Golin v. State , 37 Tex. Crim. 90 ( 1897 )

Appellant was convicted of murder in the first degree, and his punishment assessed at a life term in the penitentiary; hence this appeal. The evidence introduced on the part of the State was circumstantial, and tended to show that the appellant, on the night of the 30th of May, 1895, assaulted and struck his wife, Sofia Golin, a number of blows with some character of instrument, inflicting wounds upon her from which she died in a few hours. The proof showed that the parties had been married about four years, and that the decased was possessed of considerable property in her own right, mostly real estate, in and near the city of Houston, worth from ten to twenty thousand dollars. She was about 70 years of age, and the appellant was about 45 or 50 years old. The theory of the State was that the motive actuating the defendant in the homicide was gain; that is, to acquire and own the property of his deceased wife. We do not believe the court erred in excluding the evidence of Quinn, offered by the appellant, to prove that the neighborhood where the deceased and the appellant lived, and where she was killed, was at that time "a lawless and tough place." There was no evidence tending to connect any one else, by circumstances, with the commission of the offense. Such evidence is only admissible in a case of circumstantial evidence, where, in connection with the proof offered, the circumstances tend to show that some other person may have done the killing (see Kunde v. State, 22 Tex.Crim. App., 65; Henry v. State [Tex.Crim. App.], 30 S.W. Rep., 802); or where there is some evidence pertinently tending to show some theory consistent with the defendant's innocence, or inconsistent with his guilt (see Murphy v. State, 36 Tex: Crim. Rep., 24. In this case there was no such tangible theory presented with the excluded evidence, such as to render it admissible, We do not believe the court erred in excluding the testimony of Prewitt as to the $600 or $800 in money held as a part of the estate of Sofia Golin. The mere fact that he held such money would not be significant, unless his testimony would show that said $600 or $800 was found by him on the promises of Sofia Golin. As we understand the explanation of the court, this money was found by another witness who was present, and the witness Prewitt knew nothing of the finding of said money on the premises of Sofia Golin, except by hearsay. On the trial, the State introduced in evidence a certified copy of the will of Sofia Golin. The action of the court in connection therewith is indicated by the following bill of exceptions, to-wit: "The State offered in evidence a a certain paper writing purproring, to be a true and correct copy of the last will and testament of the deceased, Sofia Golin, certified as such copy, under the certificate and official seal of the Clerk of the County Court of Harris County, Texas, to-wit, E.F. Dupree, as the same appeared on file in his office, of date of the 9th day of April, 1895, and purporting to be signed by the deceased, Sofia Golin, in German, in and by which said instrument the said Sofia Golin purports to bequeath and devise to the defendant, Frank Golin, all and singular the property belonging to her, including two tracts of land or real estate situated in the County of Harris, in the State of Texas, and making the said defendant, Frank Golin, sole executor of said instrument, without bond or security. The said certified copy purports to be witnessed by Alfred Wisby and W.R. Day, and the original of which purports to have been filed on the 8th day of August, 1895, in the office of the clerk of Harris County, Texas. To the reading of which certified copy of said instrument the defendant at the time, in open court, objected, because: (a) There was no proof showing that said will had ever been executed in the manner and by the formalities required by law; (b) because there was no evidence that the deceased, Sofia Golin, had executed or made said written instrument or will; (c) because said certified copy of said instrument was not the best evidence of said will, or its purported execution, it not having been shown that said purported will was lost, mislaid, or destroyed, or was not in existence, or that it was in the possession of the defendant; (d) because said purported will had never been established as the last will and testament of the said Sofia Golin, by any witness who saw her sign it as a matter of fact, nor had the same been admitted to probate or proved as the last will and testament of the said Sofia Golin; (e) because the best evidence of the establishment and proof of said will was not said certified copy of the same, but would be the record of the proper court wherein said instruments are established, or a certified copy of the record of such proof and establishment of such purported will; (f) because said paper writing and purported certified copy of said pretended will had not been filed among the papers of the case of the State of Texas against Frank Golin, wherein it was offered and proposed to be used, for the period of time required by statute, and due notice thereof given to the defendant of the purpose upon the part of the State to use said purported certified copy of said will as evidence against him in said trial; (g) and because said certified copy of said purported will had not been filed among the papers of this cause, nor had any notice been given thereof to this defendant, and the same was read to the jury, over the objection of the defendant, before the same was filed among the papers of said cause; (b) because it was not shown before said instrument was introduced in evidence, or before or after, at any stage, of the trial, that the defendant had any knowledge of the execution of the will or of its contents. But all of defendant's said objections were by the court overruled, and the said paper writing or certified copy, as the substance of the same is set out hereinbefore, was read in full by the State to the jury, to which action of the court in overruling defendant's objections, and permitting the said certified copy of said purported will to be read in evidence, the defendant excepted."

