Morales v. State , 36 Tex. Crim. 234 ( 1896 )

Appellant was convicted of murder in the first degree, and his punishment assessed at death, and he prosecutes this appeal. In this case the court gave a very lengthy charge. After defining murder in the first and second degrees, and malice, both express and implied, he then proceeded to charge on murder in the first and second degrees, manslaughter, and self-defense. No exception was taken to this charge, but, inasmuch as it is the duty of the court to correctly charge the law applicable to the case, it becomes our duty to review said charge. In order to present the matter properly, we will quote in extenso from the charge itself:

"(9) If, about the time and place charged in the indictment, the defendant went to the house of the deceased, and there stabbed and killed the deceased, and that such killing was in the perpetration of robbery, or in the attempt at the perpetration of robbery, then the defendant would be guilty of murder in the first degree; or if, about the time and place charged in the indictment, the defendant stabbed and thereby killed the deceased, and at the time he thus stabbed him the deceased had done nothing to or towards the defendant which, of itself, or by words accompanying it, made it reasonably appear to the defendant, viewing it from his standpoint, that he, the deceased, then intended to kill the defendant, or to inflict on him some serious bodily injury, and thereupon the defendant stabbed the deceased, and inflicted on him a wound or wounds from which he died, and the defendant thus inflicted said wound on the deceased in the execution or in pursuance of a formed design to kill the deceased, and that such design was formed in the mind of the defendant when his mind was sedate and deliberate, and therefore with express malice, such killing thus done would also be murder in the first degree.

"(10) If, about the time and place charged in the indictment, the defendant intentionally and unlawfully stabbed and killed the deceased, and at the time he thus stabbed him the deceased had done nothing to or towards the defendant which, of itself, or by words accompanying it, made it reasonably appear to the defendant, viewing it from his standpoint, that the defendant then intended to kill the deceased, or to inflict on him some serious bodily injury, then such killing under such circumstances would be murder in the second degree, and if you so believe beyond a reasonable doubt, you will convict the defendant of murder in the second degree, and assess his punishment at confinement in the penitentiary for any period of time you see fit, being not less than five years.

"(11) If, about the time and place charged in the indictment, the defendant went home with the deceased, and, after they had arrived at the deceased's house, the deceased cursed and abused the defendant, and in the dark made an assault upon the defendant, and the defendant stabbed and killed the deceased, and at the time he thus stabbed the deceased he was moved by anger, fear, or sudden resentment arising out of the provocation then offered to him by the deceased, then he would be guilty of manslaughter.

"(12) In connection with and bearing upon the law of self-defense, you are instructed if, about the time and place charged in the indictment, the defendant and the deceased went to the house of the deceased, and, after arriving there, the deceased made a violent attack upon the defendant, and cursed and abused the defendant, and from the acts and declarations of the deceased it reasonably appeared to the defendant that his life was in danger, or that serious bodily injury was then about to be inflicted upon him by the deceased, and, acting under such belief and apprehension, the defendant stabbed and killed the deceased, then the defendant would not be guilty of any offense, and, if you so believe, you will acquit the defendant on the ground of self-defense. And, in passing upon the question as to whether the defendant acted in self-defense, the facts and circumstances transpiring at the time of the killing must be viewed from the standpoint of the defendant, and from none other; and in connection with this portion of the charge, if you have a reasonable doubt as to what the real facts are, you will give the defendant the benefit of the doubt, and acquit him.

"(13) Keeping in view the foregoing rules of law, if you find, from the evidence, beyond a reasonable doubt, that the defendant, Patronia Morales, in the County of Angelina, and State of Texas, at any time before the 15th of October, 1895, did stab and thereby kill Juarez Hernandez, and that such killing was with malice aforethought, either express or implied, then you will convict the defendant of murder, and you will then inquire as to whether he is guilty of murder in the first degree or murder in the second degree; and in this connection you are instructed, if you believe, beyond a reasonable doubt, that defendant stabbed and killed the deceased, and that such killing was done in the perpetration of robbery, or in the attempt at the perpetration of robbery, or that he stabbed and killed the deceased in pursuance of a formed design to kill him, which design was formed when his mind was cool, calm and sedate, and deliberate, and thereby upon express malice, in either case you will convict the defendant of murder in the first degree, and assess his punishment at death or by confinement in the penitentiary for life.

