Harrelson v. State , 60 Tex. Crim. 534 ( 1910 )

The motion for rehearing filed in this cause on behalf of appellant concedes that the court correctly determined several questions originally relied on for a reversal. Serious disagreement, however, with our conclusions on other matters contained in the opinion and arising on the record is strongly urged. These several matters are so skillfully presented and are urged with so much earnestness and vigor that we have felt it our duty to review and discuss them.

1. The first ground of the motion for rehearing is as follows: "The court erred, in the opinion of affirmance, in holding that it was not error for the trial court to admit the testimony of G.W. Gibson, official stenographer, to the effect that the jury upon the trial of appellant's brother returned a verdict of guilty after he had reread, at their request, the testimony of deceased given upon that trial, and in holding that appellant must have had knowledge of such transaction, in the nature of things, the evidence showing, and the agreement of the parties establishing, that appellant knew nothing of this transaction."

A careful review of the record has more firmly convinced us that the disposition and treatment of this question in the original opinion was and is correct. The bill of exceptions evidencing this matter seems clearly defective in not showing as a fact that appellant was unaware that deceased was a witness against his brother, of the importance of his testimony, and of the particular incident of his testimony having been read to the jury by the stenographer. The mere statement and denial of such knowledge in the bill of exceptions is not equivalent to a finding that the matters stated as grounds of objection are in fact true. If we look to the evidence it seems clearly true that there was abundant testimony from which the jury might have reasonably found that he had such knowledge, and it seems clear to us, in the light of the entire record, that no fair mind, having in mind the entire case, could have doubted for one moment that he did have this information. One witness speaks of appellant being present at the trial. It was shown overwhelmingly by the evidence that after his brother's conviction he actively engaged in an effort to secure affidavits impeaching the reputation of deceased for truth and veracity, and had stated to a witness with deep significance that this testimony of Fraser's would not again appear in judgment against his brother. All this is consistent with the idea that he must have known and did know of deceased's testimony, its importance, the extent to which it figured in his brother's case, and all the incidents of the trial. If it does not show it directly, it is certainly strong circumstantial evidence of the fact, and such fact of notice in this as in other cases may be as truly and convincingly shown by circumstances as by direct evidence. It should further be remembered that no part of deceased's testimony on the trial of the brother of appellant was admitted in this case, but merely that the testimony given on such trial was thereafter reproduced by the stenographer.

2. The second ground of the motion is as follows:

"The court erred, in the opinion of affirmance, in holding that no error was committed upon the trial of the cause, because of the failure of the trial court to affirmatively charge the jury as set forth in appellant's seventh exception in his motion for a new trial, to the effect that appellant had the right to carry his gun with him on the morning of the homicide, and that if the jury believed he was seeking deceased with his gun when they met in the road, but that he did no act at the time calculated to provoke, or to bring on the difficulty with deceased, and that deceased made a hostile demonstration as if to draw a pistol, or of doing him some serious bodily harm, that appellant would have the right to shoot and kill deceased, and the fact that appellant had his gun would not abridge or lessen his right of self-defense."

This matter was fully considered on original submission and seems to us to have been conclusively answered and correctly disposed of in the original opinion. In the pending motion the point is sought to be strengthened by combining with it a discussion of the fact that the court permitted proof of the innocent purpose of deceased in being on the road at the time he met his death. This suggestion and view is presented for the first time in this motion. It can not now be urged. The issue of self-defense was well presented, and except in the respect herein urged was not complained of in the court below. There was no submission of the issue of provoking a difficulty. Where the court submits the issue of self-defense generally in the terms of the law, it is not only not required, but it would be manifestly improper to select detached and isolated parts of the evidence and single them out for particular and special instructions, either at the instance of the State or the defendant.

3. The third ground of the motion is thus stated:

"The court erred, in its opinion of affirmance, in holding that under the circumstances it did not devolve upon the trial court to limit, to the only purpose for which it was introduced, the testimony given by defendant, over objection of his counsel, to the effect that he had been indicted by deceased for theft of timber."

