Williford v. State , 36 Tex. Crim. 414 ( 1896 )

Appellant was convicted of murder in the second degree, and his punishment assessed at twenty-five years in the penitentiary, and he prosecutes this appeal. In order to present the bill of exceptions, we will first summarize the evidence: The killing occurred at the house of Mrs. Williford, the mother of appellant, who lived in Dallas County, a short distance from the town of Rowlett, some time in December, 1894. The deceased had hired to Mrs. Williford to farm on her place during the year 1895, and had moved to her house, and was living there at the time of the homicide. Defendant at the time was also staying at his mother's when not working out at other places. On the morning of the day of the homicide, the deceased and defendant met at the town of Rowlett. It appears that they had a difficulty there. What occasioned it is not made clear. Defendant testified that he asked the deceased for the loan of his horse to ride a mile and a half to invite a young lady and gentleman to a dance that night, and that the deceased got mad, and drew his knife, and threatened to whip him, and told him, if he ever crossed his path again he would hurt him. The defendant told the deceased that when he got home he would repeat the words he said before his mother. These words seem to have had some connection with appellant's opposition to the employment of the deceased by Mrs. Williford. It appears that the deceased preceded the defendant home; at least, when defendant arrived there, the deceased was sitting on the front gallery of Mrs. Williford's house, the gallery being in front on the east side of the house. Defendant came in through the back part of the house. It appears Mrs. Williford and her son Henry were in the kitchen, and Annie Hughes was also somewhere in the rear portion of the house. Defendant came through the hall towards the front part of the house, and, according to his testimony, about the time he reached the door of the hall, accosted the deceased, and said, "Now, we will go before my mother and settle it," and that deceased arose, ran his hand in his pocket, advanced rapidly towards defendant, and he shot him in apprehension that he was about to be attacked with a knife. The bullet took effect in deceased's forehead, and he fell right in the hall door, his body being partially in the hall, and his feet extending out on the gallery. No one but defendant saw the homicide committed, and the State's case in rebuttal of the defendant's theory of self-defense is made up of circumstantial evidence. The theory of the state was that there had been bad blood existing between the parties, beginning with the employment of the deceased by Mrs. Williford; and the State proved that the defendant said, if his mother hired him he would kill him; and the tendency of the State's evidence was to show a willful and malicious murder, engendered on account of this employment of the deceased by the mother of the defendant. Defendant's testimony in regard to the origin of the bad feeling between them tended to show that it was not on account of said employment, but because the deceased was paying attention to Annie Hughes, his niece, some 14 or 15 years of age, and he claimed that this attention was for no good purpose. No weapon was found on the person of the deceased save his pocketknife, and that was in his pocket. Appellant, in his first bill of exceptions, objects to the contradiction or impeachment of Annie Hughes; who was the State's witness. The State had examined this witness, and had proved by her a part of the circumstances attending the homicide, of an inculpatory character. In that connection she stated that she never heard John Baker say anything at all, if he said anything; when she saw him, he was not doing anything; he was just lying there struggling, and catching his breath hard. And, although she was examined fully, she stated nothing about having heard the defendant say anything. On cross-examination, however, she stated that, just before the shot was fired, she heard defendant say, "Stand back." This was an affirmative fact; and, in connection with the testimony of the defendant, was very important. It was hurtful to the state. This testimony, coming as it did, apparently was a surprise to the State. If it was not, the bill should have negatived this idea. As stated before, it was certainly injurious, and we think the State had a right to lay a predicate by the witness, Annie Hughes, on this branch of the case, in order to contradict her by a member of the grand jury. See, Code Crim. Proc., Art. 795; Bennett v. State, 24 Tex.Crim. App., 73; Self v. State, 28 Tex.Crim. App., 398; Thompson v. State, 29 Tex.Crim. App., 208. As stated before, no person saw the homicide except the defendant, and the State's case consisted of witnesses who testified to circumstances connected with the killing. There is no rule of law to compel the State to put on every witness who may have been near and knew of any circumstance connected with the killing. And there was no error in the refusal of the court to compel the State to put Mrs. Lizzie Williford, or her son, Henry Williford, on the stand. See, Kidwell v. State, 35 Tex. Crim. 264. Bill of exceptions No. 3 presents a number of objections urged to the cross-examination of the defendant when he was on the witness stand. Over his objection, the State was permitted to prove that the defendant had been fined twice in the Justice Court for fighting. It is held in this State that it is competent to prove by a defendant, as going to his credit, that he has been convicted of a felony, or of such misdemeanors as impute moral turpitude, but not such as do not impute moral turpitude. Mere assault and battery is not such an offense as carried with it this imputation. See, Brittain v. State (decided at present term of this court), ante p. 406. The State was also permitted, over the objection of the defendant, to ask him the following question: "Is it not a fact that you had spent your part of your father's estate, and was staying at your mother's, and you were so worthless and drunken that your mother could not get you to attend to her business, and had to hire John Baker to attend to her business for her, and that was what you were mad about, and there was nothing on earth between this niece of yours and John Baker — isn't that a fact?" We believe it was competent for the State to show by this witness, by proper questions, that appellant got incensed at deceased because his mother would not hire him, and hired deceased, and that this was the occasion of the ill feeling between him and deceased, and not because of any apprehension on account of his niece, but not that he had spent any part of his father's estate, and was so worthless and drunken that his mother could not get him to attend to her business. It was not competent to prove or attempt to prove by appellant why his wife left him. Nor was it competent to place Mrs. Williford on the stand for the purpose of contradicting the appellant as to these matters. Much less was it competent, after Mrs. Williford had failed to impeach the defendant, to put W.A. Nason, a member of the grand jury, on the stand, for the purpose of impeaching her in regard to same. As stated before, it was perfectly competent, in the examination of the defendant, to prove by him, if it could be done, the fact that Mrs. Williford hired John Baker instead of her son, and that her son was angered on that account, and also to prove the same fact by any other witness who knew it.

