Hanna v. State , 46 Tex. Crim. 5 ( 1904 )

DAVIDSON, Presiding Judge.

Appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for twenty-five years.

The State used Beulah Crosby as a witness. She was the stepdaughter of appellant and had been going around the country with him under circumstances which would leave the inference that their relations were criminally intimate. On the night of the homicide they were occupying a room some miles distant from where deceased, who was the wife of appellant, was evidently assassinated. This witness testified that on the night it is supposed deceased was slain, she thought appellant got up about 9 o’clock at night and went out of the house. About 4 o’clock next morning, as near as she could guess, he returned. Of course, this was guesswork, for she had been asleep both before and after he went out, as well as before and after his return. She also stated that appellant had expressed his intention to her of killing deceased. She testified that while enroute to Forney, in charge of the officers, she occupied a buggy with Yates, who informed her that the assistant county attorney, Mr. Coon, had hung four negroes, and she would be the fifth, unless she told the truth about that matter—referring to the homicide and her supposed knowledge of appellant’s connection with it; that they then' stopped the buggy under a big elm tree, and Mr. Coon and Deputy . Sheriff Anderson drove up, and after reaching them, Coon got out of his buggy and came to where she and Yates were and put a rope around her neck, and that she then told of appellant having said to her on Friday before her mother was found dead that he was going to kill her mother. This seemed to have been brought out on cross-examination. On redirect examination the county attorney asked this witness if she did not tell Bob Coon, (the assistant county attorney) and Jim Anderson (deputy sheriff), at the barn on the Gibson place, after appellant was arrested and before she and the officers started to Forney, that she knew something about her mother being killed but was not going to tell them what it was, because she was afraid appellant would kill her. She denied this, and the State was then permitted to prove that she did make the statement. To this several objections were interposed. The court admitted this upon the theory of impeachment. This was a State’s witness, and had stated nothing adverse to the State. She had simply denied making the imputed statement. When she made this denial, the matter should have ended. This was simply a failure to prove a statement, and the State was not authorized, under the peculiar circumstances, either to sustain or impeach the witness. This character of testimony could not be introduced against appellant under the guise of impeachment. It was a matter with which he had no connection. The occurrences happened in his absence. And besides, it was but an expression of opinion on her part in regard to her fear of appellant.

In another bill it is made to appear that on Sunday, after the death of deceased, a grave was being dug for the purpose of interring the body of deceased. There were several negroes present, among them, appellant, who was sitting by the side of one Madden, looking in the grave. Witness Marse testified that he and Wright also went to the grave and when within about fifteen feet Wright said, in a conversational tone rather loud, “that dam negro killed that woman.” That appellant dropped his head, got up, and walked around the grave and went somewhere not noticed by the witness. That there was nothing said in reply by anybody, and nothing more was said on the subject. Various objections were urged to this testimony. Without going into the falsity of this statement by the witness, as gathered from the testimony of other witnesses, we are of opinion that this statement was not admissible. It seems that all those present were negroes, and there was nothing in this remark which pointed out or particularized appellant, nor that it was said in such manner as to call it to his attention, or to indicate to him that he was the party referred to and called upon to make a statement. Felder v. State, 23 Texas Crim. App., 477. To entitle the State to introduce in evidence the declarations of bystanders, it must be clearly shown that defendant understood himself to be accused of the criminal act committed, and the circumstances must have been such as to require of him a response; and even under this character of case, the testimony being properly admitted, the court should instruct the jury as to the legal functions or bearing of this evidence. Hnder the ruling in the Felder ease, we think this testimony was improperly admitted.

The remarks of the county attorney with reference to the witness Joe Ashley will not be repeated upon another trial, and it will not be discussed.

Attached to the motion for new trial is the affidavit of E. W. Mitchell, who was foreman of the jury that convicted appellant. While considering their verdict he states that argument was made that appellant ought to have brought before the jury Joe Bowman as a witness. It seems that Joe Bowman had left the State, and was placed in such relation to the facts of this case that his testimony may have been of more or less cogency. But whether this be true or not, we believe the jury should not have used the absence of Bowman as evidence against appellant. It was further contended that appellant should have shown the whereabouts of Bowman on the night of the supposed homicide. This should not have been used against appellant. If living in the same neighborhood of the homicide Bowman’s whereabouts were not accounted for, as it seems the other witnesses were, this may have been a fact in favor of instead of against appellant. It was also used by the jury as an argument in their retirement that appellant should have produced as a witness his 9-year-old stepdaughter, who was in the house where her mother was slain on the night of the alleged homicide. If as a matter of fact this little negro girl was in the house where her mother was slain, and had sufficient intelligence to • make a competent witness under the peculiar facts of this case, it was obligatory on the State to produce that witness before the jury. This is a case of circumstantial evidence, not of a cogent character, and the main criminating facts testified to by the accomplice, Beulah Crosby, which were to the effect that she had been asleep before 9 o’clock. She aroused about that time, as well as she could guess, and saw appellant leave the room where they were sleeping; and later on he returned about the hour of 4 in the morning. This was entirely guesswork on her part as to time, because she had been sleeping and waking up at intervals during the night. To say the least it was guesswork as to time, and under such circumstances is very doubtful testimony, and very unsatisfactory. It was further used as an argument against appellant that as Beulah Crosby testified that appellant left the cabin on the night of the supposed homicide, as indicated by her testimony, and returned aS before stated, about 4 o’clock, as supposed by the witness, that no one had denied such testimony; that no one had testified he did not leave the cabin as already testified by Beulah" Crosby. It is urged and insisted that this is a comment on the failure of appellant to testify in his own behalf. Under the peculiar circumstances, we believe this contention is correct. The witness Crosby locates herself and appellant in the room where they slept, and her testimony excludes the presence of anyone else. Under this state of facts there was no other witness who could have possibly testified that appellant did not leave the room that night, except himself. We believe this was a comment upon his failure to testify, and that it was used adversely to him.

For the reasons indicated the judgment is reversed and the cause remanded.

Reversed and remanded.