Streight v. State , 62 Tex. Crim. 453 ( 1911 )

On a former day of the term I concurred in reversing this judgment. I still fully concur in that conclusion, but on motion for rehearing our attention has been directly and pointedly called to alleged error in the nineteenth section of the opinion in holding admissible in evidence certain letters. My brethren are still of the opinion the former opinion in this respect is correct. I have given the record, in the light of the motion for rehearing, a personal inspection, and have reached the conclusion that the letters should have been excluded. I am fully convinced, in the light of the personal inspection of the record and after a review of the authorities, that our former opinion should be reformed in the respect mentioned, and that we were and are in error in holding the letters admissible as evidence.

I have carefully read the motion for rehearing, and believe it sufficiently presents the issue both of fact and law, and will, therefore, adopt it for reasons why that portion of the opinion discussed should be reformed and changed as urged in the motion. Appellant has been fully conservative in stating the record, even more than favorable to the State's side of the issue. I hereby attach and adopt the able argument of Messrs. Williams Williams, appellant's attorneys, as my opinion:

"Now comes the appellant, Minnie Lee Streight, and moves the court, in respect to the point hereinafter referred to, to grant her a rehearing and to reverse and reform its opinion upon the question determined in paragraph No. 19 of the opinion heretofore rendered by this honorable court, and for reasons say that the court erred in its conclusions and findings of fact upon which it based said paragraph of said opinion, and the court further erred in its findings of law applicable to the facts, and in admitting the letters therein referred to in evidence.

"1. No presumption of fact will be indulged in in order that testimony may be rendered admissible. 2. Where evidence tendered is prejudicial or inflammatory in character and is of little legitimate weight and probative character, it will be very closely scrutinized and unless clearly admissible will be excluded. Woodward v. State, 42 Tex.Crim. Rep.; 6 Enc. Evidence, page 606; Tomlin v. State, 25 Texas Crim. App., 685. 3. Where testimony of threats, quarrels or former troubles between the deceased and defendant at all remote in time is offered in evidence, and it is shown that there had been a reconciliation between the parties thereafter, such testimony is excluded and the law presumes that the fatal difficulty grew out of the new trouble or provocation, if any is shown. ``Repeated quarrels may be shown between the parties to establish the malo animo, but you can not go back to a remote period and prove a particular quarrel or grudge unless it be followed up with proof of a continued difference flowing from that source.' 6 Ency. Evidence, page 592; Ross v. Commonwealth, 21 Ky. L. Rep., 134, 55 S.W. 4; McAnear v. State, 43 Tex.Crim. Rep.; Wakefield v. State,50 Tex. Crim. 125; Wilburn v. State, 77 S.W. Rep., 3. 4. Evidence tending to show infidelity upon the part of the wife accused of a homicide, seven years prior to the homicide, is so remote in time that the law will presume her reformation and fidelity. French v. State, 47 Tex.Crim. Rep.. 5. Letters of the character introduced in evidence are never admissible unless it be proven that they formed the basis for action and in this case unless it be proven that they were the moving cause of the homicide; and in this connection no presumption will be indulged in against the appellant.

"Our criticism upon the inaccuracies and unwarranted findings of fact by this court strike with equal force as a boomerang upon counsel for appellant, who at the time that the case was submitted so insistently urged that this court pass with such dispatch upon this voluminous statement of facts.

"The court passing upon this question finds as a fact, and upon which its conclusions of law are based, the following: ``By her (appellant's) testimony it is shown that the family troubles, if family troubles there were, were caused by the belief of deceased in her infidelity. If her testimony is true, he had cursed her because of this belief for a period of more than ten years. They were separated about the period the letter was written to Wood, and the cause of this separation was deceased's opinion that she was untrue to him. . . . She shows that she desired to quit deceased, and says he threatened her life, and threatened to use this and another letter to take the children away from her if she did do so.'

