Roberts v. State , 74 Tex. Crim. 150 ( 1914 )

Appellant was convicted of murder and his punishment assessed at twenty years confinement in the penitentiary.

We think it unnecessary to make any detailed statement of the evidence. Whatever of this testimony is necessary will be given in passing upon the questions determined.

The great preponderance of the evidence is ample to sustain the verdict and would have justified a much severer penalty than was imposed. It was also amply sufficient to disprove appellant's defense of self-defense.

Appellant has several bills of exceptions to the admission and to the exclusion of various items of evidence. The State insists that most, if not all, of these are so clearly insufficient under the well and long established rules as to prevent this court from considering the questions attempted to be raised thereby. We deem it unnecessary to go into the particulars of these rules or their application to appellant's bills.

Appellant was a preacher and lived in the country. The deceased was quite a young man, appellant's son-in-law. He had married appellant's daughter some year or two prior to the homicide. A few months before the homicide the deceased and his young wife had separated, the deceased leaving. His wife went to and remained with appellant's family and him after this separation. The evidence justified the jury to believe that appellant had great hostility towards his son-in-law, after the separation, beginning about, or a short time prior thereto, and was very intensely opposed to his daughter ever going back and living with deceased and did everything he could to prevent this. The evidence also tends strongly to show, if it does not certainly show, that after their separation appellant's daughter, deceased's wife, was under the domination and control of appellant. Sufficiently so, at least, to justify the jury to believe that her testimony in favor of her father and against her deceased husband was greatly influenced, and colored, if not dictated and directed by her father. Some weeks before the killing deceased's wife had brought a suit against him for divorce, alleging several acts of cruel treatment of her by him. She testified on this trial to several acts of cruelty and that at the time and before she filed the petition she had told her father about them. The State contended deceased was not guilty of any of said acts of cruelty and that her father had had her, by reason of his influence and control of her, to bring said divorce suit and make said allegations and give said testimony, and there was evidence tending to show this. The State, in various ways, undertook to impeach the testimony of deceased's wife by showing various statements and acts by her contradictory of her testimony on these points in favor of her father. Among other things alone this line, the State produced, identified and introduced in evidence a letter and the envelope in which it was inclosed which was shown to have been written by deceased's wife to him within two days before the killing. The envelope was addressed to deceased's brother. The letter itself is addressed to deceased and not to deceased's brother. There is merely a postscript addressed to deceased's brother requesting him to give the letter to deceased and in the letter she explains that she addresses it to deceased's brother because she was afraid the mail carrier would tell her father, appellant, that she had written him a letter if she addressed the envelope to him, and she states in the letter that her folks were watching her like everything. In the letter she expresses affection for her husband and asks him why he left and whether or not he blamed her or her father and if her, she apologized, expressed great desire to see him, and that she was willing to live with him anywhere and not afraid to go with him anywhere; that she was then attending church at Pleasant Ridge and that if he wanted her to come and live with him, for him to come for her to that church, and she tells him who to get to help him and whom she had gotten to assist them. In direct response to that letter appellant went to the church the night he was killed for the purpose of getting his wife and saw her and attempted to get her to go with him in a quiet, peaceable way. She showed by her actions and what she said that night that she was very much afraid of her parents and especially of her father, and that her parents were made aware of the fact that her husband was present, talking to her and seeking to have her go with him. Her father at once took her away from the meeting to his wagon some distance from the arbor where the meeting was held, with a view of taking her home, and the testimony shows that he forcibly took her, that she plead with him to let her go to her husband and sought to do so, but he by actual force prevented her from going to her husband, and that her husband, at the time some distance away from her and her father, seeing the trouble and hearing her pleading to go with him, told her that he had received her letter and that he came to meet her in response thereto and that he then had the letter in his pocket. At this time appellant asked him why he was back there and he responded to him that he was there for the purpose of getting his wife and then said to her in the immediate presence of her father, which he heard, that she had written him the letter to come after her and he came in response thereto. The letter and the envelope were taken off of the person of the deceased just after appellant killed him.

