Menefee v. State ( 1912 )

Appellant was convicted of murder in the first degree under an indictment charging him with the murder of Frank Glasgow.

The record is very voluminous and shows many exceptions taken to the ruling of the court during the trial. These involve the application for continuance, change of venue, charges given and refused as well as evidence admitted and rejected. The theory of the prosecution was that appellant was a principal in the transaction, and upon this theory the case was tried. In view of the disposition of the case, some of the troublesome questions will not be discussed, among others, the application for a continuance, motion to change the venue, and the alleged misconduct of the jury.

In regard to the application for continuance, and the matters growing out of the jury question, it is sufficient to say that they will scarcely arise on another trial, and can not do so as they occurred upon the trial from which this is an appeal.

We will dispose of the motion for change of venue with the statement that if an application is again made, and the evidence is such as was developed by this record, the motion should be granted.

Murder in the first degree alone was submitted. Submitting this to the jury the court thus applied the law:

"Now, if you believe from the evidence beyond a reasonable doubt that the defendant, A.J. Menefee, did in the County of Hill and State of Texas, on or about the 21st day of June, A.D. 1911, as charged in the indictment, with express malice aforethought, with a gun, being a deadly weapon or instrument well calculated and likely to produce death by the manner in which it was used, with a sedate and deliberate mind and formed design, acting together with one Jim Fox, unlawfully shoot and thereby kill the said Frank Glasgow, you will find him guilty of murder in the first degree," etc.

This is the only allusion to the law of principals, or the law of accomplices, found in the court's charge. Error is also properly reserved to the failure of the court to charge upon murder in the second degree. Error is also properly reserved to the failure of the court to charge the law of accomplices, that is if appellant was not a principal but only an accomplice, then he could not be convicted under this indictment.

These three errors are mentioned, as they may be considered together. The case is purely one of circumstantial evidence. No witness testified to the presence of the defendant at the time and place of the homicide. Evidence for the defendant expressly excludes his presence. We deem it hardly necessary to state the evidence in this connection as it is voluminous, but the State failed to show appellant's presence, and the defendant proved by several witnesses that he was at home and in bed at the time of the homicide, and had no connection with the killing. The State proved by the witness Sanders that he saw two men at or near the Presbyterian church where the homicide is shown to have occurred about 12 or 12:30 o'clock at night. He says that he recognized one of these as being appellant; he was at a distance of something like 175 to 200 feet. The homicide occurred about 3:30 or 4 o'clock, three or four hours after Sanders says he saw these two men at the point designated. Several witnesses testified they passed this identical spot between the time mentioned by Sanders and the time of the homicide and one of them shortly before the shooting. This testimony covers most of the time, or at least a large portion of the time between the time Sanders says he saw appellant at that point and the time of the homicide. The defendant proved by his wife and others that he was at home and did not leave home that night at all until the sheriff or officers came to his home some time after the homicide, when he got up, dressed and went away with the officers. The details of this testimony, we think, would be of no particular value, and, therefore, it is not stated.

The statement of James Fox was introduced by the State. This shows that shortly after the killing, say fifteen or twenty minutes, Fox called up the sheriff and surrendered to him, with the statement that he had killed deceased by shooting him twice with a shotgun, handing the shotgun to the sheriff. Both barrels of this shotgun had been recently discharged. Deceased had been twice shot with a shotgun. The shells used by Fox in shooting were the same character exactly as those he had on his person. These shells had been bought by Fox about 12 o'clock that night from a hardware man. These shells are accurately described, and are shown to have been the shells used by Fox. It is a conceded fact also that there were but two shots fired. The details of the killing on the part of Fox were not stated in the evidence either through Fox's statement, or from any other source, otherwise than the deceased was shot about 3:30 or 4 o'clock in the morning at the point designated by Fox. To connect defendant with the matter as best it could the State proved animosity on the part of appellant towards deceased, and undertook to show that deceased had been intimate with Fox's wife. The evidence does show, we think, with reasonable accuracy, if not certainly, that Fox killed the deceased on account of insulting conduct and language and matters in connection with his, Fox's wife on part of deceased. There are several matters introduced by the State to show animosity and motive on the part of appellant. The State showed that Fox was at appellant's house that night somewhere about 11 o'clock, and appellant was heard to state to Fox, in substance, "take this and buy you a breakfast." This seems to have been a quarter of a dollar given by defendant to Fox with which to pay for his breakfast, and it is shown fairly well that Fox instead of using the money to pay for his breakfast purchased the shells he subsequently used in killing the deceased. It is also in evidence that appellant advised Fox to dispose of his gun and use the money in going somewhere to secure employment. This is but a very short statement of the case, the evidence being very voluminous.