"(14) If you have a reasonable doubt as to whether the defendant is guilty of murder in the first degree, you will acquit him of that offense, and inquire whether he is guilty of murder in the second degree. And in this connection, if you believe that the defendant unlawfully and voluntarily stabbed and killed the deceased with malice aforethought, as that term has heretofore been explained, but that such killing was not done in the perpetration or in the attempt at perpetration of robbery, or with express malice, as that term has heretofore been explained to you, then you will find the defendant guilty of murder in the second degree, and assess his punishment at confinement in the penitentiary for any term you see fit, not less than five years.

"(15) If you have a reasonable doubt of the guilt of the defendant of murder, you will acquit him of that offense, and inquire whether he is guilty of manslaughter; and in reference to manslaughter you are instructed that if you find, from the evidence, beyond a reasonable doubt, that the defendant, in the County of Angelina, and State of Texas, at any time within three years before the 15th day of October, 1895, did stab and kill Juarez Hernandez, and that such killing was done under the immediate influence of sudden passion, arising from an adequate cause, as these terms have heretofore been explained to you, then you will convict the defendant of manslaughter, unless you acquit the defendant on the ground of self-defense, as the term 'self-defense' has heretofore been explained in this charge. If you should convict the defendant of manslaughter, you will assess his punishment at confinement in the penitentiary for any term of years you see fit, not less than two years, nor more than five years."

We will point out such defects in the charge as occur to us. Appellant was convicted of murder in the first degree, and, if the charge on first degree, and the charges on less degrees of culpable homicide, and the charge on self-defense, were of such a character as not to present the issue clearly and fairly to the jury, they were calculated to impair the rights of the defendant. It would appear that, in the first portions of said charges above copied, the court intended merely to state the legal principles governing the case, and then to apply the principles so laid down to the facts of the case. For instance, after the court states what he has to say on the law of self-defense, he then says, "Keeping in view the foregoing rules of law," and then proceeds to charge the jury, applying the law to the facts of the case. If this be true, then as to self-defense, the court merely laid down the principles governing the law of self-defense, and has not applied the law to the facts on this subject. But it rather appears to us that the first portion of said charge was an attempt to charge the law as applicable to the facts of the case, and the last portion was but a reiteration in different form of the preceding charges on the same subject. If this be true, then the jury were charged on the law of self-defense. In the charge of the court on murder in the first degree (see paragraphs 9 and 13) the charge as to murder in the first degree in the perpetration of robbery or attempted perpetration of robbery appears to be in accordance with the approved forms. See, Sharpe v. State, 17 Tex.Crim. App., 486. In said last mentioned paragraphs, the court then proceeds further to charge on murder in the first degree committed upon express malice. The court combines with this charge something in the nature of a charge on self-defense, and, when analyzed, both of these charges in a roundabout way instruct the jury, in effect, that if they believe that the killing was not done in self-defense, but was done in pursuance of a previously formed design to kill, in a mind calm, sedate, and cool, that such killing was upon express malice. As stated, this is the effect of these charges, but it takes some analysis even of a legal mind to run out this result, and no doubt it presented to the jury a serious question for proper consideration. Paragraphs 10 and 14 contain the court's charge on murder in the second degree. In paragraph 10 no illusion is made to the state of mind in which the intent to kill may have been formed, unless we recur back to former portions of the charge. The court here merely tells the jury that if the defendant intentionally and unlawfully stabbed and killed the deceased, and that he did so not in his self-defense, and that he intended when he so stabbed deceased to kill him, then such killing under such circumstances would be murder in the second degree. No reference whatever is made to the state of mind in which the intent was formed. We would further observe, in connection with this portion of the charge, in that part referring to self-defense, that the words "defendant," and "deceased" appear to be transposed, if the record is a correct copy of the original charge, and makes it appear, "if deceased was not doing some act which caused the defendant to believe that the defendant intended to kill deceased, or inflict on him some serious bodily injury," etc. This, of course, is not what the judge means; but if this expression was contained in the original charge it was liable to confuse the jury. However, in the fourteenth paragraph of the charge, the last error alluded to does not occur, and the jury are distinctly told that, "if they believe the defendant unlawfully and voluntarily killed the deceased with malice aforethought, as that term has heretofore been defined, and that such killing was not upon express malice, or done in the perpetration or attempted perpetration of robbery, to find the defendant guilty of murder in the second degree." In paragraph 11 of the charge the court instructs the jury: "If the defendant went home with the deceased, and after they arrived there the deceased cursed and abused the defendant, and in the dark made an assault upon the defendant, and defendant stabbed and killed deceased, and at that time he was moved by anger and sudden resentment arising out of the provocation thus offered to him, the defendant would be guilty of manslaughter." And this same charge is in effect repeated in paragraph 15. This assault alluded to is not further described. In the charge on self-defense it is true that, if the jury would look back and investigate, they would see that the court had charged that if the assault endangered the life of the defendant, or threatened his person with serious bodily injury, he would be justifiable; but in our opinion the charge on manslaughter should have itself contained the character of assault which would merely serve to reduce the homicide to manslaughter, and the charge should also have shown, in order to reduce to manslaughter, that the passion engendered must render the mind of the defendant incapable of cool reflection. But this, perhaps, was to the defendant's benefit. As stated before, this charge was not excepted to; but we think this charge, viewed singly or as a whole, did not clearly present the issues in the case, and was calculated to confuse the jury, and in a case where the death penalty has been inflicted it becomes our duty to closely scan the provisions of the charge, and see that all of the salient features of the case were fairly, lucidly, and clearly presented to the jury. The learned judge who tried this case appears to have been selected as a special judge, and doubtless this was the first occasion of his presiding in this character of cases. While the charge itself manifests a comprehensive knowledge of the questions involved in the case, we do not think the various features of the case were as clearly presented as they should have been; and on a new trial of this case we apprehend, as the learned judge who tried this case now adorns that bench, that there will be no difficulty about a proper charge in this case.

