Hale v. State , 121 Tex. Crim. 364 ( 1932 )

Conviction for murder; punishment, five years in the penitentiary.

The testimony shows that three young men had been going from place to place in a car, drinking and gambling. The party consisted of appellant, one Kelley and deceased. Appellant had recently come into possession of some money. The three were in Bartlett, Texas. Appellant seemed to have come to a conclusion that he had been mistreated by one or both of his companions. He had a pistol, and went with Kelley to at least two hardware stores in Bartlett for the purpose of getting cartridges, but, owing to signs made to the dealers by Kelley, they would not sell him any. Appellant left his companions at Bartlett and drove alone to Granger where he bought cartridges for the pistol and returned. That same day the killing occurred. Kelley testified for the state. Relating to the immediate occurrence, he said that deceased was driving the car, and that appellant pointed the pistol at deceased who then stopped the car. Appellant pointed the pistol at witness who got out of the car and started running. He testified that he looked back and saw appellant out of the car and heard him call to witness that he was just playing. Witness saw deceased in the car under the steering wheel. He said appellant came around the side of the car from the back and shot. Deceased at the time appeared to have his hands on the steering wheel and was doing nothing to appellant. After the shot was fired witness ran on through a field. Two witnesses who were going after a load of corn testified they passed the car at or very near the place where the killing occurred, and saw one man in the car, another out of the car by the side of same, and still another party in the field. These witnesses went on, got their corn, and came back and found deceased dead in the car. The undertaker who handled the body of deceased, testified that he was called to the scene and found deceased sitting in the car under the steering wheel, his hands in his lap, and his left foot on the clutch of the car. He was shot through the eye, it appearing that the bullet had gone into the head some distance. That probably death was instantaneous. This witness said he found some small change and a penknife in the pocket of deceased, the knife being closed.

Appellant made a written statement the next day after the homicide in which he claimed he was drinking, but remembered leaving Bartlett. He said he did not remember what happened on the road, or how deceased was killed, or who killed him. This statement was offered in evidence by the state after appellant had given testimony in a rambling, somewhat incoherent, story that he and deceased were scuffling over the pistol and same was accidentally discharged, or else some one else fired a pistol at that time. There was testimony pro and con in regard to appellant's mental unsoundness, and this issue was submitted in the charge of the court.

The record contains six bills of exception, each of which had been carefully considered. If we understand the record, the first five of said bills complain of matters to which objections were made at the time of their occurrence, and again in the motion for new trial, but no bill of exception in any instance was taken to the action of the court until after the motion for new trial was overruled. This is not in accord with our practice which requires that a bill of exception be promptly taken to any ruling objected to, and that the taking of same for the first time in connection with the overruling of the motion for new trial is not in compliance with our statute. However, in as much as the form of these bills is such as to leave some doubt in our minds, we have considered each of them.

Bill No. 1 complains of a question propounded by the district attorney to witness Kelley, in effect, if appellant did not point his pistol at witness also. There is nothing in the bill which shows that the question was answered, but inferring from what is said in the court's qualifications that it was answered in the affirmative, we agree with the trial court that the matters was res gestae. The same is true of bill of exception No. 1-A which complains of the answer given by said witness to the same question.

State witness Kelley admitting on cross-examination that he had been indicted for burglary in Llano county, that he pleaded guilty and was given a five-year suspended sentence, we fail to see any injury in the court's rejection of documentary proof of such conviction, in the shape of the judgment and sentence which were offered in evidence by the appellant. Same would have added nothing to the discrediting effect of witness' admission. True, in connection with his admission witness said he was not guilty. The written judgment and sentence would no more show his actual guilt than did the admissions which the witness made before the jury.

The confession introduced in evidence and made by appellant contained the written statutory warning. This made it admissible. Wilson v. State, 103 Tex.Crim. Rep.,281 S.W. 844; Crowley v. State, 92 Tex.Crim. Rep.,242 S.W. 472. Complaint of the admission of such confession, appearing in bill of exception No. 4, was not sound. Testimony of the sheriff and other officers of Bell county who saw and talked with and observed appellant frequently between the time of this homicide and his trial, to the effect that they were of opinion that he was not insane and that he knew it was wrong to kill a man, in conjunction with the statement of their opportunities for observation, was correctly received.

Appellant sought a new trial in part on the ground of newly discovered evidence, attaching to his motion the affidavits of three parties, each of whom set out statements claimed by him to have been made by state witness Kelley after the homicide, and which appellant insists were at variance with the testimony of Kelley as given upon the trial. If this contention be true, this would be but impeaching Kelley by proof of contradictory statements. No better settled rule is found in the decisions of this court than that a new trial will not be granted for testimony merely impeaching. In section 202 of his Annotated P. C., Mr. Branch cites probably a hundred cases in support of this proposition, among others, Barber v. State, 35 Tex. Crim. 70,31 S.W. 649, in which Judge Davidson said: "As a ground of the motion for a new trial it is alleged that one Frank Austin would testify on another trial, if present, that the injured party made to him statements at variance with his testimony delivered on the trial. * * * Besides, the testimony is strictly and purely impeaching in its character and effect."

So in Driver v. State (Texas Crim. App.), 65 S.W. 528, 529, Judge Henderson observes, commenting on an effort to obtain a new trial upon the affidavit of Chandler setting up what a state witness had said to him after the main trial, as follows: "Of course, any statement that McWright may have made to Chandler would not be original testimony, and could only be used for the purpose of contradiction or impeachments. Motions for new trial should not be usually granted upon this ground. Holt v. State, 20 Texas App., 271; Barber v. State,35 Tex. Crim. 70, 31 S.W. 649."

So in Monroe v. State, 105 Tex.Crim. Rep.,289 S.W. 686, 687, with reference to affidavits setting up that state witnesses had made contradictory statements, we observed: "None of same would have been admissible as original testimony." Again in Bracken v. State, 110 Tex.Crim. Rep., 9 S.W.2d 356, 357, where a new trial was sought based on an affidavit that some days after the difficulty affiant heard the injured party make statements which, if true, would, have materially contradicted his testimony as given on the trial, we said: "The effect of the testimony would have been to discredit and impeach the testimony of the injured party. It was not admissible as original testimony." In Alexander v. State,84 Tex. Crim. 185, 206 S.W. 362, opinion by Judge Morrow, it was observed that the newly discovered evidence consisted of statements and admissions of witnesses conflicting with their statements made on the trial. The action of the trial court in refusing a new trial was upheld. So in Harris v. State, 93 Texas Crim. Rep., 551, 249 S.W. 485, where the affidavit contained statements of the injured party at variance with his testimony, the motion for new trial was held properly overruled; Judge Morrow writing for the court. Other cases are Martin v. State, 94 Tex. Crim. 175,249 S.W. 839; Esquivel v. State, 93 Tex. Crim. 126,246 S.W. 399; Patterson v. State, 85 Tex. Crim. 644,215 S.W. 308; Drennan v. State, 53 Tex. Crim. 314,109 S.W. 1090. However, the affidavits of said newly discovered witnesses all relate to the same conversation, and the oral testimony given by the affiants upon hearing the motion for new trial, makes doubtful whether there is real conflict or not.

Finding no error in the record, the judgment will be affirmed.

Affirmed.

ON APPELLANT'S MOTION FOR REHEARING.