It will be noted that the paper here offered and allowed in evidence was a writing purporting to be a true and correct copy of the last will, etc., of Sofia Golin, certified as such copy, under the certificate and official seal of the Clerk of the County Court of Harris County, Texas. As explained by the court, this was permitted, in connection with the testimony of Alfred Wisby and W.R. Day, who testified as to the execution of the said will; and we are referred to their testimony in the statement of facts. By referring to the testimony of W.R. Day, we ascertain that he saw the deceased sign said will; that he did not sign it in the presence of the deceased, but signed it afterwards, in the office of Wisby. Wisby testified that lie wrote the will, and saw the deceased sign it as her will, and that he then signed it in her presence. The paper bears date April 9, 1895, and is a will in proper form, and gives and bequeaths to her husband, Frank Golin, the homestead tract of land, consisting of five acres, more or less; also, forty-eight acres, more or less, in the Austin survey, situated on the Montgomery road, about two and one-half miles from the courthouse — both properties being in Harris County — in fee simple, to be disposed of as he may wish. It also bequeaths to said Frank Golin the residue of the property of the testatrix, both real and personal, wherever it may be, and appoints him sole executor, without bond; and further provides that no other action should be had in the County Court in relation to the settlement of said estate, except the probate and record of said will and return of all inventory and appraisement and list of claims. The will was filed August 8, 1895, by E.T. Dupree, Clerk of the County Court of Harris County, by his deputy, Dixon. Attached to the certified copy of the will is a certificate of the County Clerk of Harris County to the effect "that the above and foregoing is a true and correct copy of the last will of Sofia Golin, deceased, as the same appears on file in my office." The certificate was dated September 17, 1895. It will be noted that there was no certificate of probate offered with this will.

Article 5352, Rev. Stat., 1895, provides: "Every such will, together with the probate thereof, shall be recorded by the Clerk of the County Court in a book to be kept for that purpose, and certified copies of such will and the probate of the same, or of the record thereof, may be recorded in other counties, and may be used in evidence as the original might be." Article 5351 provides: "All original wills, together with the probate thereof, shall be deposited in the office of the Clerk of the County Court of the county wherein the same shall have been probated, and shall there remain, except during such time as they may be removed to some other court, by proper process, for inspection." Article 2312 provides: "Every instrument of writing which is permitted or required by law to be recorded in the office of the Clerk of the County Court, and which has been or may be so recorded after being proven or acknowledged in the manner provided by the laws in force at the time of its registration, shall be admitted as evidence without the necessity of proving its execution; provided, that the party who wishes to give it in evidence shall file the same among the papers of the suit in which he proposes to use it, at least three days before the commencement of the trial of such suit, and give notice of such filing to the opposite party or his attorney of record; and unless such opposite party, or some other person for him, shall, within three days before the trial of the cause, file an affidavit stating that he believes such instrument of writing to be forged. And whenever any party to a suit shall file among the papers of the cause an affidavit stating that any instrument of writing, recorded as aforesaid, has been lost, or that he can not procure the original, a certified copy of the record of any such instrument shall be admitted in like manner as the original could be." This was not a probated copy of said will offered in evidence, but, as we understand it, a certified copy of the will, which appears to have been deposited with the County Clerk for some purpose. It may have been in his custody pending a suit for the probate thereof, but about this the record does not inform us. If such was the case, on a proper certificate of the fact, the certified copy might have been introduced under Art. 2314, Rev. Stat., 1895. Article 2314 reads: "If suit be brought on any instrument or note in writing filed in any suit brought thereupon in any other court of this State, a certified copy of such instrument or note in writing, under the hand and seal of the clerk of the court in which the original may be filed, shall be admitted as evidence in like manner as such original might be; but if the defendant shall plead and file an affidavit under oath that such original instrument or note in writing has not been executed by him, or by his authority, the clerk of the court having the custody of such original shall, on being subpœnaed as a witness, attend with the same on the trial of the cause."