Under the evidence the court should have given in charge the law of murder in the second degree. Before the court would be authorized to refuse a charge on murder in the second degree, the case being one of circumstantial evidence, the facts and circumstances must exclude murder in the second degree, and must further be of such cogent character as to constitute murder in the first degree to the exclusion of murder in the second degree. For collation of authorities see Branch's Crim. Law, section 427. If there should be any doubt, however slight, the court should not solve that doubt against the defendant, but should leave the matter to be decided by the jury under appropriate instructions. Whether this was an accidental meeting on the part of the slayer with deceased the evidence does not show. The facts and circumstances attending the meeting are not given. Of course, if appellant was not present he could not be held as a principal, but if he was present and Fox, on meeting the deceased, had demanded an apology, and deceased had become the aggressor, the case would doubtless not be higher than manslaughter, and might suggest the issue of self-defense. These are matters not made certain by the testimony in the case, and in fact upon these questions the record is silent. All doubts on issues of this character are in favor of the accused, and not against him. We hold, therefore, the court was in error in not charging upon the issue of murder in the second degree.

The charge given by the court in regard to principals has been stated. This informed the jury that if appellant, acting together with James Fox, killed deceased on his malice aforethought, he would be guilty of murder in the first degree. The law of principals is nowhere defined other than as stated, and left the jury to ascertain as best they could what the court meant by "acting together with Jim Fox." The law of principals is, that the defendant in order to be held as a principal must have been present, knowing the unlawful intent of Fox, aided and assisted, or encouraged by acts or words Fox in shooting the deceased, and this upon express malice aforethought, in order to render him guilty of murder in the first degree. If it is conceded that Fox is guilty of murder in the second degree, and this is not excluded by the evidence, except upon the mere fact of proof of the killing, then appellant would not be guilty of a higher offense than murder in the second degree. The court, under the facts of this case, and under the charge given, eliminated from the consideration of the jury one of the most important, if not the most important, questions in the case, if it be conceded Fox did the killing and would have been guilty of murder, that is appellant's presence. Under the facts if Fox killed the deceased under the advice of appellant, and appellant furnished him the means by which it was done, but was absent and not then doing something in furtherance of the common design under the law of principals so as to make him either bodily or constructively present, then appellant would not be guilty as a principal under our statute and under the allegations in the indictment. The court should, therefore, have charged the jury the law of accomplices, to the effect that if Fox killed the deceased and appellant was not present, then appellant could not be convicted under this indictment as a principal. It is true the court gave a charge on alibi, but that does not meet the question. The law of the case must be given in charge to the jury, and the law of principals should have been given in the first instance, and in the second place the jury should have been charged with reference to the law of accomplices. See Branch's Criminal Law, section 683. Appellant being indicted as a principal, and there being evidence showing that he was not present, this required a charge that the jury could not convict as a principal under that state of case, and this although the jury might have believed him to be an accomplice or an accessory. In order to convict as a principal, the accused must be indicted as such, and the evidence must sustain such indictment. Recurring to that portion of the charge a moment which instructed the jury, if appellant, acting together with James Fox, killed deceased, the jury may have believed and could have believed that his presence, or his acting as a principal was not necessary; that under that peculiar language if he was in any way connected with Fox in the killing, that he could be convicted under the indictment preferred. In a certain sense appellant if he was an accomplice would be connected with James Fox in the killing, but not being present nor acting as a principal, he could not be convicted under this indictment. This language of the charge authorized the jury to convict whether appellant was present or not, and solely upon the ground that he may have been connected in some way with Fox. The evidence excludes the fact that appellant did the killing. Fox did it; the evidence shows that he did, and the State proved this by Fox's statement, and is bound by that statement unless disproved. The statement of Fox to the effect that he did the killing, introduced by the State, bound the State so far as the force and cogency of Fox's statement would indicate. There were but two shots fired, and it is proved conclusively that Fox fired those two shots. This but intensifies the proposition that a charge on accomplice testimony should have been given.

