Taylor v. State , 74 Tex. Crim. 3 ( 1914 )

Appellant was convicted of murder, his punishment being assessed at life imprisonment in the penitentiary.

The facts show that appellant was in the employ of the deceased, Silliman; that he and his wife and children were boarding at Silliman's residence, as were several other parties who testified in the case as witnesses. Silliman was a lumber dealer and contractor. Appellant was a carpenter, and was employed by Silliman in building a railroad depot. There came friction between appellant and family on one side and Silliman and family on the other, with reference to Silliman's children. This had occurred two or three times, and the last occasion a day or so before the homicide. On the morning of the homicide Silliman went to appellant's room and told him he must leave his place. In other words, he must secure another boarding place and do it at once. Appellant informed him that he would do so when his month was out. The conversation was emphasized with decided feeling as indicated by the testimony. There is some conflict in the evidence as to what occurred at this conversation. Appellant's contention was, and his testimony is to the effect, that Silliman said they would settle it outside, going from where the conversation occurred out to his front yard. Appellant upon Silliman leaving got his pistol and put it about his person and went out in the yard where Silliman was and notified him of his arrival. Appellant's theory of what occurred was that deceased called him a son-of-a-bitch and emphasized the language in which the term was used, and appellant shot twice, one of the shots taking fatal effect. The witnesses differ as to whether the term "son-of-a-bitch" was used by the deceased. That was one of the conflicts of the testimony. There is some evidence also to the effect that at some previous date Silliman had suspended or stopped the work of appellant for a short time but reinstated him. To use the expression of one of the witnesses, Silliman "laid him off." This matter seems, however, to have been bridged and appellant went back to work again. It is also in evidence that appellant had chastised one of Silliman's children on two different occasions. That this seems to have been done with Silliman's consent, and there is some evidence showing that Silliman himself told appellant that he would whip his child and perhaps did do so. Appellant's wife was introduced and testified at considerable length about the matters and things occurring with reference to the children and all the matters that took place while they were boarding at Silliman's residence. She also testified that on several occasions he, deceased, undertook to take liberties with her person, and finally the evening prior to the homicide the next morning he renewed his advances to take liberties with her person. She left him hurriedly and rushed into the room where her husband was. He noticed her excited condition and demanded the occasion of her trouble. She declined to tell him and did not do so until that night after they had retired. She testified that this excited her husband very much, and that he was like a crazy man. Appellant and his wife went to breakfast the next morning; they both ate very sparingly, and in fact they testified substantially they ate nothing. Then the matters previously mentioned, wherein Silliman ordered appellant to leave the place, occurred. This is a sufficient statement of the case to bring in review two or three matters urged for reversal.

A bill of exceptions recites that after the State had closed its testimony in chief, and after the defendant had placed on the stand as witnesses, R.G. Clayton and F.O. Kelley, at which time no testimony had been introduced by the State or the defendant as to any alleged insults having been given the wife of the defendant by the deceased, and up to which time no testimony had been introduced touching any conversation between the wife of the defendant and the Rev. M.C. Bishop, that immediately after the testimony of these witnesses his wife was placed upon the stand, and her testimony is given in detail, covering several pages of the bill of exception. In her testimony she narrates the insulting conduct of the deceased, none of which she informed her husband, however, except as to what occurred the evening before the homicide. After all this testimony on direct examination, the State then took her on cross-examination, and all this occurred, the bill narrates, before the defendant had himself taken the stand as a witness. While she was testifying on cross-examination, one of the prosecuting counsel asked her whether or not she had telephoned for the Rev. M.C. Bishop, a Baptist minister, soon after the killing to come and see her. She answered this in the affirmative. The bill narrates: "I will ask you to state if it is not a fact that as soon as he came into your room where you were, if he did not say to you, ``Mrs. Taylor, this is awful. Isn't this awful?' and you said, ``It certainly is, and I don't know why my husband killed Mr. Silliman.'" Appellant urged various and sundry objections to this testimony as to its materiality, and a collateral matter, and an inquiry about a subject which was not inquired about on the examination by counsel for the defense, and the witness was the wife of the defendant on trial, and that it is a matter, if it did occur, which involved hearsay as to what some other party said, and because such an answer would be an expression of an opinion of a witness. The court overruled all these objections, and the inquiry proceeded. Her answer was: "I don't remember whether I said those words or not." And the court permitted, over the same objections of the defendant, the State to ask and required the witness to answer certain other questions in reference to the same subject matter, which is as follows: "Those are the words I want to ask you about. You can state one way or the other if you did not tell the Baptist minister in substance those words? A. I remember saying to him, ``It certainly is,' when he asked why Mr. Taylor did it I could not tell him why. Q. Did yon not tell him that you did not know what the cause was or why? A. No, sir, I don't remember that I said anything of the kind. I don't remember what I said. Q. Will you say that you did or did not say that? A. I don't remember. I do not think that I used those words. I was so excited myself. Q. You would not say one way or the other about it? A. No, sir. Q. The Baptist preacher is named Bishop? A. Yes, sir." The objections were again urged and overruled. The court qualifies this bill as follows: "The witness had in the first of her cross-examination stated that she did say to Mr. Bishop, the Baptist preacher, that she had no idea why her husband killed Silliman. She had further stated that she did know that defendant killed deceased because he had insulted her. This testimony was without objection." The bill of exceptions and this qualification are at variance, and the bill of exceptions seems to be taken from the stenographic report.