The clerk of said court, if said will was filed in the County Court of Harris County (this trial being in the Criminal District Court of Harris County), might have been compelled to attend on the Criminal District Court in person with the instrument. See, Morrison v. Bean, 22 Tex. 554. The original will, unprobated, could be used in evidence by proof of its execution, and without the necessity of filing the same among the papers in the cause, and giving the opposite party notice. And, pending this probate, the statute provides that a certified copy, under the hand and seal of the clerk of the court in which the original may be filed, shall be admitted in evidence in like manner as such original might be. Before it was probated and proved up by the subscribing witnesses thereto, the statute would appear to make a certified copy admissible, and that it could be proved up as an examined copy by the witnesses who signed the original will. Day, one of the witnesses in this case, it appears, signed the will in the absence of the testatrix; and there might be some question in such case whether or not the will could be probated upon such testimony. But, although this may have been an abortive will, still, if appellant is shown to have had knowledge thereof, and to be connected with its execution, it would, nevertheless, be admissible in evidence, upon proof that the testatrix signed it as her will and testament, in the presence of the witnesses, with knowledge on the part of the beneficiary, and the evidence of belief on his part that he was entitled to take under it. It is objected in the bill of exceptions that appellant had no knowledge of the execution of this will; but we do not understand this to be so certified in the bill itself, and, when we recur to the statement of facts, there is some testimony tending to show knowledge on his part of the execution of the instrument prior to the homicide. There is testimony subsequent to the homicide that he acted and assumed to take the property of the testatrix under the will.

The State was permitted, over the appellant's objection, to introduce a certain paper writing, purporting to be a true and correct copy of a power of attorney from appellant, Frank Golin, to one James Wilkerson, duly certified as such, by and under the certificate and official seal of the Clerk of the County Court of Harris County. The court overruled the various objections urged by appellant; and, in explanation of said bill, says that "said power of attorney was introduced in connection with the testimony of W.J. Love, who testified that he was present when Golin executed the original power of attorney, and that said certified copy was a correct copy of said original, and testified further in relation thereto, as is fully set out in the testimony of said Love." Said power of attorney appears to have been executed in New Orleans, State of Louisiana, on the 21st of June, 1895, by Frank Golin; is acknowledged before Upton, a notory public in and for the Parish of Orleans, by said Frank Golin; was filed for record in Harris County on September 12, 1895; and was recorded on September 13, 1895, in the record of deeds of Harris County. Said power of attorney purports to authorize James Wilkerson to act as the attorney in fact of said Frank Golin as to all of the property which he owns in his own right, and which he was hereafter to be entitled to receive, as surviving husband or heir at law of Sophia Golin, and as to all property, etc., to which he may have any right, title, or interest, legal or equitable; to sell and convey and make deeds to such real estate; to execute mortgages, etc. The State also introduced a certified copy of a paper writing purporting to be a true and correct copy of a certain deed from defendant, Frank Golin, by his attorney in fact, James Wilkerson, to one H. Masterson, duly certified as a true and correct copy of said deed, under the certificate and seal of the Clerk of the County Court of Harris County; said deed purporting to have been executed on August 13, 1895, and conveying to said Masterson, in consideration of $10,000, two certain tracts of land situated in Harris County, Texas (one of said tracts known as the "Peters Place," containing about seven acres of land; and the other containing about forty-nine acres of land, known as the "Germantown Tract"), giving a full description of the land by metes and bounds, also a large amount of personal property, embracing choses in action, debts, and claims of all kinds and descriptions; said deed purporting to convey all property, of every kind and description, to which the said Frank Golin might be entitled in his own right, or as heir or devisee of Sofiia Golin, deceased. The court in admitting said testimony, explains "that said witness, W.G. Love, testified with reference to said deed as is fully set out in his testimony in the statement of facts in this case, reference to which is made." Love testified in this connection: "I was practicing law in this county last May, and have since. I was attorney for defendant during part of that time. James Wilkerson is a lawyer in New Orleans. He is the one mentioned in the document shown me [power of attorney]. I did not file that document for record. I had the original in my possession. Don't know who filed it. The original of the power of attorney was in my possession. I did not file original power of attorney for record. I wrote the original deed of which the State shows me a certified copy for identification. [Copy of deed from Masterson to Wilkerson here shown, and identified as a copy of the deed prepared in his office.]