The court permitted the introduction in evidence of this letter and the envelope over many objections by appellant. At the time it was introduced and also in the written charge of the court, the court told the jury the letter was admitted solely for the purpose of impeaching deceased's wife, if it did do so, and that they could consider it for no other purpose. The letter bore no date; the envelope in which it was contained was addressed, not to deceased, but to deceased's brother, as stated above, and bore the postmark of July 15th. The killing occurred early in the night of the 17th of July, 1913. The envelope, by order of the court, was sent to this court and is attached to and made a part of the statement of facts. On the back of it there are some splotches of dried blood.

In our opinion the letter and envelope were properly admitted in evidence for the purpose for which they were introduced, and that the court properly controlled the matter by his charge to the jury at the time they were admitted and in his written charge to the jury in submitting the case. We think clearly what deceased's wife said to him in the letter was in effect contradictory of her testimony in favor of her father on this trial. Surely the State had the right to impeach her testimony by any legitimate evidence tending to do so. The blood stains on the back of the envelope, in our opinion, were not of such a character and extent as to inflame the minds of the jurors and there is nothing in the case that indicates it did so. It was proper to introduce the envelope to show the date it was mailed which would also show the date of the undated letter, and that the letter was addressed to the deceased's brother and not to him, though intended for and delivered to the deceased. As said by this court in Cole v. State, 45 Tex. Crim. 225, the question of whether or not bloody clothes or other bloody articles are admissible in evidence in a homicide case, has frequently been passed upon by this court, and as stated therein, "usually it has been held that their admission was proper," whenever they would serve any useful purpose in the case. "If it was relevant to any fact and was properly admitted, the fact that it may have had an injurious effect upon appellant's case (by having blood on it), would not render its admission improper." In no event, as we see it, would the introduction of the envelope in evidence authorize or justify the reversal of this case.

Appellant has a considerable number of bills of exceptions to the testimony of various witnesses to what was done and said by the deceased's wife immediately after the appellant had stabbed him and killed him and in the immediate presence and hearing of, and to, the appellant. It is unnecessary to recite all this evidence and the various bills of exceptions to it. The court qualified the first bill and stated it applied to each of the others, as follows:

"The witness, D.L. George, as well as other witnesses, testified that at the time Pauline Black was down over her husband making use of the language complained of in the bill, the defendant was standing a few feet away, with the knife with which he had done the killing, still open in his hand; that he was a witness to the conduct of his daughter at the time; that at least, a part of her conversation was directed at and to him, and that he, addressing his said daughter at the time, said, in substance, ``I have subjected myself to the persecution of the world for the protection of my family; you are a part of my family, and you hush, hush, hush!' The conduct and the exclamations of Pauline at the time were undoubtedly heard and seen by the defendant; they inspired the reply he made and gave character and meaning to what he said at the time; were necessary to a proper understanding of the very first words spoken by the defendant after the tragedy and while the weapon with which he had killed the deceased was still in his hand and he himself had not left the body of the man slain. His plea was self-defense and his words and conduct immediately after the killing were of vital importance in answer to the question, ``Why he had killed this man,' the only question in the case in fact for the determination of the jury. So, in the opinion of the court, as his daughter was the party addressed, her conduct and her language, at the time, were not only admissible but were of vital necessity in order that the jury might understand what he meant when he replied to her as he did." Unquestionably all of this testimony was res gestae of the transaction and was admissible in evidence. The court committed no error in admitting all of it. This is so well settled we deem it unnecessary to discuss the question. Jennings v. State, 42 Tex.Crim. Rep.; Rice v. State, 54 Tex. Crim. 149; Wynn v. State, 59 Tex.Crim. Rep.; Tooney v. State, 8 Texas Crim. App., 452; Lewis v. State, 29 Texas Crim. App., 201. Many other cases might be cited, but we deem it unnecessary.