"Based upon this conclusion of fact, the court says in the opinion: ``Under all the evidence in this case, and especially the evidence of defendant, we have arrived at the conclusion that the letters introduced tended to shed light on the homicide, the causes leading up to it, and if the defendant was guilty of any offense, of what degree of homicide she was guilty. The letters, perhaps, would not have been admissible, except in the light of her testimony, but when we view the case from the standpoint of what she says and the other facts and circumstances in evidence, the court did not err in admitting them in evidence.'

"We desire to call the court's attention briefly to what we think are clearly erroneous findings of fact, caused evidently by the court attempting to summarize in his mind and digest this voluminous statement of facts in the short space of time that was necessarily consumed and devoted to a consideration of it.

"The first finding ``that the family troubles were caused by deceased's belief in the infidelity of his wife' is wholly without support in a detailed consideration of the record. The testimony of Mrs. Streight, quoted in the opinion, does not at any time infer, except in two specific instances, one seven years ago in Ft. Worth, and the other during the last week of the homicide, that her husband ever accused or thought her guilty of infidelity, and in fact her testimony as to the Ft. Worth incident shows that he did not really believe her guilty at that time or in that instance.

"The other conclusion ``that he cursed and abused her on account of this belief for ten years' is also unsupported, as is also the conclusion that they separated at the period the letter was written to Wood and that the cause of their separation was deceased's opinion that she was untrue to him.

"The testimony also developed affirmatively that at the time the letters in question were discussed between them in Ft. Worth that there was a perfect reconciliation between them and that they lived together peaceably and happily for at least five months and for an indefinite part of one year in addition to this.

"We refer to the testimony of the different witnesses briefly upon these points. S.F. (Mrs. Streight's testimony), page 101, shows that after going to McGregor she worked in the office with him a year and he became so disagreeable that she quit working there, and that as years went on he became more so.

"The court seems to have entirely misinterpreted one transaction in her testimony (S.F., 101-102) relative to the time that he drew a pistol on her, and seems to have concluded that this was on account of his belief in her infidelity. The above pages of the statement of facts show that she was expecting a telephone message from her cousin, John McLain, an attorney, who lived in Llano, and who had passed through McGregor on his way to Cleburne, and was to phone back and stop off for a visit on his way back. That the appellant expecting the phone message one afternoon, notified central that if a long distance call came for her to send the message up to her husband; that they were both expecting this telephone message and he seemed as anxious to see her cousin as she did, and there was no question of jealousy there. When he came home to supper he asked her if she had gotten the long distance call. She said no, that she had been uptown shopping, and he became angry and cursed her for a liar and told her that she ought to have been at home attending to her business, etc., and called her other vulgar and vile names, and that he was in the habit of calling her a bitch and a slut and a whore, and that on this particular occasion she started to the telephone to call an officer and deceased got his pistol and said, ``If you ever attempt to call an officer I will kill you and the officer.' That deceased went to the front door to close it and appellant slipped out the back door and through the side gate to a neighbor's and fell on the porch. There was no question of infidelity in regard to this, or does it appear to have been with reference to anything else, but was simply one of his cursing fits. He would just get so mad that he appeared to be insane and had the expression of a maniac and she was afraid of him. S.F., 103.

"Another specific occasion referred to (S.F., 104), which took place in the presence of Miss Mai Belle Neff, started ``because the coal oil cup was out of place. When he went to make fire for breakfast he could not find it and came back to my bed and asked me where it was.' He then cursed her for vile names and took her by the throat and choked her and she was confined to her bed for several days. He started to strike her with a stick of wood. There was no supposition of infidelity in regard to this. Miss Mai Belle Neff and Miss Fredda Streight both testified to this same incident.

"S.F., page 105, appellant testified: ``I am not sure what the Sunday morning encounter started about. It was some trifling matter. I can not tell what it started about because they were so numerous and the causes were so trivial that I can not recall them all.'