This testimony was admitted and was clearly admissible on the ground, considered in connection with other evidence, that it showed malice and ill-will on part of appellant towards deceased. If in fact he was not guilty of the theft of timber, as had been charged by deceased, his wrath and anger would have been perfectly natural. If he had been guilty then of such charge and exposure, he no doubt would have entertained towards Fraser the same ill-will. This was testimony of the highest value to the State to prove hatred, ill-will and motive. Again, it must be remembered that it was not a case where evidence or proof of extraneous crimes had been admitted. The testimony in this case went only to the extent that deceased had made such a charge against appellant, but what the facts were in respect to same the record is wholly silent. The testimony stopped with the fact of the charge. There was no danger, therefore, that appellant would, under an indictment for murder, be convicted, in the absence of any proof sustaining it, on a charge of theft. Nor in such condition of the record is it reasonable or fair to assume that the evidence could or would have been appropriated by the jury for any purpose except the single one of showing animus or motive. There is perhaps no question which is in more confusion in our decisions than the one involved in the proposition as to when the court is required to give a charge limiting testimony as to other offenses, or as to proof of charges of other offenses. In most of the cases in the reports, and in nearly all of the cases cited in support of the motion, it appeared that there wasevidence of the commission of other offenses. However the rule may be generally, we think this statement is sound law. Where, as in this case, charges against a defendant by a deceased, similar to the one here in evidence, are offered as supplying and furnishing motive, and as part of the State's affirmative and original or primary proof of guilt, no limiting charge is either required or proper to be given. This rule is not only sound in legal reason, but is directly supported by the decisions referred to in the original opinion. In the case of Thornley v. State,36 Tex. Crim. 118, Judge Hurt, in passing on the motion for rehearing, uses this language: "But where the testimony is simply used to prove up the case as res gestae, or to prove any other fact that forms a part and parcel of the case, so as to show the defendant's guilt, and there is no probability of the jury convicting for the offense not charged, it is not necessary to limit the effect of the testimony. In fact, it is only necessary for the court to charge upon and limit said testimony when there is danger of a conviction for the offense not charged, or of an unwarranted use of the testimony to the prejudice of the defendant in the case in which he is being tried." In the case of Hall v. State, 31 Tex.Crim. Rep., Judge Davidson, speaking for the court, says: "The court did not err in failing to charge upon the effect of this evidence, and in omitting to restrict it as a fact tending to prove motive or malice. The authorities cited by appellant sustain the proposition that when independent, contemporaneous crimes, or crimes showing system, are adduced and relied on to connect the accused with the offense on trial, or to develop res gestae, or to show intent, they should be restricted to their proper office by appropriate instructions. The rule grows out of the necessity of protecting the accused against conviction of an offense not charged in the indictment, and to guard him from prejudice that might occur on account of such crimes being admitted as evidence But the evidence under discussion is a part and parcel of this case, belongs to and grows out of it, is not an independent offense, and does not come within the rule invoked by defendant." To the same effect see Weaver v. State, 46 Tex.Crim. Rep..

4. The next ground of the motion is to this effect:

"The court erred, in its opinion of affirmance, in holding that the testimony of Mrs. Perminter and her daughter, Dona, to the effect that appellant stated to them shortly after the homicide that he shot and killed deceased, and that at the time he shot him he had his hand in his shirt bosom, was original, and not impeaching, testimony, such as required the trial court to limit the same in its charge to the jury to the only purpose for which it was admissible, and in holding that the trial court did not err in failing to limit the effect of such testimony."

There is no merit in this contention. It is admitted in the motion that there was no error in admitting in evidence the statement of appellant that he had killed Fraser. That, it is conceded, was original evidence proving the homicide. Again, since appellant on the stand admitted the killing, in any event it could have worked no injury. The complaint is that since the statements of Mrs. Perminter and her daughter proved an admission of the killing, under circumstances denied by him, that it was, therefore, necessarily impeaching, and must at all hazards be limited. This is not necessarily true, even if the testimony was wholly impeaching in character, where it relates to the very case being tried, and where in such case the fact of the killing is admitted. In fact, the evidence is original testimony which not only includes and contains an admission of the killing, but is an explanation which, under the evidence, is inconsistent with the facts as disclosed by an examination of Frazer's body, and the clothing and weapon carried by him, and one which carries on its face and which any jury might well believe to be a fabrication designed to shield himself from the consequences of his wrongdoing, and, therefore, original evidence and strong evidence of his guilt.

5. Finally, it is urged that the court committed error in permitting the State, over the objections of appellant, upon the trial of the case, to prove by its witness, Mrs. S.A. Fraser Connell, the surviving wife of deceased, the undisclosed innocent purpose of deceased in going to his farm on the morning of the homicide. This matter was not presented in the original brief, is not mentioned in appellant's motion for new trial, nor was it contained in the lengthy motion for rehearing originally filed, and was not referred to in the opinion. A careful examination of the record discloses that there is no bill of exceptions proper in same evidencing this matter. We find by referring to Mrs. Connell's testimony, as contained in the statement of facts, the following reference to this matter which, to insure accuracy, is here faithfully copied:

"I remember about my husband being killed. It was about six o'clock, I suppose, that morning when my husband left home; when he left that morning he went to fix a water gap and carried a hammer with him.

"Q. What time was he to return, if he had any understanding with you as to when he would return? Defendant: That seems to be immaterial and we object to it. Court: I don't think it is objectionable, the objection is overruled. Defendant: We except to the ruling of the court. A. Why, he told me he didn't know; it might be after dark when he got in, if he lacked an hour's or so work getting through he would get through before he come back rather than go back the next day."

It will thus be seen that there was no objection at all interposed to the proof to the effect that her husband left home about six o'clock in the morning, and that when he left he went to fix a water gap and carried a hammer with him. The only portion of the testimony objected to was that relating to the time of his return, and to this evidence the only objection was that it seemed to be immaterial, which, as applied to this character of testimony, was no objection at all. As presented, we are not authorized to review this contention, but in the condition of the record must hold it wholly without merit.

A careful review of the record has convinced us that the original opinion was correct; that appellant has been convicted on a fair trial, and that his sentence is warranted both by the law and the facts. It is therefore ordered that the motion for rehearing be and the same is hereby overruled.

Overruled.

McCord, Judge, absent.