Waters v. State , 54 Tex. Crim. 322 ( 1908 )

Appellant was convicted of manslaughter and his punishment assessed at confinement in the penitentiary for five years.

A bill of exceptions was reserved by the appellant to the court's action in overruling his motion to quash the jury panel on the ground that what is commonly known as the Jury Wheel law, passed by the Thirtieth Legislature is unconstitutional. This question was passed on by us adversely to appellants contention in the case of Bob Smith v. State, at the present term of this court.

Appellant further reserved a bill of exceptions to the failure of the court to limit impeaching testimony. The bill presenting the matter shows that the witness Borden Brandon, brother of deceased, was introduced by the State, who testified that deceased, the witness and Edgar Hale were in a buggy at the time the defendant shot and killed the deceased, and he further testified that the iron arm piece on the seat of the buggy was stuck by the bullet fired by the defendant, and that a piece of paint was knocked off of the iron arm piece and a lead impression left on the aforesaid rail; that the defendant offered in evidence in impeachment of said witness, his testimony upon the habeas corpus trial in which said witness had stated nothing in regard to any bullet striking the iron arm rail or any paint being knocked off therefrom or any lead impression left upon the aforesaid iron arm rail; that the State proved by said Borden Brandon, furthermore, that the deceased drove in the buggy into the livery stable door, ran out the same way and got into the buggy with himself and Edgar Hale, and that the defendant came from the side door of the livery stable to the northeast corner and fired the shot that killed the deceased. And that the defendant's theory of the case was that the shooting occurred on the inside of the livery stable, the defendant standing near the corner of the office on the inside of the stable, about fifteen feet from the stable door through which the deceased entered, and at the corner of which office on the inside of the stable was a light and the witness Borden Brandon was asked by appellant's counsel the following predicate of impeachment: "On the night of the killing at McDavid's stable, the place of the homicide, between five and ten minutes after the killing, just after the said Borden Brandon had returned from where his brother's body was lying in the stable, when a man by the name of Harkie was in the office, at the phone phoning, and Dick Warren was standing in the barn near the light that hangs at the corner of the bed room at the office, is it not true that Richard Warren asked you where Buck Waters shot Will Brandon, and didn't Richard Warren at that time and in your presence and while his brother, Joe Warren, was there, ask you where Buck Waters was when he shot Will Brandon, and did you not say that the son-of-a-bitch came out of the door of the bed room and stood right under that light (meaning the light at the corner of the bed room) and held his pistol pointed towards Will Brandon and say you son-of-a-bitch your time is come and shoot Will Brandon?" This statement the witness Brandon denied and thereupon the defendant in impeachment introduced the said Richard Warren who testified that Borden Brandon did, at the time and place aforesaid, make the statement to him appearing in the foregoing predicate. The bill further shows that the State proved by the witness Edgar Hale that he was present at the livery stable on the outside when Will Brandon drove in and that when Will Brandon started to drive into the stable, he heard some one on the inside say the words, "There is them sons of bitches;" that in the impeachment of said witness the defendant read in evidence his, said witness', testimony on the habeas corpus trial of said cause, in which said witness had stated, "No, sir, I never heard anything when he started to drive in." And further his former testimony to the effect that all he heard said was when Will Brandon came out of the stable and got in the buggy with his brother Borden and the witness that he said "turn and drive off." Appellant complains by said bill that the court failed to charge upon the effect of the above impeaching testimony. The court approved the bill with this statement: "The testimony set out, while impeaching testimony was not of a character demanding a charge limiting its effect, and any charge with reference to such testimony would have been a charge upon the weight of the testimony." The rule of this court with reference to charging upon impeaching testimony is, that unless the testimony could be used for some other purpose than impeachment, it is not necessary to charge upon same. We do not think any of the impeaching testimony above copied from the bill could possibly have been used for any other purpose than the impeachment of the witness. If it could, as an independent proposition, be used to show the guilt or innocence of the appellant, the impeachment testimony introduced would tend to exculpate, even if used as independent evidence, but as stated, it could not legitimately be used or originally used by the jury for any other purpose than impeachment; that is, to show the lack of credibility in the witness. This being true, we do not think the court erred in refusing to limit the testimony.