"S.F., 106, shows an instance where he became furious and cursed and abused her for all of these vulgar and outrageous names because she had bought some lemons without his permission, and he took the sack of lemons and emptied it in the most violent, frantic manner on the floor and mashed them with his feet all over the floor and got down with his hands and mashed them, and dared her to ever buy anything else in town. On the same page is another incident where deceased went to the kitchen to put the breakfast food on one morning. The vessel turned over on the floor; he became angry and threw the whole thing in the backyard cursing, and because appellant laughed he came in and abused her and cursed her. She then says on this same page, ``Those instances that I have given are fair illustrations of our morning meals for the last six years there in McGregor. He often became angry because there would be a button off his clothes, or the buttonhole not the size it should be. He would become violent and abuse and curse me about it and ``tear up his collar and his underwear and throw them away.' That she worked in the office with him doing ordinary mechanical labor, she understanding typesetting, during the first year of their life at McGregor, and that she quit the office because he became so disagreeable and unpleasant in the office, and that beginning with the threats and abuse of her and her children at that time they finally rendered her a physical wreck. The clear inference being that the greater part of the first year of their life in McGregor they lived peaceably, which, as we will later show, was but a continuation of the five or six months intervening between the letter incident at Ft. Worth and their arrival at McGregor.

"Now we say that this record of appellant's testimony shows that deceased cursed and abused her and the vile epithets that he applied to her all grew out of ordinary everyday domestic affairs and the deceased's ill temper and nothing else. That nowhere in the record is there a single incident of anything else except the conclusion as to the Ft. Worth incident and the few days immediately preceding the homicide, and the Johnson letter was never known to the deceased in any manner.

"While the deceased cursed and abused appellant for a slut, bitch, whore and chippy, it is not shown that he used these terms as an accusation, but on the contrary, he would use them on occasions when he would get mad about some small domestic affair, as abusive language and vent to his temper. He seems to have used substantially the same language to his young daughter. It has been frequently held by this court that calling a man a son-of-a-bitch is not a reflection or insulting language or conduct toward a female relative reducing the homicide to manslaughter, but is purely an opprobrious and insulting epithet without meaning. The same rule would apply to the language of deceased toward his wife when there was no indication for or occasion of an accusation against her character.

"The other material witnesses upon these points, material in the order in which their names appear, are Mrs. Ida Baldwin, S.F., 149-166; Miss Fredda Streight, S.F., 173-198; Glenn Streight, S.F., 216-238; Ben Kelley, S.F., 199; Miss Mai Belle Neff, S.F., 202-215; Mrs. M.H. Rayburn, S.F., 248-254; Miss Ruth Rayburn, S.F., 239-248. None of these witnesses at any point contradicted appellant upon the causes for the frequent outbreaks of temper upon the part of deceased, but on the contrary corroborated her in detail.

"Appellant never testified that the cause of their separation at the time she was in Ft. Worth grew out of any question of infidelity on her part, but was on account of his mistreatment of her, and upon this point appellant's sister, Mrs. Baldwin, S.F., 154, also says that appellant wrote her from Shawnee, where they were living, of deceased's bad treatment of her and her fear that he was going to kill her and the children, and that the witness, who was living in Ft. Worth then, wrote appellant and sent her the money to come to Ft. Worth with her children, and that appellant came to Ft. Worth in answer to this letter, and they all kept house there together until deceased came some time later. That deceased came some time between Thanksgiving and Christmas. That she advised appellant not to go back to him, but that she did, and they all lived there in the house together until the house burned the first week in February and for about ten days after that. ``During that time he was very nice to her. They then went to visit my father, and stayed with my father, I think, about a month or six weeks.' S.F., 155.

"This testimony, in connection with Fredda Streight's, daughter of deceased, which follows, shows that there was a complete reconciliation which lasted about two months at Ft. Worth, a month or more at appellant's father's, and then a month or more at McGregor.

