McBride v. State , 110 Tex. Crim. 308 ( 1928 )

The offense is murder; the punishment confinement in the penitentiary for 45 years.

Appellant lost some well-drilling tools. Deceased handled equipment for drilling oil wells. Appellant believed that deceased was concerned in stealing his property. State's witnesses testified that appellant threatened the life of deceased. Shortly before the homicide deceased, at the instance of appellant, went to see appellant. A difficulty ensued. Appellant testified that deceased cursed him, and began striking him with his fists; that deceased knocked him down and told him that he would cut his throat; that as he, appellant, got to his feet he pulled a pistol; that a party who had been standing near was holding deceased and that deceased was struggling to free himself; that deceased freed himself and faced appellant in a crouching position with his right hand in his pocket; that believing that deceased was preparing to cut his throat he fired on deceased. Several witnesses for the state testified that deceased was striking appellant and had knocked him against an automobile, appellant endeavoring to protect himself with his arms, before appellant fired. It was also testified by state's witnesses that deceased was attempting to place a bystander between him and appellant shortly before appellant fired; that a scuffle ensued between deceased and the bystander with the result that the bystander freed himself and deceased faced appellant about the time the shot was fired. State's witnesses, who examined deceased's wound, stated that the bullet entered from the back. Deceased was a large vigorous man and several years younger than appellant. Appellant had been several times injured and was not a strong man.

Attorneys for the state request that several of appellant's bills of exception be stricken from the record, asserting that bills of exception relating to the formation and selection of the jury and referring only to collateral issues and containing recitations of fact adduced upon issues other than the guilt or innocence of the accused must be filed in term time. Chapter 8, of the Acts of the 39th Legislature, First Called Session, has evidently been overlooked. Section 1 of said act provides:

"In all Criminal Cases tried in any court in this State, statements of facts or bills of exception as to the action of the court in overruling an application for change of venue, or as to other matters and things occurring before the beginning of the actual trial of the case, shall not be required to be filed during the term of the court at which such case is tried, nor shall such statements of facts or bills of exception pertaining to misconduct of the jury or other matters or things happening or occurring after the submission of the case to the jury, be required to be filed during such term of court; but all such statements of facts and bills of exception pertaining to any and all of such matters shall be filed within the same time as is prescribed by law for the filing of statements of facts and bills of exception pertaining to matters or things happening or occurring during the actual trial of the case."

Section 2 of said act provides:

"All statements of facts and bills of exception when filed in compliance with Section 1 hereof shall be entitled to consideration in any appellate court in this State, provided this law has become effective when the case is heard by such appellate court."

The statute above quoted has the effect of authorizing the filing of bills of exception relating to the matters mentioned after the close of the term and within the time bills of exception generally may be filed.

Bill of exception Number 13 was reserved to the refusal of the court to permit appellant to make an opening statement to the jury in accordance with Article 642 Cow. C. P. It appears that the request was made after the state had rested its case and appellant had placed one witness on the stand who had testified only to the good reputation of appellant for being a peaceable and law-abiding citizen. The bill of exception embodies the proposed statement. In the case of House v. State,171 S.W. 206, this court held that the use of two witnesses by the accused, who had testified only as to his good reputation, did not constitute a waiver of the right of counsel for the accused to state the nature of the defenses relied upon and what facts were expected to be proved in their support. The rule applicable is stated by Judge Morrow in Dugan v. State, 199 S.W. 616, as follows:

"The correct view, we think, is that there rests in the court the judicial discretion to control the statement and limit it to its proper scope, and that when an accused in a timely manner seeks to avail himself of the privilege of making an opening statement, and does not seek to abuse the privilege by commenting upon improper and inadmissible facts, converting it into argument, or otherwise misusing it, it should be accorded, and when its denial, under these circumstances, is properly brought before this court for review, the denial will not be sanctioned."

