Thompson v. State , 101 Tex. Crim. 587 ( 1925 )

Appellant insists that we misunderstood bill of exceptions No. 5. We think not. It appears in the bill that Austin Singleton testified as follows: "I heard the defendant, Ed. Thompson, in a conversation with Bill Polley, say: 'If you will get the gun, I will buy it,' and Ed said: 'Boy you are talking too loud". It is true that his statement was not in accord with the predicate laid for the impeachment of the appellant, but it seems to have been admissible as original testimony.

Arthur Garrett was called by the appellant as a witness and gave testimony favorable to the defense. In the course of the direct examination, Garrett testified than on the night of the homicide, he was present at church in company with the appellant and that he engaged in a conversation with the appellant, a part of which he detailed in his direct examination. He also detailed a conversation which he claimed to have overheard between the appellant and Lamar Blount, the deceased, in which the ownership of a pistol was discussed, Blount claiming to have bought the pistol and appellant claiming that it belonged to him. State's counsel asked the witness Garrett if during the conversation he had not said to Thompson with reference to Blount: "Are you going to let that negro get away?" Garrett denied making the statement. Later, the State called the witness, Singleton, who testified that Garrett did make the remark mentioned under the circumstances detailed. Objection was made upon various grounds, including the contention that it was an impeachment upon an immaterial matter, and further that it was permitting the State to impeach its own witness. This claim is based upon the fact that the cross-examination was not confined to the scope of the original examination. As we understand the record, appellant having introduced by Garrett a part of the conversation with the appellant, it was the State's right, on cross-examination, to develop other parts of the conversation relating to the same subject-matter. See Art. 811, C. C. P., where this right is conferred by statute. The testimony elicited by the State from Garrett was not foreign to his testimony upon the original examination, but on the contrary, related to the same matter, namely, the conversation in which he and the appellant engaged with reference to the deceased. Moreover, it was not, in our judgment, immaterial because the remark imputed to Garrett tended to show interest in the matter, that is, bias in favor of the accused and prejudice against the deceased. The remark: "Are you going to let that negro get away?" was certainly susceptible of the interpretation mentioned when considered in the light of the other circumstances to which the witness Garrett testified upon behalf of the appellant. The animus or motive of a witness giving adverse testimony may be inquired into by the State without making the witness its own. The motive of the witness is not regarded as collateral or irrelevant. See Watson v. State, 9 Tex.Crim. App. 237, and many other cases collated in Branch's Ann. Tex. P. C., p. 94, Sec. 163; Underhill's Crim. Ev., 3d Ed., p. 505, note 36. An inquiry of the character mentioned for the purpose of laying a predicate for impeachment is permissible. See Harvey v. State, 37 Tex. Rep. 265, and numerous other cases cited in Branch's Ann. Tex. P. C., p. 109, Sec. 179. In our judgment, the facts before us do not come within the purview of the rule which forbids a part from contradicting a witness as to collateral matter which are immaterial and which are called out by him on cross-examination.

According to the evidence, the deceased, Blount, and the appellant, Thompson, met at a gathering. Blount had a pistol which appellant claimed belonged to him, Blount declared that he had bought the pistol from another party. According to the State's testimony, appellant told Blount that the pistol was not paid for and that it would be taken away from him by the appellant. At this juncture, according to the State's evidence, appellant drew his pistol, but before he was able to cock it, Blount drew his pistol and fired twice. After firing, he ran away. Appellant pursued and overtook Blount, whose pistol was discharged twice. Appellant then fired and inflicted the fatal wound upon Blount. Appellant's testimony was to the effect that when he demanded his pistol, Blount drew his pistol and fired twice, one of the shots striking the appellant, and another striking his companion, and that it was not until after these shots were fired that the appellant drew his pistol. He then pursued Blount who fired two additional shots at the appellant, one striking him before his pistol was discharged.

Appellant excepted to the court's charge on self-defense because it failed to embrace the law applicable to the facts in that it ignored the issue as to the right of the appellant to pursue the deceased. Upon this issue, in addition to the exception, appellant presented a special charge to the effect that he had a right to follow the de-deceased and continue to shoot as long as it appeared that there was danger. The refusal of the special charge could not be regarded as error for the reason that it took no note of the issue of fact touching the beginning of the difficulty. If the State's testimony was true, the appellant, after demanding that the deceased deliver the pistol, threatened to take it from him, and at the same time drew his pistol. The deceased then drew his pistol, but owing to the fact that his was a self-acting pistol, he was able to fire first. If this was true, appellant was the aggressor, and it would be manifest that he had no right to pursue and shoot at the deceased if the facts were as contended by the State. If, however, they were as contended by the appellant, namely, that the deceased was the aggressor, and drew his pistol and fired twice at the appellant and then retreated, still having his pistol in his possession and in a threatening attitude, and later fired twice at the appellant, it is believed that the issue suggested by the charge was one upon which the court should have instructed the jury. If in the exercise of a right of self-defense, it becomes necessary that one assailed pursue his adversary, he may lawfully do so as long as, for the protection of his own life, the necessity continues. See West v. State, 2 Tex.Crim. App. 476; Walton v. State, 34 Tex.Crim. Rep.; Stanley v. State, 44 S.W., Rep. 519; Johnson v. State, 50 S.W., Rep. 343; Wilson v. State, 46 Tex.Crim. Rep.; Flewellen v. State, 83 Tex. Crim. 568; Morgan v. State, 43 Tex.Crim. Rep.. See also Branch's Ann. Tex. P. C., Secs. 1967 and 1968.

Upon the record before us, it is believed that the appellant was entitled to have embraced in the charge on self-defense, the law applicable to his right to pursue, provided he was not the agressor, and so long as the necessity, viewed from his standpoint, continued.

The motion for rehearing is granted, the affirmance is set aside, the judgment is reversed and the cause is remanded.

Reversed and remanded.