Dean v. State , 47 Tex. Crim. 243 ( 1904 )

Appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of twelve years. The former appeal of this case is reported in 8 Texas Ct. Rep., 958.

Bill number 1 complains of the court's refusal to grant appellant's second application for continuance. We find in the record a strong contest filed by the State to said motion. In the light of the State's contest we think the court did not err in overruling the same, since the contest shows that said witnesses would not have testified as appellant insists in his motion had they been present.

The second bill complains of the failure of the court to permit appellant to introduce in evidence Chilton Brown's testimony taken at the inquest. The bill shows that Brown was a State's witness and testified different from his testimony at the inquest. The inquest testimony was favorable to defendant. The court approved the bill with the following qualification: "The attorney for the defendant took the inquest testimony of the witness and asked him if he did not swear as it was therein written in the inquest trial, reading his testimony over to him. Witness answered that he did. Then counsel offered the original testimony as set out in the bill, and the court sustained the State's objection, because witness had admitted that he had so testified and did not attempt to deny it. There was no error in the ruling of the court. When a witness confesses to have made contradictory statements and admits what they were, evidence as to said contradiction is not admissible. Walker v. State, 17 Texas Crim. App., 16. It is only where there is a denial, direct or qualified by the witness of his former statement that proof of said former statement can be introduced. Rodriquez v. State,23 Tex. Crim. 503; Hyden v. State, 31 Tex.Crim. Rep..

The third bill complains of the action of the court refusing to permit appellant to corroborate his witness, Ella Lacy, by showing that her testimony before the coroner's inquest and before the grand jury was the same as on this trial. The court qualifies this bill with the statement that the court excluded the testimony because it was an attempt to corroborate his witness without her credibility being in any manner attacked by the State. There was no error in the ruling of the court in excluding the testimony.

The fourth bill complains of the following argument of the county attorney made to the jury: "No wonder we have mob law in this State, when counsel for defendant come in here and make such speech as Woldert (attorney for defendant) made. Defendant then and there excepted to the language of said attorney. Whereupon the court told the jury not to regard the observation of said county attorney. To which language of the county attorney defendant excepted. The bill is approved with this statement: That the county attorney, when he made the statement above, was answering a proposition of law relative to defendant's right, which he (county attorney) contended was fallacious and dangerous." Defendant's attorney asked no special charge instructing the jury to disregard the statement. The bill does not show what language the county attorney alluded to that appellant's counsel had used. We cannot say it was not a pertinent retort to the language he used. At any rate, he did not tender to the court a special charge, asking the jury to disregard the statement. We cannot say there was error in the ruling of the court.

Bill number 5 complains of the argument of the county attorney, who was assisting the district attorney in using the following language: "Gentlemen of the Jury — why, even if the theory of Woldert (defendant's attorney) is true, defendant had no right to keep that horse in his lot against the consent of the deceased. Heard had a right to go and get him. If his theory is true, defendant came by him in an illegal transaction. It was a gambling contract and could not be enforced." We find no special charge asked by appellant instructing the jury to disregard this argument. Furthermore we do not see how or in what manner it could or did injure the rights of defendant. The evidence seems to support the county attorney's statement that the horse had been won in a gambling transaction.

Appellant insists in his motion for new trial, among other things, that the court should have charged Article 680, Penal Code, which authorizes the defense of property. The evidence in this case does not raise this issue, since deceased at the time he was shot was not in the act of taking the horse. Deceased had merely informed appellant that he was going to take the horse. The various other errors assigned are not well taken. The charge of the court is practically the same as that given on the former trial. There is no error in the record. The judgment is affirmed.

Affirmed.

ON REHEARING. December 20, 1904.