As stated above, deceased's wife, some weeks before the killing, had instituted suit against him for divorce alleging several acts of cruel treatment by him to her. She testified to these various acts on the trial, and the trend of her testimony was to show that her husband was guilty of these acts of cruelty to her and that she voluntarily and not at the instance, or in effect requirement, of her father, instituted said divorce suit. For the purpose of impeaching her evidence on this point, the State was permitted to prove by Miss Annie Vandiver, over appellant's objections, that said Mrs. Black told her that her husband had always been good to her and that she loved him and wanted to go back to him; and by Miss Etta Sewell, that Mrs. Black told her that her father made her sue for divorce and that she loved Ira Black. Mrs. Black on her cross-examination denied making any such statements to these two witnesses. This testimony was properly limited by the charge of the court to impeachment of said Mrs. Black. This testimony was properly admitted for that purpose. Appellant sought to show by his daughter, Mrs. Black, and himself that he was protecting his daughter from the cruelty of the deceased and that he had been guilty of these acts of cruelty against her, all for the purpose of tending to show that his action in killing was not malicious but in self-defense and that he believed that he was properly protecting his daughter from deceased when he killed him. This applies also to the testimony of Mr. and Mrs. Arnesman where they testified that on the very day when Mrs. Black brought said divorce suit against deceased she told them that she loved Ira Black (deceased) and if her father made her get a divorce from him, if he went to the penitentiary for twenty years that she would marry him when he came back and that she would rather live with Ira Black walking up and down the public road than to live with her father. In this connection we also state that the evidence showed that her father was about, or had indicated his intention, to prosecute deceased for disposing of mortgaged property and send him to the penitentiary therefor.

Appellant introduced his wife who gave material testimony in his behalf as to his claimed self-defense and about the deceased. On cross-examination she said: "I did not have bitter feelings toward deceased but felt kindly toward him; I was perfectly willing for him to come back to our place; I never said anything harsh or unkind about deceased. I did not say in the presence of Mrs. Ollie Roberts at our home one day that if I were my husband I would kill the deceased." The State was seeking to show her animosity toward, and her unkind feelings against, the deceased; and also to impeach her statement when she said she did not say in the presence of Mrs. Ollie Roberts that if she were her husband she would kill the deceased. Thereupon the State placed Mrs. Ollie Roberts upon the stand, who testified that on the occasion mentioned, Mrs. Roberts, appellant's wife, did say to her, "If I was Willie (appellant) I would kill Ira Black." The sole objection of appellant to this testimony was that it was hearsay. The bias and the animus of a witness is always admissible and the extent and intensity of it can be shown and if denied by the witness, can be proven by others. This is so well established it is useless to cite the cases, but see Pope v. State, 65 Tex.Crim. Rep., 143 S.W. Rep., 611, and Earles v. State, 64 Tex.Crim. Rep., 142 S.W. Rep., 1181, and cases there cited. That the witness is the wife of appellant can make no difference. Her bias and prejudice and the extent of it can be shown the same as any other witness when she has been introduced and testified in behalf of her husband.

After the style of the cause, court, etc., appellant's twelfth bill of exception is:

"Be it remembered that upon the trial of the above styled and numbered cause, and while the witness, Jim Cozart, was testifying for the State, he was asked by State's counsel on direct examination, the following questions, towit: Q. ``At the time you went to Mr. Roberts' place to serve a writ of sequestration on him, sued out by Ira Black, and before the homicide, state whether or not Mr. Roberts said anything about Ira Black?' A. ``Yes.' Q. ``What did Mr. Roberts say about Ira Black at that time?' A. ``He said a good deal; he said for me not to bring Ira Black on that place, and it would not be good for Ira Black for him to lay his eyes on him, or words to that effect.' And thereupon counsel for the State asked witness the following question: Q. ``State whether or not you ever told Ira Black what Mr. Roberts said on this occasion about never wanting to lay eyes on Ira.' To which question and answer thereto the defendant then and there in open court, objected, for the following reasons: First. Because same was hearsay, was done and said in the absence of the defendant, and without his knowledge or consent. Second. Because said testimony was prejudicial to the rights of the defendant and was an attempt to explain the presence of arms on the person of Ira Black at the time of the homicide; and the undisputed proof showed that defendant never knew of said statement by Jim Cozart to Ira Black, and the said statement purported to have been made by Mr. Roberts would not explain the deceased's right to wear arms, or throw any light whatever on the homicide, and was wholly immaterial and collateral matter. And all of said objections were overruled by the court, and the witness was permitted to answer said question to and in the presence of the jury, as follows: A. ``Yes, I told Ira about this.' To which action and ruling of the court in overruling said objections and in permitting said testimony to go before the jury, the defendant in open court, duly excepted and tenders this his bill of exception No. 12, and asks that it be approved and filed as a part of the record herein."