Mrs. Williford, who had been introduced as a State's witness, was recalled to the stand, and, for the purpose of laying a predicate to contradict her, was asked the question, "Did you not state to the defendant, in the presence of Joe Sinclair, that he (the defendant) had shot the deceased without cause?" And thereupon she stated that she did not remember whether she said this or not. The said Joe Sinclair was placed upon the stand, and on examination stated that he was at the house of Mrs. Williford a short time after the shooting, and that she stated to the defendant that he had shot the deceased without cause. It will be borne in mind that Mrs. Williford was a State's witness, and in this connection it does not appear that she had stated any affirmative fact hurtful to the State, but that she was simply placed upon the stand in this connection to lay a predicate for her contradiction. Under the authorities this could not be done. We are not to be understood as holding that it was not competent for the State to prove, as original evidence, that Mrs. Williford, or any other witness, charged appellant killed deceased without provocation, and that he stood mute. Such testimony, under proper circumstances, has always been admitted as confessions. See, Art. 795, Willson's New Code Crim. Proc., and authorities cited. Mrs. Williford was also asked "if defendant, immediately after the shooting, did not tell her that, if she did not shut up, and leave that man alone, he would shoot him again." She denied having made this statement. She was then asked if she did not state, in the presence of Alex Nelson, immediately after the shooting, and as soon as Nelson got to the house, that defendant said to her, "If you don't leave that man alone, and hush, I will shoot him again." She was compelled to answer this question, over the objection of the defendant, and she said that she did not remember making any such statement. And thereafter said Alex Nelson was introduced by the State, and, over defendant's objection, the State was permitted to prove that she did make said statements to him. As stated before, Mrs. Williford was a State's witness, and she could only be impeached by contradictory statements in case she made some affirmative statement hurtful or prejudicial to the State, and calculated to surprise the State.

In the sixth bill of exceptions, the defendant also shows that Mrs. Williford was asked by the State's attorney, "Didn't the defendant tell you that if you hired John Baker he would kill him?" to which the witness answered that "she did not know that he did, but that she had forgotten now whether or not he did say that." She was then asked if she did not make such a statement before the grand jury. This question and the proposed answer were objected to by the defendant, which was overruled, and the witness answered that she did not so tell the grand jury. She was also asked if she did not make the same statement to Squire Swim, and she responded that she did not, but, if she did, she didn't remember it. Subsequently John H. Traylor, a member of the grand jury, was put on the stand, and, over the defendant's objection, the witness was permitted to state that Mrs. Williford did make said statement before the grand jury. On the examination of this witness it was perfectly competent for the State to prove by Mrs. Williford that defendant declared to her, before the killing, that, if she hired John Baker, he (defendant) would kill him. If she denied that he made such statement to her, the State's investigation on the subject was at an end, and it was not within the power of the State to show by other witnesses that she did make said statement, and thus get incompetent testimony before the jury. If, in answer to the question, she had not only denied that he made the statement, but had gone further, and said some affirmative declaration that defendant may have made to her at the time that was hurtful to the State, in that contingency alone, she being a State's witness, would it be permitted to prove by some other witness that she made the statement, at another time and place, on the same subject, beneficial to the State, and in contradiction of the affirmative testimony delivered by her. This contingency did not occur as to this witness, and this indirect method of getting; before the jury hearsay testimony prejudicial to the defendant was not, authorized. Nor, as to this character of testimony, presented in several bills, and heretofore discussed, was the evil cured by the charge of the court, delivered at the instance of the appellant, instructing the jury that they could only regard it for impeachment of the witness. The testimony was not competent for impeachment purposes, and its admission was error. And, notwithstanding the charge of the court, the jury must have been impressed with the idea that, as this State's witness, Mrs. Williford, had declared to others that the defendant made these incriminating statements to her, they were true in fact, though no witness testified to them, and they would be constrained to use the same as evidence against the defendant. If the court, after the admission of this testimony, had expunged it altogether by a charge, it would not have relieved the case from the injury which this improper evidence engendered. In the examination of the defendant, he stated that his reason for objecting to his mother hiring John Baker was on account of his niece, Annie Hughes; that John Baker was paying attention to her; and that he had the reputation of getting intimate with young ladies, and slandering them. We think the testimony of witnesses showing that such was not the reputation of John Baker was admissible in evidence in this case. No objection was made to the charge of the court, but the defendant assigns as error the giving of certain portions of said charge, and also that the court erred in refusing to give certain special instructions asked by him. Appellant especially criticises the charge of the court on self-defense, and he insists that said charge is improper, and not the law. Without discussing the charge, we would remark that the charge is perhaps longer than is necessary, and does not present the issue of self-defense as compactly and clearly as it should. All that was necessary in this case, on this branch of it, was to tell the jury, if they believed that the deceased first attacked the defendant, or it reasonably so appeared to the defendant that he was in the act of attacking him, and that he was in the act of drawing a knife on the defendant, or it reasonably so appeared to the defendant, and that defendant reasonably believed that his life was in danger, or his person in danger of serious bodily injury, from such attack, and he then drew his pistol, and shot and killed the deceased, it would be in self-defense. For the errors heretofore discussed and pointed out, the judgment of the lower court is reversed, and the cause remanded.

Reversed and Remanded.