We deem it unnecessary to discuss the weight and effect of the statements and confessions and admission of Fox introduced by the State. It is sufficient for this opinion that the State having placed this confession or statement of Fox before the jury, was bound by it unless disproved, and it became incumbent upon the State, before a conviction could be had, to show in some way that appellant aided or assisted Fox as a principal and the jury should have been appropriately so charged. The State having put in Fox's confession that he did the killing, and failed to show appellant's presence, under this indictment he should have been acquitted. This has been the rule in Texas under all the authorities since Pharr v. State, 7 Texas Crim. App., 472. See also Pratt v. State, 53 Tex.Crim. Rep.; Pratt v. State,50 Tex. Crim. 227; Combes v. State, 52 Tex.Crim. Rep.; Gibson v. State, 53 Tex.Crim. Rep.; McKinney v. State,48 Tex. Crim. 404; Jones v. State, 29 Texas Crim. App., 20. We think enough has been said with reference to the condition of the case viewed from the standpoint of the charges, without further elaboration.

A bill of exceptions shows substantially as follows, that the State, on cross-examination of Mrs. Fox, wife of James Fox, asked her if she had not called up Ted Robinson at Captain Jackson's cotton office over the telephone at night-time. To this she replied she had not. The court, over several objections of appellant, permitted the witness Miss McSpadden to testify that Mrs. Fox did have a conversation over the telephone with Ted Robinson and had at night-time asked Ted Robinson to come to her house, stating that her husband was absent, and the statement of facts is referred to to more fully disclose the evidence in this connection. This evidence was inadmissible. It is a little difficult to see what connection the conduct between Mrs. Fox and Ted Robinson had with the defendant's case. One of the theories of the State was that appellant had been intimate with Mrs. Fox, but what connection the intimacy, if any existed, between Ted Robinson and Mrs. Fox had to do with defendant's case, is not made to appear. It was an attack upon her reputation for chastity if it occurred, but it did not connect the defendant with it. It was hearsay as to defendant and not authorized.

Another bill recites that a conversation occurred between Fox and the witness Zarafonetis in the city of Fort Worth, about sixty miles from Hillsboro, the scene of the homicide, in which Fox told the witness to tell the defendant Menefee to write to him all about it, and told the witness to be sure and telephone Menefee about the message as soon as the witness should reach Hillsboro. This witness testified as follows: "He told me he wanted to hear on the first train. I told him I would go to Hillsboro about 11 o'clock and it would be too late for Dr. Menefee to write him and he said it did not make any difference what time I got there, to phone Dr. Menefee and tell him he expected a letter by the first train. I told him the first train left at 5:30 and he would not have time to write a letter and he said he expected a letter tomorrow any way from him and I left him. He told me as soon as I got to Hillsboro to phone Dr. Menefee and tell him to write him a letter all about it. He did not say what about, said he was anxious to get a letter from Dr. Menefee." Without going further into the details of this bill of exceptions, and its connection with the case, it is sufficient to say this evidence was inadmissible, for this bill recites the witness never communicated with Dr. Menefee, and it was, therefore, matters occurring between the witness and Fox of which appellant was ignorant.