It will be seen by this bill that appellant objected solely and simply to the testimony of the witness that he had told the deceased before the killing what appellant said about him. It is too well settled to need citation to the cases that his objections made to testimony is not a certificate by the judge that what purports to be the ground of the objection is true, but simply and solely that such objections were made. In other words, that the objections are not statements of facts and that the approval of a bill by the court of such objections made is no certificate that the objections state facts. This bill, under all the rules, is wholly insufficient to require or authorize this court to review the question. But considering it, we think it does not present reversible error. Any fact can be proven by circumstantial as well as by direct testimony. If we could go to the record it would show that the deceased some two or three weeks before the killing sued appellant for a lot of personal property, including his personal wearing apparel; that the officer went to appellant with the writ of sequestration to get the property and, in effect, applied to appellant therefor and that the appellant refused to point it out so he could take it under the writ and when the officer told him in effect he would get deceased and bring him back and have him point out the property, appellant made the threats shown above against deceased. The most natural thing for appellant to expect was that when the officer went back to deceased without having made the levy and procuring the property, he would tell the deceased of the threat appellant made against him. The circumstances of this case, in effect, would show that that had been done and that appellant must have expected and had notice it had been, although he swore he did not know it. There are other facts and circumstances in the case which tend to show that appellant was aware this threat must have been communicated to the deceased and that deceased was acting thereon before appellant killed him. The threat was doubtless made by appellant against deceased to be communicated to him and to prevent the deceased from coming upon his, appellant's, place and pointing out the property to the officer. The introduction of the testimony did not present any reversible error. Hunter v. State, 59 Tex.Crim. Rep.; LaGrove v. State, 61 Tex.Crim. Rep.; Farris v. State, 56 S.W. Rep., 336.

In another bill appellant complains that the court refused to permit him to introduce and read in evidence the said petition for divorce by Mrs. Black against deceased and her affidavit thereto and the fiat of the judge granting an injunction against deceased, restraining deceased from seizing, taking into his possession or selling certain personal property described in the petition, or in any manner interfering with her rights in said property or possession of the same and from interfering with her or annoying her or coming around or about her home. The bill does not show how or in what way this petition, oath and fiat were in any way admissible in this case, or for what purpose they were admissible. The bill simply shows that they were offered in evidence, copying them, and that upon the State's objection the court did not permit them to be read. The record shows that the court permitted any and all witnesses who were offered, to testify all about said divorce suit, the grounds thereof and in fact everything connected therewith that could have at all been admissible as bearing upon any proper issue in this case, and the bill does not show that the court committed any error in excluding said papers from the jury.

Appellant has another bill of exceptions complaining that when he objected to a certain question asked him by the State on cross-examination, the court said: "You are becoming very technical on both sides. I will ask you to ask the witness what, if anything, was said by the parties." The court charged the jury, in his written charge, that the said remarks by the court must not be considered by them for any purpose whatever. This matter is trivial and shows no reversible error.

The only other question to be considered is appellant's objection to paragraph 13 of the court's charge. Whenever an objection is made to any paragraph of the court's charge, it is necessary and proper to consider the whole of the charge on the subject. While quite lengthy we will copy the whole of the court's charge on the subject of self-defense. It is:

"10. A reasonable apprehension of death or serious bodily injury will excuse a person in the use of all necessary force to protect his life or person, and it is not necessary that there should be actual danger, provided he acts upon a reasonable apprehension of danger as it appeared to him, from his standpoint at the time, and in such cases, the party acting under such real or apparent danger is in no event bound to retreat in order to avoid the necessity of killing his assailant. If from the evidence you believe that at the time the defendant killed the deceased, the said Ira Black was making, or was about to make an attack upon the defendant with a pistol and that from the manner and character of such attack and the relative strength of the parties and defendant's knowledge of the character and disposition of the deceased, caused him to have a reasonable expectation or fear of death or serious bodily injury, and that, acting under such reasonable expectation or fear, the defendant cut and killed the deceased, or if, after hearing all of the evidence, you have a reasonable doubt as to whether the defendant acted in self-defense as the same is herein explained to you, then you will acquit him and say by your verdict, not guilty.

