any trouble dence and the occurrence concerning which with the deceased, but if they did have trouthe trial is being had. To be admissible un- ble it would be serious trouble; that he


would kill out the entire crowd, and then, testimony should be rejected. Holley V. the court could do with him as they pleased." | State, 39 Tex. Cr. R. 307, 46 S. W. 39; Gaines

[15] While this testimony was offered out v. State, 53 S. W. 625. of the regular order, still, if admissible, its [17] 12. Bills of exception 16 to 18, incluadmission out of order was a matter within sive, are objections to the introduction of the discretion of the trial court, unless abuse parts of the conversation between the appelis shown. We see nothing to indicate that lant and deceased at the back gallery just the court abused its discretion in this mat. prior to the homicide; the chief objection be ter. On the contrary we think this ruling was ing that some of the statements made by the correct and proper under the circumstances, deceased were merely opinions, and others and we further think that, if there be any that the questions were leading. This was objection at all to the testimony, it would the conversation between the parties, and go to its weight rather than to its admis- was, of course, admissible just as it occurred, sibility.

without reference to whether it was compos[16] 11. By the witness Rooks it was shown ed of opinions or statements of facts. Some over appellant's objection that he was press of the questions were rather leading, but this ent in the town of Troupe on Saturday even- cannot always be avoided, and is a matter ing (the homicide occurred that night) when largely for the discretion of the trial court. appellant received his pistol from the man who 13. While there seems to be no exception to had repaired it for him; that the pistol was in the second paragraph of the court's charge a box; and that appellant threw the box up under the head of justifiable homicide-that containing the pistol and caught it in his is, the paragraph instructing the jury about hands, remarking at the time that he would resorting to other means, retreat, etc."use that gentleman that night." Appellant yet, in view of another trial, we think it upon cross-examination had denied making proper to suggest that we do not think that this remark, and we presume that the evi- the evidence in this case calls for said paradence was offered both as original and im- graph; nor was the paragraph, with referpeaching testimony; for, if admissible as one, ence to the presumption arising from the it was admissible for both purposes. As stat. use of a deadly weapon by the deceased, ed before in this opinion, testimony of this called for by the facts in evidence. character is only admissible when there is 14. There is some criticism of the court's other evidence tending directly to show with charge for submitting the case to the jury reasonable certainty that the remark had under the murder statute as it now exists, application to deceased, and that the appel- and we think that the criticism is correct to lant, at the time he made it, had the deceas- the extent that under the decisions of this ed in mind; an accused is not to be tried for court since the passage of the new murder every idle remark which he may make. statute, in cases in the condition this case is There are other things in unlimited numbers in, the defendant should be tried under the which he might have had in mind as the ob- old second degree murder statute and for ject of this remark other than the difficulty manslaughter. As stated, this court has with the deceased. There is no evidence in passed on this question in several cases, and the record tending to show that appellant it is not now open. See Shaw's Case and knew that deceased would be at the ice-cream other cases cited supra. In view of the fact, supper that night, even if appellant had al- however, that under the established law of ready made up his mind to attend. There is this state a person who has been convicted nothing in evidence to show that appellant of murder in the second degree and thereby had any right to anticipate a meeting with acquitted of murder in the first degree can the deceased that night. Even if true, none thereafter be convicted of second degree murof these things could indicate with any de- der on the testimony showing conclusively gree of certainty that deceased was the ob- a first degree homicide, we fail to see how ject of the remark. There is evidence that this error could be injurious to the defendthe deceased was not in the habit of attend- ant. ing entertainments of this character. True, (18) 15. Appellant also makes the contennone of these things that we are discussing tion that the facts in this case do not raise are in the bill of exceptions, and possibly the issue of provoking a difficulty, and that we, strictly speaking, are violating the rules the court erred in submitting this issue to the in going outside, but, if that be true, it is jury. In this connection he makes further equally true that there is absolutely nothing complaint on the manner in which the issue in the bill of exceptions to indicate that the was submitted, if it be held that provoking testimony was admissible. However, we are a difficulty was in the case, and of the court's discussing this question now not so much for refusal to give his special charge upon this the purpose of passing upon the bill of excep-subject. From a reading of a great many tions, but, on the contrary, in view of anoth- cases we understand that the following comer trial. Upon another trial, unless there bination of facts must exist before a charge be evidence introduced tending to show with on provoking a difficulty or abridged right reasonable certainty that the deceased was of self-defense is called for or permitted: the ultimate object of this remark, then this (1) The interview or meeting must be

sought by the defendant for the purpose of difficulty is provoked, but with no intent to provoking a difficulty. Shannon v. State, 35 kill or do serious bodily injury, and the one Tex. Cr. R. 2, 28 S. W. 687, 60 Am. St. Rep. provoking the difficulty is driven to the ne17; Airhart v. State, 40 Tex. Cr. R. 472, 51 cessity of killing in protection of his own life S. W. 214, 76 Am. St. Rep. 736.