When the appellant was on the stand in his own behalf, the State asked him if he had not told Spradley and Manchaca, the sheriff and deputy sheriff of Nacogdoches County, while he was in the jail of said county, as follows: "Didn't you tell Manchaca that you killed deceased for his money, and that the negro, Dick Sherman, got a part of the money, and you threw the other money away at the time you was arrested?" and "if he didn't tell Spradley he killed deceased for his money, but that he did not get any money." Counsel for the defendant objected to this testimony, because the defendant at the time was in jail, and had not been cautioned by the sheriff as the law requires. Counsel for the State insisted on this testimony for the purpose of having a predicate to impeach said witness. The defendant answered that he had not made any such statements. The State was then permitted to prove by said Spradley that said defendant did tell him, while in the jail of Nacogdoches County, that he killed deceased for his money, and that he did not get any money; and by Manchaca that he killed deceased for his money, and that the negro, Dick Sherman, got a part of the money, and that he threw the money away at the time he was arrested. This testimony was also objected to our the ground that the statements were made in jail, and the defendant had not been duly warned before he made said statements. The objection was overruled, and the defendant reserved his bill of exceptions. Art. 790, Code Crim. Proc., 1895, which brings forward the Act of the Twenty-first Legislature, passed in 1889, provides as follows: "Any defendant in a criminal action will be permitted to testify in his own behalf therein, but the failure of any defendant to so testify shall not be taken as a circumstance against him; nor shall the same be alluded to or commented on by counsel in the case; provided that wherever there are two or more persons jointly charged or indicted and a severance had, the privilege of testifying shall be extended only to the person on trial." Art. 789 of said Code Crim. Proc., 1895, provides as follows: "The confession of a defendant may be used in evidence against him, if it appear that the same was freely made, without compulsion or persuasion under the rules hereafter prescribed." Article 790 provides: "A confession shall not be used, if at the time it was made the defendant was in jail, or other place of confinement, nor while he is in the custody of an officer, unless such confession be made in a voluntary statement of the accused taken before an examining court in accordance with law, or be made voluntarily, after having been first cautioned that it may be used against him, or unless in connection with such confession he make statement of facts, or of circumstances that are found to be true, which conduces to establish his guilt — such as the finding of secreted or stolen property, or the instrument with which he states the offense was committed." In Quintana v. State, 29 Tex.Crim. App., 401, a construction of these statutes came before the court. In that case, however, it was said that the testimony upon which the predicate was laid while the defendant was in jail, and upon which he was impeached, was not a confession. In that case the charge was one of theft of a horse. "The defendant took the stand as a witness in the case, and testified that he had never had possession of the horse alleged in the indictment to have been stolen. The District Attorney, on cross-examination of the defendant, asked him if he had not stated to the witness, Bailey, that he (defendant) had had possession of said horse, and that he had gotten the same from another Mexican in El Paso County, near Mundy's Springs. Defendant replied that he had not so stated; whereupon Bailey was brought on the stand, and testified that defendant had so stated to him in the presence of the defendant's counsel; and it further appeared that this statement was made while the defendant was in jail and when he had not been warned." In the opinion of a majority of the court as to this testimony they say: "Instead of being an admission or confession of guilt, the statement of the defendant was a denial of that fact. If he received the horse from another Mexican in El Paso County, he could not have been guilty of the theft of the horse in New Mexico, even if he knew that the horse was stolen when he received it." And said case was followed in the case of Ferguson v. State, 31 Tex. Crim. 93, which was similar as to the impeaching testimony, and the court also treated that as not a confession. The court, however, in the discussion of the question, appears to incline to the view that, regardless of whether or not the impeaching testimony was a confession, the same rule would apply, and that it would be permitted for the State to go into the jail, and lay the predicate for the contradiction of the defendant, when he is a witness on his own behalf, as to a confession made in the jail by him without having been warned, and then to contradict him as to such confession. It has also been followed in Phillips v. State, 35 Tex.Crim. App., 480. As far as examined, none of the authorities cited in said case of Quintana are exactly in point, and, with the exception of the Phillips case, which follows the Quintana case, it is not believed that any authority can be found which lays down the proposition that a defendant, when he becomes a witness in his own behalf, can be impeached as to confessions made by him while in jail, not having been warned. The decisions cited, however, do go to the extent of holding that, when a defendant becomes a witness on his own behalf, he is to be treated as any other witness, and his cross-examination is circumscribed only by the rules applicable to any other witness. He may be impeached by showing that he is unworthy of belief, and he may be impeached by showing that he has made contradictory statements to those testified by him on the trial; and he may be contradicted by showing that he has been arrested for or convicted of crimes showing moral turpitude, which go to his credit like any other witness.