Another bill recites that before the defendant had testified in his own behalf and after the wife of the defendant had testified as follows: and then sets out her testimony again as in the previous bill, covering quite a number of pages, and which bill of exceptions recites that this was all of her testimony upon direct examination, as does this bill, and after the said witness was turned over to the State for cross-examination, and after she had testified in answer to questions by the State that she had told her husband about the insults that night after they had retired, and after she had testified that she did not tell him that night about but one insult, the State asked her why she did not tell him about the others, and she replied, "Because I didn't do it," and she was asked, "Can you give any reason why you did not?" She replied, "I thought once was enough." "You thought once was enough?" "I thought it was." The state then propounded the following questions: "When did you tell your husband about the other two insults? A. I did not tell him about the other two." Then the following question was asked by the State: "You never told your husband until you told it now upon the stand, you never told your husband about the other two until you told it in his presence now?" A great number of objections were urged to this, among others, that all this occurred while appellant was in jail from the time of the shooting until the present time; that the witness is the wife of the defendant, and that this question is about a matter which was not inquired about by the defense on her examination in chief, and not germane to anything asked witness during her examination in chief; that it involves and concerns what occurred between the husband and wife after the husband was arrested, and that the same is forcing the wife to become a witness against the husband without his consent." All of this was overruled by the court, and the witness answered, "No, sir." The bill then further recites that the court permitted, over the same objections, the following questions and answers of the witness by the State: "You are sure about that? A. I have not had a chance to talk to my husband but very little. Q. You have talked with him? A. Very little since I came back to Caldwell. Q. You have talked with him several times? A. Yes, but I say I have not talked with him very much. Q. It would not take very long to tell him that? A. Why should I tell him, once was enough. Q. When did you tell these gentlemen (indicating counsel for defense) about these insults? A. I think I have not talked with Mr. Hair very much, have not talked to him very much. Q. The question is, when did you tell Mr. Carter and Mr. Hair about these insults? A. I told them about the insults. I don't remember when it was. Q. About when was it? A. I don't even know when that was. When were you here? Q. I want you to testify about when? A. I don't know. Q. About when? A. About three weeks ago I think it was, was it not? I don't know. I don't remember. Q. You told Mr. Carter about three weeks ago about one insult? A. Yes, sir. Q. You never did tell either of them about the other two insults until you took the stand tonight? A. Yes, sir." A great many objections were urged, among others, that it was privileged communications and could not be inquired into by the State, and same had not been inquired about on the direct examination in chief, and was not germane thereto, and the court overruled each and all of these objections. This bill is signed without qualification.

Another bill recites that after Clayton and Kelley had testified for the defendant, and no testimony had been introduced by the State or defendant as to any alleged insults having been given the wife of the defendant by the deceased, and up to which time no testimony had been introduced touching any conversation between the wife of the defendant and the Rev. M.C. Bishop, then follows the testimony of Mrs. Taylor, wife of the defendant, covering several pages and same as in the previous bills of exception, and the bill recites that was all the testimony she gave upon her direct examination. Then the bill further recites that after the witness, Ida Taylor, wife of defendant, was turned over to the State for cross-examination, and before the defendant had testified in his own behalf upon the trial of this cause, one of State's counsel asked her whether or not she had telephoned for Rev. M.C. Bishop, a Baptist minister, soon after the killing to come and see her, which she answered in the affirmative. Then the following matters occurred: "I will ask you to state if it is not a fact that as soon as he came into your room where you were, if he did not say to you, ``Mrs. Taylor, this is awful. Isn't this awful?' and you said, ``It certainly is, and I don't know why my husband killed Mr. Silliman." Various objections were urged to this, covering a half page of the transcript. They were all overruled, and witness answered: "I don't remember whether I said those words or not." And the court permitted, over the same objections of the defendant, the State to ask and required the witness to answer certain other questions in reference to the same matter, which questions and answers are as follows:

"Q. Those are the words I want to ask you about. You can state one way or the other if you did not tell the Baptist minister in substance those words? A. I remember saying to him, ``It certainly is,' when he asked why Mr. Taylor did it I could not tell him why. Q. Did you not tell him that you did not know what the cause was nor why. A. No, sir, I don't remember that I said anything of the kind. I do not remember what I said. Q. Will you say that you did or did not say that? A. I don't remember. I do not think that I used those words. I was so excited myself. Q. You would not say one way or the other about it? A. No, sir. Q. The Baptist preacher is named Bishop? A. Yes, sir." Here the objections were again urged and overruled, and the bill recites: "Be it remembered that thereafter, during the progress of the same trial, the State placed on the stand the Rev. M.C. Bishop in rebuttal, who, after being duly sworn by the clerk of the court, was asked by the State the following questions: Q. What is your name? A.M.C. Bishop. Q. You are the Baptist minister here at Caldwell. A. I am. Q. The morning that Mr. Silliman was killed by Mr. Taylor, were you called by Mrs. Taylor, wife of defendant, to her residence — to the Silliman residence — to see her? A. I was. Q. Did you go? A. I did. Q. When you went to that residence did you meet her? A. I did. Q. In her room? A. Yes, sir." All of this occurred in the presence of the jury and all of which answers went to the jury. The State then asked the following question of said witness: "I will ask you if you said to her, ``Mrs. Taylor, this is awful,' and she said, ``Yes, it certainly is, and I don't know why he did it or the cause or reason for doing it?'" Quite a number of objections, and practically the same as those set forth heretofore, were urged and overruled, and the questioning proceeded: "Q. You heard the question, what is your reply? A. That conversation took place. Q. Just like I have stated it to you? A. Yes, sir." Then follows the urging of the objections again. This bill is qualified by the court as follows: "In the first part of the witness' cross-examination she stated without objection that she had made the statement to M.C. Bishop. Later on in the cross-examination she denied doing so as above set out, which was objected to as above set out, and I then allowed this testimony as above set out. The witness had also testified in her cross-examination that defendant killed the deceased because he had insulted her."

We are of the opinion that these matters were erroneous. The wife had testified to several insults, only one of which she had communicated to her husband. Any legitimate inquiry about this matter would be proper, inasmuch as the defendant had proved before the jury that his wife had communicated to him the last insulting conduct. Of course, the other occasions of insulting conduct would not affect the defendant as he had not been apprised of it. The matters occurring between the wife and her husband and counsel would be of such a nature under the conditions and circumstances of this case as would not permit the cross-examination of the wife with reference to the matters occurring between them and herself, though her husband was in jail from the time of the homicide or a few moments afterward, until the trial, and any matters that occur between her husband and herself and conversations would be privileged under the statute, and the communications between herself and her husband and counsel in reference to the preparation of the trial or matters of that sort would be also privileged.

With reference to the conversation had between herself and Bishop, it was of such a nature as was not germane, in our opinion, to her testimony that she had communicated to her husband the fact of the insult the evening prior to the killing. Counsel had not asked her as to any conversation between herself and Bishop, or what occurred between them. This was new matter brought out by the State, and could not be brought in as evidence from the wife against the defendant, nor was it the subject of a cross-examination of the wife. This direct question, it occurs to us, was decided adversely to the State in Marsh v. State,54 Tex. Crim. 144, at pages 147 and 148. The conversation between defendant's wife and Bishop forms no part of the transaction inquired of from appellant's wife in her original examination. It related to another matter altogether, and was, therefore, not receivable either for the purpose of impeachment or as a circumstance to be weighed against appellant on her testimony; and it may be further stated in this connection, as in the March case, it involved, in our judgment, the opinion of the witness as to the killing. See Richards v. State, 53 Tex. Crim. 400; Jones v. State, 38 Tex.Crim. Rep.; Messer v. State, 63 S.W. Rep., 643; Washington v. State, 17 Texas Crim. App., 197; Hoover v. State, 35 Tex.Crim. Rep.; Gaines v. State, 38 Tex.Crim. Rep.; Creamer v. State, 34 Tex. 173 [34 Tex. 173]; Greenwood v. State, 35 Tex. 587 [35 Tex. 587]; Merritt v. State, 39 Tex.Crim. Rep.; Johnson v. State, 28 Texas Crim. App., 17; Hamilton v. State, 36 Tex.Crim. Rep.; Owen v. State, 7 Texas Crim. App., 329; Red v. State, 39 Tex.Crim. Rep.; Bluman v. State, 33 Tex.Crim. Rep.; 70 Am. St. Rep., 719; Yeiral v. State, 56 Tex.Crim. Rep.; Stewart v. State,52 Tex. Crim. 273; Ballard v. State, 71 Tex.Crim. Rep., 160 S.W. Rep., 716; Hobbs v. State, 53 Tex.Crim. Rep.; Hickey v. State, 62 Tex.Crim. Rep., 138 S.W. Rep., 1051; Branch's Crim. Law, secs. 852-853, 867. Under these authorities we are of the opinion that this cross-examination was too latitudinous and involved matters that were not germane to the witness' direct examination. Being the wife of the appellant, the statute, limiting the cross-examination of the wife, prohibited, we think, the State from going into matters discussed.

The judgment ought to be reversed and the cause remanded.

Reversed and remanded.