Hardy v. State , 31 Tex. Crim. 289 ( 1892 )

Appellant was convicted of murder in the second degree, and his punishment assessed at a term of seven years in the State penitentiary.

By the witness Jackson the State proved, that defendant, one week before the homicide, using a very opprobrious epithet in reference to an unnamed person, said, "He has got my pistol, and if he don't give it up to me I propose to kill him." This was objected to because it was not shown that defendant referred to deceased, or that deceased was in possession of the pistol. The court states in the bill of exceptions that he admitted the evidence upon the assurance of the district attorney that he would connect the testimony with the deceased, and that this was subsequently done. It is insisted by the appellant that the above statement of the court is not sustained by the statement of facts.

The rule in such cases is, that when a bill of exceptions contradicts the statement of facts in any specified particular, the bill will be held to contol and to correctly state the disputed matter. Gaines v. Salmon, 16 Tex. 311; Smith v. The State, 4 Texas Ct. App. 626[4 Tex. Crim. 626]; Harris v. The State, 1 Texas Ct. App. 74[1 Tex. Crim. 74]; Briscoe v. The State, 27 Texas Ct. App. 193[27 Tex. Crim. 193].

It is equally true that the court's qualification or explanation of the bill of exceptions will control the recitals in the bill, in so far as such explanation modifies such recitals. The court's qualification shows the testimony to have been clearly admissible; not only so, but the evidence itself discloses that the defendant had been to the residence of deceased once or twice prior to the killing, in order to secure the return of his pistol, and had failed to get it. The threat need not name the party threatened, where the other facts adduced give individuation to it, as was done in this case. Whart. Crim. Ev., 9 ed., sec. 756.

Exceptions were reserved to the following remarks of the district attorney: "Gentlemen of the jury, I was in the grand jury room when the witness America Huff testified before the grand jury last fall, and I tell you Mr. Ledbetter and Mr. Hall are mistaken about her testimony. She testified the same as now." The court qualifies the bill of exceptions by stating, "That the district attorney made the remarks complained of in reply to an argument by counsel for the defense, based upon the failure of the first grand jury to indict, and to explain their failure by stating, in addition, that said first grand jury could not procure the attendance of certain witnesses who appeared and testified before the subsequent grand jury."

The evidence discloses the fact to be, that the first grand jury having failed to secure the evidence of the witnesses, except America Huff, failed to indict the defendant. On cross-examination, defendant's counsel asked the witness Huff if she did not state to the first grand jury that the defendant was sitting in his saddle, with his right foot thrown across his horse's neck, at the time he shot and killed the deceased. She replied that she testified then as on this trial — that is, that he was sitting in his saddle with his feet in the stirrups. Ledbetter and Hall, two members of the former grand jury, being introduced for that purpose, contradicted this witness as to her statement before that body as to the position of the defendant's right foot and leg at the time he shot and killed the deceased. The only point of difference between these witnesses as to Mrs. Huff's testimony before the grand jury, was in reference to the position in which she placed defendant's leg and foot at the time of the shooting.

The impropriety of the remarks of the district attorney being conceded, still we are unable to see how the same could have been of such a prejudicial character as to have affected the case on trial, or require a reversal of the judgment. Neither of the impeaching witnesses attacked Huff's testimony as to the fact that the shooting by the defendant was intentional. The remarks complained of must not only be improper, but must also be of a material character, and such as, under the circumstances attending the particular case, were calculated to injuriously affect the defendant's right before the jury. Willson's Crim. Proc., sec. 2321.

It is also contended that the court erred in submitting to the jury the issue of murder in the second degree, because the evidence discloses the homicide to be murder in the first degree. While the evidence would have justified a verdict of murder for the higher degree, yet there was testimony authorizing, if not demanding, the charge complained of. We can not agree to defendant's proposition, that the conviction should be set aside, because the charge and verdict are more favorable to him than the testimony would justify. Fuller v. The State, 30 Texas Ct. App. 559[30 Tex. Crim. 559].

The jury did not err in discarding the defendant's theory of accidental homicide. The facts do not sustain it. Even his individual testimony does not sustain, but rather repels, such a conclusion. Touching this phase of the case, the defendant, in substance, states that he went to the house of deceased, called for and received his pistol from deceased, and when it was handed to him, and while looking at and revolving the cylinder for the purpose of ascertaining if the cartridges were of proper size, it went off and killed deceased. He immediately fled. Went three miles into the country, returned the horse he was riding, which he had borrowed to ride to the house of the deceased, and continued his flight to Wharton County, and thence to Harris County. He stated also that he did not know whether or not he had killed deceased at the time he fled. For the State, two witnesses swear positively to an intentional and deliberate killing by defendant, and to his immediate and rapid flight. He did not stop to see if he had killed deceased, nor did he indicate by act or word that the act was otherwise than deliberate.

The testimony fully sustains the conviction. Finding no reversible error in the record, the judgment is affirmed.

Affirmed.

Judges all present and concurring.