Among other objections urged to these instruments are: "(1) The State did not file said papers among the papers in this cause, nor exhibit to the defendant or his attorneys until the same was offered in evidence. (2) Said paper had not been shown to be examined copies of said deed or power of attorney. Nor had it been shown that the originals were lost or mislaid or destroyed, or in the possession of the defendant, and therefore said certified copies were not the best evidence. (4) There was no proof offered by the State to show or tend to show that the defendant, Frank Golin, had ever executed the purported originals of said certified copies. (5) Because said purported certified copies of said supposed originals had not been filed in the papers of the State of Texas against Frank Golin, in which it was proposed to use said copies for a period of time required by law and notice given defendant; the same not having been filed among the papers in said cause, before or at the time the same were offered in evidence. This power of attorney and deed were material evidence against the appellant, as showing motive on his part to commit the homicide, and that defendant's flight from the State was permanent. The statute before quoted (Art. 2312, Rev. Stat., 1895) is a rule providing for the introduction of such evidence in civil cases. Our statute (Art. 764, Code Crim. Proc., 1895) on this subject provides. "The rules of evidence prescribed by the statute law of this State in civil suits shall, so far as applicable, govern also in criminal actions when not in conflict with the provisions of this code, or of the Penal Code." And it has been held in a number of cases in this court that, said rule of evidence prescribed in said Article 2312 in civil suits is applicable to the admissibility of the same character of evidence in criminal cases. See, Johnson v. State, 9 Tex.Crim. App., 249; Allison v. State, 14 Tex. App., 403; Morrow v. State, 22 Tex.Crim. App., 239; Graves v. State, 28 Tex.Crim. App., 354. In some of the cases before this court, as in forgery and theft of cattle, where the forged instrument or bills of sale were offered, the instrument was directly involved, and could not be considered collateral. But in Allison v. State, supra, while the bill of exceptions is not shown, it was evidently upon a collateral issue. If it were a new question, and the evidence appeared to be collateral, as merely to show motive, we should feel constrained to regard the whole matter as governed by the rules of evidence, and that a paper writing, when offered in evidence, must, be either admissible at common law, or under some statute of our State. If we have a statute, of course we are controlled by that. In Wiggins v. Fleishel, 50 Tex. 57, it, is said that in a civil suit a deed is not per se. admissible in evidence. To render it admissible, it must be recorded, and, after record thereof, it must be filed in the cause in which it is to be used as evidence, at least three days before the trial of the cause, and notice of such filing given to the opposite party, or it may be rendered admissible by proving its execution in the manner required at common law. Now, in this case the original power of attorney and deed were not offered in evidence at all, but certified copies, under the seal of the county clerk. In such case an affidavit should have been filed, stating that the original instruments, recorded as aforesaid, had been lost, or that they could not be procured, and then such certified copies could be admitted in like manner as the original could be. If the certified copies had been on file the necessary three days, and notice thereof given to the opposite party, the affidavit could have been made at any time. See, Ross v. Kornrumpf, 64 Tex. 390. Moreover, there was no notice whatever given to produce these papers, nor any effort shown to procure them from the proper custody. None of the steps in fact appear to have been taken which rendered these certified copies admissible in evidence. The explanation of the court referred to the testimony of Love, and, when we recur to Love's testimony, he does not make them admissible under any rule of law that we are aware of. He does not even testify that he saw them executed. Concede, however, that the certificate of the judge is to the effect that he saw the power of attorney executed, yet this testimony would not render the certified copy of the power of attorney admissible under the evidence in this case. Nor do we understand that he proved that they were examined copies, compared by him with the originals. As stated before, they were introduced for the purpose of proving motive on the part of the appellant to commit the homicide, and they were material in that respect; and, if proper steps had been taken, doubtless this evidence could have been introduced. But these necessary steps to render this character of testimony admissible at all were not taken in this case. Said deed and power of attorney should have been excluded on the objections urged thereto by the appellant.

