House v. State , 42 Tex. Crim. 125 ( 1900 )

DAVIDSON, Presiding Judge.

Appellant was convicted of murder in the first degree, and his punishment assessed at confinement in the penitentiary for life.

Ellis House, owner of defendant when a slave, testified that the general reputation of appellant in the community in which he, lived was good for peace and quietude; that he was a law-abiding citizen, and that his reputation was good as well for truth and veracity. Defendant failed to testify in his own behalf, whereupon the county attorney moved to exclude the evidence of the witness in regard to his character for truth and veracity. The court not only excluded this phase of the testimony, but also that which related to peace and quieture. As a reason for admitting the testimony as to veracity, the court informed the jury that he expected testimony would be offered which would make said evidence pertinent; but, this not having been done, the evidence of the witness was excluded from their consideration, “and it was all put out;” not only that with reference to truth and veracity, but also as,to character for “peace and quiet.” Exception was reserved to this action of the court. It is not necessary to discuss the ruling of the court with reference to the exclusion of the testimony in regard to appellant’s character for truth and veracity. In criminal cases, wherever a criminal intent is the essence of the offense, evidence of general good character of the accused as a law-abiding citizen is relevant, and therefore admissible in his behalf, and is to be considered by the jury as any other evidence in determining whether or not his guilt has been established beyond a reasonable doubt. This character of testimony is always admissible in his behalf whether the evidence leaves the case in doubt or not. Of course, this can only be put in issue by defendant. For collation of authorities, see White’s Ann. Code Crim. Proc., sec. 1092, subdivs. 2, 3. The court’s action was clearly error. Why this testimony'was excluded is not explained by the bill, if in fact it could be explained.

This case depended upon circumstantial evidence. One of the strongest facts relied upon by the prosecution was the finding of what the witnesses thought to be blood on one of the'barrels of a shotgun. The theory of the prosecution'was that this gun was used as a bludgeon in the perpetration of the homicide. Some hair was connected with this blood. The case was tried several times, resulting each time in a hung jury, "until the last trial. This “blood and hair” theory was the subject of investigation upon each. The testimony grew stronger at each recurring trial in regard to the hair. Upon the first trial the hair; was said to have been very short, and of a dark color. At the succeeding trial it was a little longer, and of a little lighter color; and finally upon the last trial it had grown to be three or four inches in length, and of a decidedly light color. These witnesses were contradicted upon the last trial by their evidence upon former trials. On the last trial one of appellant’s attorneys, to test this matter, secured several hairs from the tail of a stuffed squirrel, and others from the mane and tail of a horse. These were exhibited to the jury in connection with the testimony of these witnesses. One or more of them testified that the hair from the squirrel was human hair, but expressed some doubt in this respect as to the horse hair. Under this state of case, counsel for appellant proposed to hand the jury the hair, and let them personally inspect it. This was refused by the court, and in such manner as to decidedly reflect upon the counsel who obtained the hair. The court then took the hair, inclosed it in an envelope, and ordered it to be kept by the clerk. The court, in explanation, says: “The hairs were put in an envelope to preserve them separately, to enable the court and jury to identify the hair as testified to by Sparkman. The court refused the jury to inspect the hair before retiring with the case, not as it always does any like evidence in any case.” It is a little singular why the hair should have been inclosed in an envelope for the purpose of being identified by the jury, when they were absolutely prohibited from even seeing or inspecting it. Nor does the court explain why this rule was different in this case from his rule in other cases. Whenever it serves any purpose in the case, all such testimony as clothing, diagrams, documents, and evidence of that character shall be permitted to go to the jury; and we see no reason why this testimony should have been excluded, or this case furnish an exception to the rule. ' For collation of authorities in this respect, see White’s Ann. Code Crim. Proc., secs. 1074, 1075. The contention of appellant was that, if blood and hair were found upon the gun, it came from squirrels killed a day , or two prior to the homicide. If this was true, one of the most potent facts, if not the most cogent fact, in the case was elucidated and eliminated. This was very important evidence for the appellant. The action of the court with reference to the matter should not have so occurred. It was error. The judge may violate the provisions of the procedure as well by actions as by words, and he must not convey to the jury any criticism calculated to injure the rights of the accused any more by acts than by words in regard to the testimony of the witnesses; hence his reflections upon counsel should not have been indulged. For the„ action in regard to the matters discussed, the judgment is reversed and the cause remanded. The testimony ,is of a very inconclusive and unsatisfactory character.

Reversed and remanded.