Appellant further complains that the court erred in permitting the State over the objection of appellant, to prove the details of the difficulty that occurred between deceased and appellant at a dance some half hour before the killing. Appellant insists that the details of this former difficulty were inadmissible on the ground that it was a detailed statement of a collateral and extraneous crime, hurtful to appellant, irrelevant and incompetent. Appellant cites the court to various authorities on this question, but none of them are in point, as we understand. On a charge of murder where the State is called upon to prove malice and where the motive for the killing is an issue, it is always permissible to prove the previous difficulties between the same parties, as to who were the aggressors, as shedding light upon the transaction. The evidence in this case shows that deceased and his brother and appellant and his brother had a difficulty at a dance something like a half hour before deceased was killed in which appellant and his brother got the worse of the difficulty, appellant's brother being pretty badly beaten up. Appellant and his brother insist that after the difficulty they went to McDavid's livery stable in the town of Lancaster to wash the blood off of his, appellant's, brother's face and while there deceased and his brother came up and the deceased drove his buggy into the livery stable and just as he did so, some one hallooed, "here are the sons of bitches, now! shoot them! shoot them!" and immediately deceased started to get out of the buggy and appellant shot, hitting deceased; that deceased jumped out of the buggy, ran to the back part of the livery stable and died in a few moments. The State's theory about the immediate facts is, that deceased, after driving his buggy into the livery stable, discovered appellant and rushed out, jumped into the buggy with his brother and Edgar Hale, imploring his brother, Borden Brandon, to drive off, that appellant was coming. At this juncture, the State's evidence shows, appellant hallooed, "Oh, yes, you sons of bitches, your time is up," and shot, hitting the deceased in the back under the left shoulder, and thereupon deceased jumped out of the buggy, ran into the livery stable and died in a few moments. The defense's testimony shows self-defense. The State's evidence shows a clear case of murder in the second degree. Now then, it was legitimate and proper to show the motive and animus that prompted the appellant in going to the livery stable. The State's evidence shows that he, appellant, knew that deceased would soon be there. Appellant went off and armed himself, and went to the livery stable, as stated in his testimony, to wash his brother's face, being accompanied by his brother. Now then, if the evidence shows that appellant had been very badly mistreated, or beaten by deceased and his brother, this would furnish a powerful motive and animus to appellant to take revenge on deceased. On the other hand if he had been but slightly injured, this would merely go to the extent of the motive and animus. See Kunde v. State, 22 Texas Crim. App., 65. In the case of Davidson v. State, 22 Texas Crim. App., 372, the court holds that such testimony being offered as proof of the main issue involved in the trial no restriction or limitation could apply to it, nor was the court called upon to limit same in its charge to the jury, and it is always competent for the State to prove acts of the accused antecedent to the act of the killing which either in themselves, or in connection with other circumstances tend to prove motive. See also Hubby v. State, 8 Texas Crim. App., 597; George v. State, 17 Texas Crim. App., 513; White v. State,32 Tex. Crim. 625. This court has furthermore held that indictments and records in other cases where defendant was accused of assault with the intent to murder the deceased, or of theft of property of the deceased, or of other offenses against the deceased, were properly admitted as evidence of motive. Hart v. State, 15 Texas Crim. App., 202. In Easterwood v. State,34 Tex. Crim. 400, it was held that the testimony of deceased taken at the examining trial before his death, for an assault by defendant with intent to murder him, which showed that deceased was a witness in a cattle stealing case against the brother-in-law of defendant was admissible to show motive. The court charged on murder in the second degree, manslaughter and self-defense, and also at the request of the appellant gave quite a number of special charges covering different features of the defense set up by the defendant. Certainly in the light of this record, the charge of the court in connection with appellant's special charges, can not be criticised, but on the other hand, we think same covers every legitimate phase of the testimony in this case and we hold that the verdict of the jury is amply supported by the evidence.

Finding no error in the record, the judgment is in all things affirmed. Affirmed.

ON REHEARING. December 14, 1908.