Appellant, in his sixth bill of exceptions, contends that the court committed an error in allowing the State to prove by the witness, J.H. Prewitt, over his objections, that he inquired of Wisby, and demanded of him the will of Sofia Golin, and that said Wisby told him (witness) that he did not have it, nor did he know where said will was. The court, in explaining this bill, says "that the evidence was only offered and admitted for the purpose of contradicting the witness Wisby, who had denied that he had told Prewitt that he did not have said will, or did not know where it was." It occurs to us that this testimony was immaterial, and if, as stated by the court, said Wisby testified that he did not tell said Prewitt that he did not have said will, and did not know where it was, he could not be contradicted on such testimony. Moreover, the court failed to limit this evidence to the purpose of impeachment. Appellant also objected to the evidence offered by the State by the witness, W.R. Day, to prove by said witness that he went to the house of the deceased, Sofia Golin, with said Wisby (the other witness to the will), and saw a writing purporting to be the will of said Mrs. Sofia Golin, and that he signed the same as a witness, but not in the presence of the deceased or at her house, but at another and different place. The objection to this testimony was that the statute requires the witness to sign the will in the presence of the testatrix, and what took place as to the will was simply between Wisby and said witness, and that no evidence had been offered on the trial, prior to or at the time said witness was allowed to so testify, to show that the defendant knew of the existence or contents of said purported will, because the will itself was the best evidence as to its execution and contents. As stated before, it may be that the said will was not the subject of probate by the witness who had signed it, not in the presence of the testatrix; but if there was evidence in the case tending to show that defendant knew of the execution of said will, and believed it was a valid will, though it may not have been so, still it was admissible for the purpose of showing a motive on his part for the homicide. "We do not understand the bill to certify that appellant had no knowledge of its execution, or that the evidence failed to show that he recognized and believed said will to be a valid will. Of course, if he knew nothing of the existence of such a will, was not connected with it — no evidence to show that he made any claim under it — it should not have been admitted; but, as stated, the bill does not show this. In regard to the bill in which appellant claimed that the court committed an error in not allowing the witness, Love, to state that defendant told him in New Orleans that the reason he left Houston was because he was afraid he would be mobbed; that the neighborhood in which the homicide occurred was a tough and lawless place; and that, when the defendant learned that he had been charged with the crime of killing his wife, he fled from Houston, because he was afraid he would be mobbed — we hold that, in order to have rendered said testimony admissible, it should have been shown (which was not done) that the State had brought out from said Love some part of the conversation relative to this matter; otherwise, the declaration or statement of the defendant to Love would be merely hearsay and self-serving. In our opinion, the evidence of Schwander as to what the defendant remarked some four years before the homicide, when he was first married to his wife, to the effect that defendant said to witness, "Before you came in here, and married me (said witness having performed the marriage ceremony), I was a poor man, but look at my property now," etc., was irrelevant and immaterial, and ought not to have been admitted. There is no bill as to the introduction of the testimony of the witness, Ross, contradicting the witness, Fisher. This testimony may not have been admissible, but, as no objection appears to have been urged to it, we do not pass upon that question. As admitted, we can see no harm inuring to defendant from the court's restricting said testimony for the purpose of contradicting the witness, Fisher. We have examined the charge of the court, and it appears to be correct. We do not believe the court erred in refusing to give a charge on manslaughter, under the evidence in this case. For the errors discussed, the judgment is reversed, and the cause remanded.

Reversed and Remanded.

[NOTE. — A motion for rehearing filed in behalf of the State was over-ruled without a written opinion. — Reporter.]