"11. If you find and believe from the evidence that at the time the defendant cut the deceased, the deceased was armed with a pistol and if you find that he made any assault upon the defendant with said weapon, or any gesture showing an immediate intention to use said weapon against said defendant, then the law will presume that he intended to kill or inflict serious bodily injury upon the defendant with said weapon.

"12. If you find and believe from the evidence that prior to the homicide, the deceased, Ira Black, had made threats against the life of the defendant, and if you further find that at the time of the homicide the deceased did some act which, together with all the surrounding circumstances, as viewed from the standpoint of the defendant at the time, reasonably manifested to the defendant an immediate intention on the part of the deceased, to kill the defendant, or to inflict upon him serious bodily injury, and if from such threats, if any were made, and from such act or acts upon the part of the deceased, if any, at the time, and all the other circumstances of the case, you believe that the defendant killed the deceased in the defense of himself against danger or the reasonable appearance of danger or loss of life or serious bodily injury at the hands of the deceased, you will acquit him.

"13. You are further instructed that as a part of the law of self-defense as the same applies in this case, that the deceased, Ira Black, had the legal right to go to the place where he was killed for the purpose of peacefully interviewing his wife and asking her to go with him, and if he had been informed that threats had been made against him and believed that his life was in danger or that he was in danger of serious bodily injury, then he had the right to arm himself with a pistol and go to the place where he was killed, and if from all the evidence, you believe beyond a reasonable doubt that the deceased, Ira Black, did not draw his pistol and did not make any motion or gesture with his hand indicating an immediate intention to draw said pistol before the defendant started at him with his knife, and that there was no danger or reasonable appearance of danger to the defendant, judged from his standpoint, at the time the defendant started at the deceased with his knife, then you are instructed that the defendant would not be acting in self-defense, even though you should find that after the defendant started towards the deceased, the deceased drew a pistol and struck the defendant with it."

The court's charge was submitted to appellant after the evidence was concluded and before the argument began and at the time appellant made this objection:

"The defendant excepts to the thirteenth paragraph of the court's charge, and the whole of said paragraph, because the same is not the law applicable to this case, because it is upon the weight of the testimony, and because the said charge is not based upon any fact or facts introduced in evidence before the jury trying this said cause, and because the whole of said paragraph is prejudicial to the rights of the defendant, and because the undisputed proof in this case shows that if the defendant ever made any threats at or toward deceased, or that if the same were ever communicated to the deceased, the defendant had no knowledge of such communicated threats, at the time or before the time of the homicide, and because the whole of this paragraph places the burden upon the defendant to prove his innocence, and limits the defendant's right of self-defense." It will be seen that most, if not all, of appellant's objections were very general and pointed out no specific error so as to call the court's attention thereto and have any defect, if there was any, remedied by the court. For instance, he says of the whole paragraph 13 of the court's charge: "The same is not the law applicable to this case." Wherein or how, is not pointed out. Again, "It is upon the weight of the testimony." The same can be said of this. We think it is not upon the weight of the testimony, even going to the whole of the testimony to ascertain it. To take the charge as a whole, we think it presents everything that was necessary or proper to be presented, in a fair way, as raised by the testimony and called for by the testimony; that neither this paragraph, nor the charge as a whole, places the burden upon the defendant to prove his innocence. It does not limit his right of self-defense, but on the subject as shown by the charge, it tells them if they believe beyond a reasonable doubt certain facts, that those facts showed no self-defense. In other words, it presented the State's side of the issue which was proper.

In our opinion the record in this case shows no error and the judgment will be affirmed.

Affirmed.

ON REHEARING. June 17, 1914.