Levy v. State , 28 Tex. Ct. App. 203 ( 1889 )

White, Presiding Judge.

We have maturely considered, weighed, and determined every question raised in the voluminous record before us, and so ably submitted in the brief and oral argument of distinguished counsel for the appellant. Many of these questions will not be noticed further than to remark that under well settled rules and decisions they either fail to show any error whatsoever, or at most, none of them reversible error, in the rulings complained of. We only propose to discuss; such matters as present the most serious issues in the case.

Defendant has been found guilty of manslaughter. Certain evidence-with regard to uncommunicated threats was held inadmissible by the court. In our opinion the proposed excluded evidence, as set forth in the bills of exception, shows vituperative and abusive language about rather than threats of violence against the defendant. It could only be cumulative of the great amount of similar evidence which was freely admitted by the court. If the proposed evidence could be fairly construed as threats, still, being uncommunicated, they could not possibly have influenced the conduct of defendant, or had any bearing upon or afford any presumption as to his action in killing deceased, unless there-had been a doubt as to which of the parties commenced the attack, in which case such uncommunicated threats would be admissible and proper evidence for the purpose of showing that, in all probability, the deceased made such attack, and his motive in doing so. Whart. Crim. Ev., 9 ed., sec. 757. Such evidence has also been held admissible to corroborate evidence of communicated threats previously admitted. Holler v. The State, 37 Ind., 57; Cornelius v. The Comm., 15 B. Mon., (Ky.) 539; Horr. & Thomp. Self-Def., 568, 569. But such evidence could possibly have no weight in establishing manslaughter or in mitigating its punishment, because manslaughter is predicable only upon “adequate cause,” and facts unknown to defendant can not enter into and become constituent elements or factors in creating “adequate cause.” But as stated above, the proposed evidence, as it is set forth, can not by any fair construction of language be denominated threats, or indeed, anything more than vulgar and abusive epithets; and such being their character, they were properly excluded because uncommuuicated, and affording no light as to the homicide. There was any amount of such evidence admitted.

Clothing worn by deceased at the time he was shot was permitted to be produced in evidence before the jury. Such evidence was admissible and proper. King v. The State, 13 Texas Ct. App., 277; Hart v. The State, 15 Texas Ct. App., 202, and authorities cited. See also 75 Ala., 14; 65 Ga., 508; 61 Cal., 391; 121 Mass., 69; 90 Ind., 320; 99 Ind.,413; 8 Crim. Law-Mag., 640. Deceased’s coat was identified beyond question as the one worn by him on the fatal occasion. It had been given to a negro, who had worn it since it had come into his possession, and he had cut off the skirt of the coat and his wife had sewed patches over the bullet holes in the side and breast. There was not the slightest evidence, however, that there had been any illegal or unwarranted tampering with said coat, nor is there any pretence that it did not show the character and location of the bullet holes just as they appeared upon it the day of the homicide.

When defendant’s witness Ditto was upon the stand the prosecution, for the purpose of laying a predicate to contradict his testimony, asked him on cross-examination, fixing time, place, and parties, if he did not tell Matt Oldham that he did not see the killing of Joiner by Levy, and that he knew nothing about it. To which the witness replied that he “did not remember whether he.did or not.” And again, fixing time, place, and parties, the witness was asked if he did not tell Matt Oldham that he did not see Levy shoot Joiner, and did not know anything about the killing, and was glad of it, as he did not wish to be a witness in the case. To which the witness replied that he “ does not remember telling Matt Oldham any such thing.” Matt Oldham was called by the State to prove that the above statements were made by said witness Ditto. Defendant objected to such contradictory evidence, upon the ground that, it is only upon a denial, direct or qualified, by the witness that he had made such statements that proof of his having done so was authorized and allowable. The court overruled the objection, and permitted the-contradictory statements to be proved. This was not error. In Walker’s, case, 17 Texas Ct. App., 16, it was held that “when a witness denies or fails to remember that on former occasions he made statements inconsistent with his testimony on the trial, evidence that he did make such statements is admissible upon the establishment of a proper and sufficient predicate.”

Upon the admissibility of this character of evidence the Supreme Court of Alabama say: “The rulings in such cases have not been uniform. Phillips in his work on Evidence says that Tindal, C. J., in a case before him, ‘said he had never heard such evidence admitted in contradiction, except where the witness had expressly denied the statement ,’ and he rejected the evidence; and on another occasion Lord Abinger, C. B., expressed a similar opinion. But Parke, B., in a case before him held that contradictory statements of a witness could be introduced to impeach his evidence, though in order to lay a foundation for them, and to enable the witness to explain them, ‘ a proper predicate must be laid. If the witness admits the conversation imputed to him there is no necessity to give further evidence of it, but if he says he does not recollect, that is not admission, and you may give in evidence on the other side to prove that the witness did say what was imputed, always supposing the statement to be relevant to the matter at issue.’” 2 Phil, on Ev., 4 Am. ed., with Cowen & Hill’s and Edwards’ notes, 959, 960.