The exact question here presented, however, is whether or not the defendant can be examined as to a confession made by him while in jail, not having been warned, and a predicate thus laid for his impeachment, and the State then be permitted to show by witnesses that he made a confession of the crime alleged against him while in jail; for, as to the fact that the matter inquired about in this case was a confession, there can be no question, and it is not necessary here to discuss the question involved in the cases above referred to, as to whether the statements there made by the defendants were in the nature of a confession or not. The statute says that a confession made by a defendant while in jail cannot be used against him unless he was duly warned. This statute is without limitation, and apprehends that the confession cannot be used against him for any purpose; and to use it for the purpose of impeaching him would certainly he using it against him. It is believed that Article 770 was passed to enlarge the defendant's rights, and not in any sense to curtail them, and, if said article is to have the effect to authorize the State to lay a predicate for the impeachment of a defendant as to his confession made in jail without due warning, then its effect would be to repeal by implication so much of Article 790 as guards a confession made by a defendant when in jail. A repeal by implication is not favored as a rule of construction, but the rule is that both statutes shall be permitted to stand if this can be done. And especially is this so where a construction would repeal by implication a statute intended for the benefit of a defendant. These two statutes, in our opinion, are susceptible of that construction which will permit both to stand. A defendant in a criminal case can become a witness for himself, and can be treated as any other witness, except as inhibited by some other statute. As we have seen, Article 790 prohibits the use of a confession by a defendant while in jail, unless under certain circumstances stated in said article; and the fact that he may become a witness does not, in our opinion, repeal by implication or render nugatory the safeguard guarantied him against the use of any confession made by him while in jail, unless such confession is made in accordance with the forms prescribed in said article. It is true, in this case, the court limited the purpose of this testimony to the impeachment of the defendant as a witness. While, as stated, this was a limitation, yet it was an authority to the jury to use the confession for a purpose against the defendant. The confession itself was a direct confession of guilt made by the defendant while in jail and without proper caution. If it had been made out of jail, or under proper warning given, it could have been used as original evidence against the defendant of the most damaging character; and, however much the jury may have felt constrained to regard the testimony only as directed by the court, it would present to them an exceedingly difficult problem to do so. However that may be, in our opinion, the testimony could not be used against defendant for any purpose; and whatever is said in the cases above cited that indicates a contrary view is hereby overruled. It is not necessary to discuss the other assignments of error, but, for the errors discussed, the judgment is reversed, and the cause remanded.

Reversed and Remanded.

HURT, Presiding Judge, concurs.