"Fredda Streight, S.F., 180 to 181, said they went from Ft. Worth to Cleburne and lived there about three months. She says deceased did not curse her mother while at Cleburne. ``We lived at Cleburne. I do not think he cursed her. . . . He seemed to be all right then. I think he had a farm. I think everything went on smoothly at Cleburne. I do not remember any abuses.' That they then went to McGregor and lived out in the edge of town. ``We seemed to get along pretty well out there. We lived out there a month. I do not remember whether he cursed and abused my mother any out there that month or not. . . . It always made an impression on me when he did that. I can not remember him doing that at that time. . . . It seems to me that we were getting along nicely when we were up there.' She says they then moved to another house. ``That at first he did not curse and abuse me any there. He cursed and abused me some. He would do that for just some trifle maybe that I would do.' In her testimony, S.F., 173, she says: ``He would get mad about trifles most of the time. Sometimes he would get mad because there was not something on the table he thought ought to be there, etc., . . . and maybe from something that way he would raise the greatest row that would be absolutely unnecessary.' He abused the witness and her little brother for all character of names, knocked him down. ``He would get so mad sometimes that we could not say anything to him. He would tell us not to come near him, that he was liable to hurt us when he was so mad. He would say that himself and go shut himself up in his room.' S.F., 175.

"On this page witness also tells of a specific instance of where he got mad at her mother, but never in any case is there any intimation of their trouble growing out of appellant's infidelity.

"As to appellant's feeling towards deceased, she says: ``I loved Mr. Streight when he was kind to me.' S.F., 119. Bill of exceptions No. 35 shows that she continued to live with him not through fear of any letters, but on the advice of her cousin, John McLain, to whom she stated all the facts relative to his treatment. In her entire testimony she speaks frequently of being afraid he would kill her and afraid to leave him on that account, but never at any time during the last seven years gives as her reason for living with him anything about those letters. In fact, her statement about those letters, as quoted in the opinion, does not make them a continuing menace or a continuing threat, but a threat in the present to be then executed if she did not return to him, and after the reconciliation, so far as this record is concerned, and so far as presumptions of law relative to remoteness, reformation and time, they became and were a past and closed incident in her life and presumably in his. The court can not presume in the face of the record that those letters were ever mentioned between them again, but appellant had the right to presume, and evidently did presume from the record, as deceased had continued to live with her, that the letters were destroyed and no longer in existence. In fact, the witness Mrs. Wood testifies that appellant told her some few months before the homicide that there was a letter she had written Johnnie Johnson that she wanted the witness to get because her life was going to end in a tragedy and this was the only thing out against her. S.F., 302. Here we have appellant's plain assertion introduced by the State that neither the Wood letter or other Ft. Worth letter were in her mind, but on the contrary, she thought they had long since been destroyed. Deceased never knew or heard of the existence of the Johnnie Johnson letter. In fact, there was no Johnnie Johnson letter, but it was written to his brother, Walter Johnson, and may have been inspired by pure motives. It was written while Johnnie Johnson was on his death bed and only two days prior to his death. S.F., 375.

"There is absolutely no evidence in the record that deceased was ever jealous of Johnnie Johnson. There may have been some misconception with reference to the witness Cunningham and as to the deceased being jealous of him, but such from the record is not the case. Cunningham was a next-door neighbor; owned the house that deceased lived in (S.F., 47), and came on the premises for rent or other legitimate purposes. He was not even a friend of appellant's, as is easily seen by his testimony in the statement of facts. Cunningham and his wife were both present in attendance upon Mrs. Streight when she was sick (S.F., 47-48), and it was at the end of this visit that Streight made the remark about what in the hell is Cunningham doing here. There is nothing in this record from which any inference can be drawn that Streight was jealous of Cunningham, or had any reason to be, and in fact the entire record refutes this idea.

"Taking up again the question of the occasion for quarrels and whether they grew out of deceased's belief in the infidelity of his wife, as asserted in the opinion, Ben Kelley testifies that deceased was constantly cursing and abusing his wife for the vile names set out in the statement of facts, most frequently at the breakfast table. ``He would get mad at almost nothing.' The way the breakfast was fixed, such as that, or maybe the children would not put sugar on the breakfast food. The least little thing. Nothing almost he would get mad at. S.F., 199.

"Miss Mai Belle Neff testifies to an incident on page 204 of the statement of facts, and on page 205 corroborates appellant's statement about her running away from home and falling on Mrs. Neff's back porch on the night that the fuss grew out of the John McLain telephone matter. She says further: ``I have been there quite frequently when he abused them and cursed them about small things.' S.F., 205.