We agree with Hr. Phillips that the ruling of Baron Parke is the most sound and fittest to be followed. If the rule were otherwise is might happen that under the pretense of not remembering a witness who has made a false statement and knows it to be false would escape contradiction and exposure. This particular question seems rarely to have come up in American courts whose decisions are reported. We find, however, that in Vermont the rule corresponds with that adopted by Baron Parke. Holbrook v. Holbrook, 30 Vt., 433. “If the witness says he has no recollection of having made such contradictory statements they may be proved.” Payne v. The State, 60 Ala., 80. See also Williams v. The State, 24 Texas Ct. App., 637.

The only other matters we propose to discuss are the complaints that have been urged to the charge of the court as given, and the refusal of certain requested instructions propounded in behalf of the defendant.

It is urgently insisted that the charge upon manslaughter was erroneous in that it restricted “adequate cause” alone to insulting language used by the deceased towards or about the defendant’s mother. Defendant has been found guilty of manslaughter, and in our opinion if manslaughter be in the case made by the fasts, it rests solely upon the insulting language of deceased about or towards the defendant’s mother. Defendant’s language used at the instant after he fired the fatal shot, as testified to by his witnesses Ditto and Darwin, “I am no son-of-a-bitch, and my mother is no whore,” most clearly indicates his motive in and the cause which impelled him to commit the homicide. Some of the State’s witnesses also say that Levy remarked, “I am no son-of-a-bitch;” “he can’t call me a d—d son-of-a-bitch.” If these latter were either of.them the cause of the killing, then to use such expression about another would not come within the legal meaning of our statutory terms “insulting words toward a female relative,” and would not be adequate cause to reduce a killing to manslaughter. Simmons v. The State, 23 Texas Ct. App., 653; Willson’s Crim. Stats., sec. 1022.

It is objected that the sixteenth paragraph of the court’s charge is not sufficiently full. The court’s instruction was, “if defendant sought Joiner and brought on the difficulty with him and killed him, then in such case the defendant can not rely on self-defense, and can not avail himself of threats made against his life.” It is insisted that this instruction is incomplete in that if should have been further supplemented by the additional converse proposition, that “if defendant sought Joiner, not for the purpase of provoking a difficulty with him, but to ask him to refrain from further talking of and about him, or to retract some abusive language he had used towards defendant, or for any other innocent purpose, and that Joiner, before any act done or word spoken by defendant, made a hostile demonstration as if to draw a weapon and defendant then killed him, that then defendant’s right of self-defense would not be impaired or lost.” And upon the same subject it is claimed for error that the court refused defendant’s second requested instruction to the effect: “That if defendant, after being informed of the vile and opprobrious epithets and language used by deceased towards him, and of the serious threats to take his life, armed himself with a shot gun and sought an interview with deceased, not for the purpose of provoking a difficulty with deceased and doing him serious bodily harm, or taking his life, and that he only carried the gun for his own protection, and that as soon as Joiner saw him (defendant) he made an hostile demonstration as if to draw a weapon, and defendant thereupon shot and killed him in his own necessary self-defense, you will find defendant not guilty.” In our opinion the evidence did not call for or warrant these additional instructions. They announce sound principles if they were only applicable to the facts.

We have seen that from the language used by defendant the instant after the killing, the only inference deducible is that he killed deceased because of his insulting language concerning his mother. If that was the provocation, and he sought the occasion with the intention to avenge the insult by killing deceased, then it matters not, his own intention being to commit a felony, whether deceased attempted to draw a weapon or not, or whether he shot to save himself from being killed, the defendant could not claim self-defense in such state of case, but his crime would be in either event manslaughter, he having provoked the occasion which produced the necessity to take the life of deceased.

Did he seek deceased with the innocent intention of inducing or persuading him to retract his abusive language, and did he carry his double-barreled shot gun loaded with deadly buck shot as a means of persuasion or of protection? Deceased had sent him not only most abusive and insulting messages, but had also said that he intended to kill defendant, before night. Defendant knew his desperate character, and that he was-a man likely to execute his threats. He not only had received these messages, but it is further shown in the testimony that just after he was informed of them he was in such proximity to the deceased that he must, have heard in person the additional revilings and denunciations which the enraged man, doubly infuriated by his drunkenness, continued to-breathe forth unceasingly. He can stand it no longer He goes off some distance; gets his trusty shot gun, already loaded; comes back; sees his. deadly enemy across the street, and advances toxvards him with his gun ready to present. The party conversing with deceased sees him, and starts to intercept, and begs him not to shoot. Defendant waves him away and tells him to stand aside, and without one word to deceased fires upon him. If his intentions were peaceable and his mission an innocent one, why not apprise deceased of it? Especially so when, if it be true, he saw that deceased, mistaking his motives and purposes, was apparently preparing to draw a deadly "weapon upon him.

Under these circumstances can there be the slightest doubt that defendant intentionally provoked the occasion which produced the killing? If so, there can be no self-defense in his case. A person can not avail himself of a necessity which he has knowingly and wilfully brought upon himself. Willson’s Crim. Stats., sec. 981; Thumm v. The State, 24 Texas Ct. App., 667; Allen v. The State, Id., 216.

Our conclusion upon the whole case is that the law has been fairly and justly administered on the trial in the court below, and no reversible error having been made to appear on the record before us, the judgment, is affirmed.

Affirmed.

Judges all present and concurring.