It is shown by a number of bills of exception that several jurors were challenged for cause on the ground that they were prejudiced against appellant. As we understand the testimony of said jurors, they entertained more or less prejudice against appellant. However, each juror averred that he could lay such prejudice aside and try appellant according to the law and the evidence. The court overruled the challenges for cause and appellant exhausted his peremptory challenges on said jurors. Thereafter appellant was required over proper challenge for cause to accept a juror who entertained the same attitude of mind as the jurors who had been challenged because of prejudice. Subdivision 12, of Article 616, C. C. P. provides that a juror may be challenged for cause when "he has a bias or prejudice in favor of or against the defendant." In Hooper v. State, 272 S.W. 493, Judge Lattimore, in discussing this subdivision of the statute, said:

"This is quite different from the thirteenth subdivision of said article, which provides as to cases where a juror has established in his mind a conclusion as to the guilt or innocence of the defendant such as would influence his action in finding a verdict. When a juror seems disqualified under the thirteenth subdivision, it is always permissible to ask him if he can lay aside such opinion, and if, after having laid it aside, he can give the accused a fair and impartial trial. There is a fundamental distinction between the prejudice on the part of a juror and the entertaining of an opinion on his part. When it appears that the feeling had by the proposed juror is really one of prejudice, and that it is directed toward the accused, it is not ordinarily deemed possible for such a juror to be qualified by stating that he can lay aside such prejudice, etc. It is easily possible for one who entertains a deep-seated prejudice to believe himself able to lay it aside, but human experience teaches the contrary."

Giving effect here to the above announcement, we are constrained to hold that the learned trial judge fell into error in overruling the challenges to the jurors.

It appears from bill of exception Number 23 that appellant had had a conversation with A. F. Martin, a witness for the state, concerning the tools he had lost, and that in said conversation he had accused deceased of being connected with stealing his tools. This conversation was brought out by the state. On cross-examination appellant questioned the witness concerning the matters brought out by the state relative to said conversation. The state asked appellant on cross examination if he had not told the witness Martin in the same conversation that he had at another time assaulted a person who had placed a lien on his property. Appellant answered in the negative. Over proper objection the witness Martin, upon being recalled by the state, testified that appellant had related to him in the same conversation the incident of assaulting a party who had placed a lien on his property. The state had shown that appellant had threatened the life of deceased. We are not in accord with the state's position that the statement respecting another and different offense was necessary to express the idea that appellant was accusing deceased of being connected with stealing his property. Nor do we understand that said statement illustrated the meaning of any threat against deceased. There would have been no obscurity in appellant's statement to Martin had the statement relative to a different transaction and offense been eliminated. The case of Martin v. State,295 S.W. 1098, relied upon by the State, is not in point. In that case, the accused in making threats against officers in general, displayed and made use of a pistol in the presence of the witness to whom the threats were made. The meaning of the language employed by the accused would have been obscure, without the accompanying acts and words of the accused in relation to the witness. In discussing the question, the court said:

"The display of the pistols and the use made of them on the occasion, considered in connection with the balance of Rayzor's testimony, impresses the writer as merely a demonstration by the appellant emphasizing and illustrating the meaning of his words. The acts and words were res gestae of each other, and both were necessary to express the idea that he was endeavoring to convey to Rayzor and to have him transmit it to 'those damned officers.' The threats being relevant on the issue of motive (Wharton's Crim. Ev., 10th Ed., vol. 2, sections 882 and 884), the manner in which they were made became admissible although their relation disclosed the commission of another offense. A recital of the words which Rayzor imputed to the appellant, without the accompanying acts, would have left his meaning obscure when he said, 'This is what I am going to smoke them out with.' "

In the case at bar, the unrelated act of appellant in assaulting another in no manner explained any other act, declaration or conversation given in evidence, and a recital thereof was not necessary to make any matter in evidence fully understood. Such statement shed no light on any issue in the case. The provisions of Article 728 Cow. C. P. to the effect that when part of an act, declaration or conversation or writing is given in evidence by one party, the whole on the same subject may be inquired into by the other, has no application here. The state and not appellant introduced in evidence the conversation had between appellant and the witness Martin. We are constrained to hold that the testimony complained of was admissible under none of the recognized exceptions to the rule that proof of extraneous offenses is not admissible if it could only show that the accused was a criminal generally. Martin v. State, supra, and authorities cited; Branch's Annotated Penal Code of Texas, Section 166. The matter upon which it was sought to impeach appellant being collateral to the issue, the state could not subsequently contradict appellant's answer to the question. Branch's Annotated Penal Code of Texas, Section 178. It follows that reversible error is presented.

Other questions are presented, but not discussed, as they are not likely to arise in the same form on another trial.

For the errors discussed, the judgment is reversed and the cause remanded.

Reversed and remanded.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

ON MOTION FOR REHEARING BY STATE.