that he is in such a case only guilty of man(2) When the meeting occurs the defendant slaughter. We have carefully considered the must do some act or use some abusive and evidence bearing upon the question of proinsulting language to the deceased or injured voking a difficulty to first determine whether person reasonably calculated to provoke the such issue is in the case. difficulty. Hjeronymus v. State, 46 Tex. Cr. In addition to the statement of the case R. 161, 79 S. W. 313.

made in the beginning of this opinion, we (3) The act or acts done or abusive cr in- state the further facts shown by the record sulting language used must be done or used, to be in evidence. The state's witness Joe as the case may be, with the intent of pro- Hamilton testified that the appellant went to voking the difficulty. McCandless v. State, the deceased, who was sitting on the edge of 42 Tex. Cr. R. 61, 62, 57 S. W. 672, 674. the rear porch or steps of Mr. Messer's

(4) The act or language just referred to house on the night of the ice-cream supper, must actually provoke a difficulty in which and further testified as follows:. the deceased or injured party is the aggres

“Pearl just told Tom to come on out, that sor. McCandless v. State, supra.

he wanted to talk with him. Tom told Pearl,

'No'; that he did not want to go; that he wantSome of the cases hold that the courted to get him out there and kill him. Pearl should point out in his charge the evidence then said 'No'; that he only wanted to talk upon which the charge on provoking a dif- with him. Tom then went on with Pearl.” ficulty is based. Carter v. State, 37 Tex. Cr. This witness further stated that Pearl in R. 403, 35 S. W. 378; Mozee v. State, 51 s. that conversation told Tom (meaning the deW. 250. But this rule does not appear to ceased) “that if he was as game as he used have met with approval in later cases, the to be that he would come,” and that Pearl fear being expressed that it approached too then went. near a charge upon the weight of evidence.

By another witness it is shown that when In the McCandless Case, above cited, it is said the appellant asked the deceased to go out that the charge should be couched in gener- with him, that the deceased got up and real terms, and that the court “should instruct plied: the jury in effect that, if the defendant sought

“If he wanted to fight to fight there, and Sorthe occasion for the purpose of slaying his rell said, 'No, we will go out here; I just want adversary (if he did so), and, having found to talk with you.' Tom said something then, him, did some act or used some language, or

but I did not hear what it was, and then Sor.

rell said, 'If you are as game as you used to did both, as the case may be, with the intent be, you will go with me, and they then went to produce the occasion and bring on the on together." difficulty, and that the same, under the cir

This is a sufficient statement of the state's cumstances, was reasonably calculated to theory of what was said there. produce a difficulty, and on such account

The appellant's theory, with reference to his adversary attacked him, and he then this conversation, is probably best shown by killed his adversary in pursuance of his his own testimony upon this point. He conoriginal design, then such killing would be tended that he had heard of threats made by murder."

the deceased against him and of the difficulty [19] The above, however, was not there giv- which the deceased had had some time in the en, nor is it here given, as a form for a spring with appellant's two younger brothers, charge, but is merely a suggestion of the es- and that he had never seen the deceased unsential elements. Most all of the cases an

til the night of the ice-cream supper; that as nounce the rule to be that, before a court is he (the appellant) went out to the well and justified in charging upon provoking a dif- started back he saw the deceased sitting ficulty at all, he must be able to point out def- there, and walked up to him and told him initely “to put his hand, on" the testimony that he would like to talk to him. which justifies the charge. Some of the cas

I wanted to talk to him about the threats es speak very reverently of "the inalienable that he had made about my life. Mr. Cox and right of self-defense,” and suggest that the Mr. Jennings had told me about his threats rule in cases of provoking a difficulty or an

against me. I just wanted to ask him about

those threats, and also about the way be had abridgment of this right in any wise can been treating my minor brothers. When I told only be justified upon the ground of estoppel. him that I wanted him to come on and have a Some of the older cases say that it is based talk with me, or that I wanted to talk with upon the legal maxim that, “A man may not him, he just raised up and said, "No; if you

want to fight fight here. I then told him I take advantage of his own wrong to gain fa- did not want to fight him; that I just wanted vorable interpretation of the law; he seeks to have a friendly conversation with him. He the law in vain who offends against it.” And then got up, and me and him left there and others, “That one cannot willingly and know. went out towards the gate.” ingly bring upon himself the very necessity By all the evidence it is shown that they which he sets up for his defense." All of the walked off apparently friendly, side by side

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