"Glenn Streight, son of deceased, testifies that deceased would fuss and quarrel at the breakfast table about every little thing, and that he had seen him assault his mother and choke her. None of these things grew out of any belief in her infidelity. S.F., 217. He also corroborates his mother about the John McLain telephone incident. S.F., 219.

"Ruth Rayburn, S.F., 240, lived with them two years, testifies in regard to seeing assaults upon appellant and hearing deceased curse and abuse her, and says: ``He was angry; I could not answer definitely what it occurred about, but I think it was because Glenn had not done something the day before that he wanted him to do. He struck her for that. . . . He would curse her and call her vulgar names almost every morning.'

"Mrs. M.H. Rayburn lived with them two years, the same time as her daughter Ruth, and gives substantially the same testimony and says that one time he assaulted her, it was on a Sunday evening when she wanted to go to church and he told her she could not go, and she said she would go and got up and left the room. The balance

of her statement is to the effect that he ran, overtook and assaulted her. S.F., 249-250.

"All of these witnesses testified to the same character of treatment and abuse by the deceased to his son and daughter and calling them the same names in substance.

"All of this testimony absolutely destroys the whole theory upon which this court based its conclusion that these letters were admissible. The evidence shows: First, that there was no threat with reference to the letters; second, that there was a complete and perfect reconciliation after the letter incident, which lasted from five months to a year and that neither the letters nor the incident nor the party to whom they were addressed were ever afterwards referred to, nor were they assigned as a reason for any conduct of either the deceased or appellant. This evidence further shows that the family fusses, or rather the abuses and assaults of deceased upon appellant, did not, as asserted, grow out of his belief and accusations against her of infidelity, but out of ordinary domestic relations and affairs. This is conclusively established and utterly destroys the only theory upon which these letters were held admissible.

There is another proposition we want to assert and that is that no conduct or belief of deceased should render admissible and keep alive these letters, but their admission or rejection must be controlled wholly by the acts, declarations and proved convictions of appellant, and from that standpoint we have a closed incident with reference to these letters from the date they were mentioned the one time in Ft. Worth seven years ago until dragged out of appellant upon cross-examination and over her objection on the witness stand. She was not further during the trial physically able to be examined on redirect, but this record conclusively shows that these letters and the persons to whom they were addressed were wholly out of her life and did not form the basis of any word, act or deed on her part during the entire hiatus of seven years. This is most conclusively proved by her repeated assignments in her testimony of reasons for her actions and conduct, never once assigning these letters as such. The burden is on the State to show that these letters did have some bearing upon this homicide, were in mind at the time of the homicide, and in a measure controlled or influenced the action of appellant. This can not be presumed, but it must appear from evidence to be true. A surmise or possibility will not justify the admission of such inflammatory testimony as this is admitted. Presumption of innocence obtains for the accused by statutory command. Rulings of courts should uphold the statute, not overthrow it, or by indirection destroy it.

"In Woodward v. State, 42 Tex.Crim. Rep., defendant was charged with killing J.H. Ragland. The witness was permitted to testify that twelve years prior to the homicide defendant told him that Ragland had been guilty of incest with his sister. The court held, ``We think the testimony was entirely too remote. It does not tend, as we understand the record before us, to elucidate or explain any mental condition of appellant at the time of the homicide; nor does it indicate that out of this conversation . . . any animus against the deceased had grown upon the part of appellant. It was of a very highly prejudicial character.' The evidence is held not admissible. Some other evidence was admitted in this case of more recent mistreatment and assaults by the defendant on the mother of the deceased and the defendant being armed at the home of the mother of the deceased. The court held that this testimony ``is too remote to pertain to any issue raised in this case.' And in this case it seems that there was some evidence that there was a continuing state of ill feeling upon the part of appellant toward deceased.