Another bill recites that the witness Odell was used by the State as a witness, and was asked about matters about which appellant consulted him as an attorney and about which the witness gave him advice, the witness himself testifying that he understood the relations between attorney and client existing in regard to the matter. We do not care to go into this matter further than to say this bill is well taken. An attorney can not be questioned about matters about which he advised his client; they are confidential communications and are exempt by statute.

Another bill recites that the State relied for a conviction upon circumstantial evidence, and defendant interposed the defense of alibi, and the testimony of Mrs. Menefee, which is correctly reported in the statement of facts, and the testimony of Mrs. Strudivant, also reported in the statement of facts, and of Mrs. Cobb also reported in the statement of facts, tended to support this alibi. The evidence showed immediately after the homicide Fox walked to the sheriff's office and telephoned the sheriff and surrendered to him, and told him that he had killed Frank Glasgow, and delivered his shotgun to him, both barrels of which were shown to have been freshly fired. The State then placed Fannie Fryer on the stand during its case in chief and proved and developed the things which are reported in this bill. It is further recited defendant had offered no evidence concerning the matters complained of in the bill, but same were developed by the State in chief during the examination of the witness. This bill is a very lengthy one, and recites, in substance, that the witness had attended as nurse a woman by the name of Hunton who had given birth to a child; that the woman had been also attended by the defendant as physician; that after the child was born it was put by defendant in a washstand, and on his return the child made a noise and that defendant gave it medicine when the child died, and the defendant carried it off, and that that defendant suggested to the mother of the witness that the child be burned, and that she had testified before the grand jury, and that she had been brought to the courthouse by Frank Glasgow and that she had told the defendant that Frank Glasgow has brought her to the courthouse, all of which more fully appears by her testimony, which was objected to by the defendant upon various grounds hereinafter set out. It is unnecessary to give details of this bill. It is very lengthy. It covers a great many pages in the record, going into all the details known to this witness in regard to the woman Hunton, her going to Hillsboro, being delivered of the child, and all the acts and circumstances and conversations occurring between the parties, and the propositions made by defendant rejected by them in regard to this whole transaction. This evidence was, we presume, offered and admitted on the theory that appellant had ill will towards Glasgow for his attempted prosecution in regard to this matter. The fact that Glasgow had undertaken to prosecute appellant in regard to this matter may have been admissible to show motive and ill will on the part of the defendant towards Glasgow, the deceased, but as to all the details in regard to the birth of the child and the acts of the parties, same would not be admissible. The details of the testimony of this witness were gone into practically as if they were trying appellant for infanticide or abortion or some criminal case growing out of the confinement of the woman Hunton and the death of the child instead of trying appellant for the homicide of Glasgow. This character of examination is not permissible. It placed defendant before the jury in the attitude of being prosecuted for whatever offense there might be growing out of the transaction with the woman Hunton. This, of course, would justify and authorize the defendant to go into all the defensive side of the matter and meet all of the testimony of this kind as best he could from the standpoint of that issue. The rule we understand to be well settled, that the details of extraneous crimes or supposed extraneous crimes will not be permitted even to show motive. The fact that an accused may have ill will towards a deceased can be shown, but the details of the extraneous crime would not be permitted to go before the jury. It would involve the trial of the extraneous crime.

There are other bills of exception along the same line of thought where the State was permitted to go into many extraneous matters, not only the fact that these matters existed but into all details and circumstances at great length. What has been said in regard to the above bills may be said generally of these bills. The examination of the witnesses and introduction of testimony took the widest possible range, and introduced a great many things, details and circumstances that ought not to have been in the case. Upon another trial the State may be permitted to prove facts that show motive on the par of appellant against deceased where it connects with deceased as operating upon the mind of appellant any ill will or supposed ill feeling or animosity that he may have cherished, otherwise the testimony would not be admissible, and even the details of those other matters are not permissible. We make these few general remarks, and the trial court will understand, without going into a discussion of the great number of bills reserved, amounting to forty-five in number.

The judgment is reversed and the cause is remanded.

Reversed and remanded.

ON REHEARING. June 26, 1912.