"In McAnear v. State, 43 Tex.Crim. Rep., only two years had elapsed since the brother of appellant had a fight with deceased, and the State was permitted to prove this and the evidence showed that after the fight the defendant and his brother again became on friendly terms with the deceased and remained so up until the day of the homicide. The court said: ``We think this testimony is too remote. It does not serve to show animus on the part of appellant or his brother towards deceased and should not have been admitted.'

"In Tomlin v. State, 25 Texas Crim. App., 684, defendant was convicted of rape, and the State was permitted to prove, over his objection, that five years before the trial appellant told a witness that he, appellant, had a medicine which if administered to a woman would make her yield to his desires. Judge Hurt, speaking for the court, uses some rather strong language with reference to the introduction of testimony of this character and his opinion is well worth on principle the time it will take this court to read it. He holds that this testimony might show that the appellant was a libertine and a rake, but nevertheless it was not legal evidence and was highly prejudicial and placed appellant before the jury a confessed rake and libertine capable of any crime to which he might be prompted by his ungovernable passion, and that it was strongly calculated to prejudice appellant with the jury. The case is reversed on this point. And so these letters in this case placed this appellant, if believed, before the jury in the attitude of an unfaithful spouse, lax of virtue and fickle of heart; was highly inflammatory. Its only effect was to influence and prejudice the minds of the jury against her, because it was not shown, as is required, that these letters or that Wood or anything connected with her life seven years prior to the homicide, had anything to do with her actions upon the night of the homicide or were in her mind. And, as above stated, presumptions or possibilities will not be indulged to render this highly inflammatory testimony admissible. If there is any question about it as to the facts being sufficient to demand its admission as explanatory of the conduct and as necessary to an understanding, the courts have frequently said that testimony of this character should be rejected.

"In Wakefield v. State, 50 Tex.Crim. Rep., appellant was charged with homicide and the State was permitted to show that a year before the homicide appellant's mother attempted to induce the witness to kill the deceased in order to get his money. The court says: ``We suppose this was admitted upon the theory that there was a conspiracy between appellant and his mother to kill the deceased. Under the facts in this case we do not believe this testimony was admissible. It was too remote, and so far as we are able to ascertain from this record had nothing to do with appellant's connection with the homicide. It may have shown that at the time Mrs. Hill made this statement she was feeling unkindly towards her husband, the deceased, but they lived together afterwards for a year and appellant was living not far away. The evidence shows that whatever the cause the State may have had grew out of matters occurring upon the evening and just preceding the homicide.' The facts in this case show the homicide grew out of matters occurring within the week, and it is not shown that the letters had any connection with the homicide.

"In French v. State (an adultery case), 47 Tex. Crim. 572, it was held that familiar and indecent conduct between the defendant and his paramour five years before the prosecution was not admissible. The court says: ``But appellant raises the question of remoteness as to the acts of familiarity proven here antedating the offense some four or five years. We hold that said acts of intimacy are too remote. There was ample time for the parties to have reformed or to have become estranged.' It seems to us that this language applies with great force to the facts in this case and that the evidence rejected there came much nearer within the field of legal testimony than that admitted here.

"We respectfully submit that this paragraph No. 19 of the court's opinion should be so reformed as to exclude this highly prejudicial and questionable testimony by which this appellant has been and may likely again be convicted on a charge of murder upon evidence of infidelity. Let her stand her trial upon the charge of murder before a fair and impartial jury upon the legitimate testimony surrounding the homicide and shown to have some bearing upon it.

"Upon the reformation idea we call the court's attention to the fact that even when it is sought to impeach a witness by showing that he was guilty of a felony five years or seven years before the date he is testifying, that unless the State shows that he has since that time followed up the course of crime, a conviction will be held too remote to reflect upon his character and the law will indulge the benign presumption that he is a reformed man.

"With due respect and worthy courtesy to this court, we present this our motion to reform the 19th paragraph of the opinion of the court, again admitting to ourselves as much fault in our insistence upon haste as could possibly attach to an overworked court. The court may readily understand that we regard these matters as of greatest importance or else we should not attempt to burden you with a reconsideration of them and our client with consumption of unnecessary time.

"We respectfully request that the 19th paragraph be reformed."