Hargrove v. State , 33 Tex. Crim. 431 ( 1894 )

Conviction for murder in the second degree; punishment for twenty-five years. It is only necessary to notice some of the errors raised in this record.

Appellant, having taken the stand in his own behalf as a witness, was asked by the State whether he had not been tried and convicted in that court for the murder of one Tackett, and over his objections was compelled to answer, that he had been convicted, but on a new trial had been acquitted. In his explanation, the court said the evidence was admitted only for the purpose of affecting, if it did affect, the credibility of defendant as a witness, and he so informed the jury as soon as the evidence was admitted. In his charge, however, the court failed to limit the effect of said testimony, which, without due caution in the charge of the court, was well calculated to prejudice the defendant by presenting him before the jury as a man whose hands were stained with another crime of the same character. A verbal statement by the court as to the object of admitting the testimony was not sufficient. While it is true an exception was not taken to the charge until after the jury had retired, and no special instructions were asked, yet it was the duty of the court to have given the instructions in writing, whether requested or not.

In the motion for a new trial, based on the misconduct of the jury, appellant files the affidavit of three jurors who tried the case, stating that while the jury were considering the case remarks were made by jurors to the effect that the reputation of the defendant and his father and brother as peaceable citizens was bad; that defendant's reputation for truth and veracity was bad; that defendant had murdered several men, and was a hardened criminal, and, if turned loose, would kill somebody else. In the controverting affidavit filed by the State it is admitted, by the two jurors making it, that while considering the case some one said, "The father of defendant was a bad man," and another one answered, "Yes, and the boys, Walker and George, are bad boys; they are always getting in trouble." It is asserted that when these remarks were made some one rebuked those making the remarks, and no other remarks, so far as these jurors know, were made with reference to the character of defendant or his father and brother. The controverting affidavit said, that before the remarks were made every member had voted that defendant was guilty of murder, but the punishment ranged among the jurors from five years to life imprisonment, six being above and six below twenty-five years. The three jurors in behalf of appellant say, that after said remarks were made some of the jurors who up to that time had been in favor of acquittal, or a low term of years, agreed to a verdict of twenty-five years. Subdivision 7 of article 777, Code of Criminal Procedure, declares, that a new trial shall be granted when the jury, after having retired to deliberate upon a case, have received other testimony. The controverting affidavit not only shows that prejudicial evidence was received, but does not deny the remarks charged by the other jurors to have been made. There is the singular absence of affidavits on the part of the jurors Strawn and others, charged in said motion to have been affected by the remarks; and that the controverting jurors did not know of the other remarks does not disprove the fact that they were made. There was no testimony before the jury to the effect that appellant's father and brother and himself were a hard set, and always getting into trouble; nor that appellant's reputation was bad for truth and veracity. The jury may have well been led by such remarks to agree upon a higher term of years than they otherwise would. The fact, too, that it was stated to the jury, or some of them, that appellant had killed several men, and was already a hardened criminal, would seem to emphasize the necessity of a charge by the court limiting the proof of other offenses to the question of impeachment.

Appellant further complains that the court erred in compelling him, while on the witness stand, to answer that he had killed Bill Smith. The objection is, that by admitting that he had killed Bill Smith he subjected himself to another prosecution for murder. Bill Smith was shot in the same conflict in which Spear was killed, and both were killed in a few moments of each other. The killing of Smith was part of the res gestæ. Could appellant refuse to answer who killed Smith, if he knew? Mr. Wharton says a defendant may be asked whether he has suborned testimony in the particular case, and whether he has been concerned in other crimes, part of the same system. Whart. Crim. Ev., 432. When a defendant takes the stand he waives his constitutional protection, and subjects himself to the peril of being examined as to any and every matter pertinent to the issue, and as to all matters connected with the offense. Id.; McGarry v. The People, 2 Lans., 227; Whart. Crim. Ev., 444, 470 The court did not err.

Appellant further complains that the court erred in permitting the State to ask him whether he had not been tried and convicted for the murder of Henry Tackett, and witness, being compelled to answer, stated he had been convicted, but the conviction had been set aside and he had been acquitted. It is objected that the evidence was immaterial and prejudicial; that the subsequent acquittal shows the conviction to have been wrongful; and the statute declares, that a former conviction shall not be regarded as a presumption of guilt, nor be alluded to in argument (Code Criminal Procedure, article 783); and because homicide, unlike theft and crimes of a depraved nature, does not necessarily reflect on character, for a man may kill and still be worthy of credit. The question asked witness was admissible, for it is now settled that a witness, for purposes of impeachment, may be asked if he has not been convicted of a felony (Carroll's case, 32 Texas Criminal Reports, 431; White's case, ante, p. 177), and a defendant can be impeached in the same manner and to the same extent. Jackson's case, ante, p. 281. The statute invoked by counsel applies only to cases where the defendant is on trial a second time for the same offense for which he was convicted and granted a new trial, and has no application to the question at issue. There is a great difference, as contended by counsel, in the character of felonies; but the nature of the punishment is generally the same, and attended with the same disqualifications; and a charge of any crime, especially a felony, is justly regarded as a serious reflection upon any one, and it may, and naturally does, affect character. Mr. Wharton says it has been ruled that, to affect his credit, a defendant may be asked whether he has been in prison on other charges. Such is the law in Texas. Quintana's case, 29 Texas Crim. App., 401, and authorities; Carroll's case, 32 Tex.Crim. Rep.. In Jackson's case, ante, p. 281, it was held that a witness (defendant) may be asked any question that can be propounded to any other witness, and he may be asked whether he has been arrested for burglary, robbery, or theft. Thus it will be seen that the fact of being charged with an offense is regarded as competent evidence to go to the jury as reflecting upon character. While it is true that the party charged may have been acquitted, still the fact that he was charged is a circumstance to go to the jury. An acquittal does not conclusively show innocence. It shows that guilt could not be proven beyond a reasonable doubt.

It is, however, insisted that to permit a charge of crime to be introduced to affect character presumes guilt from accusation, in violation of the law which declares a man shall be presumed innocent until proven guilty. When a man is accused of crime, the presumption of innocence applies only in the prosecution and trial for the offense itself. Until then, the State, in requiring sureties for his appearance, or in default thereof putting him in prison, does not proceed on the presumption of innocence. Neither should such a presumption attach or be invoked when he takes the witness stand to testify for or against the life or liberty of another man. The tribunal which is to pass upon that life or liberty should know something of the character of those whose testimony the law requires them to weigh (Carroll's case, 32 Texas Criminal Reports, 431), and the same rule applies to defendant when he becomes a witness (Jackson's case, supra). We think, however, there is much force in the criticism of the court's charge made by the able counsel for appellant. In presenting the theory for the State, the court several times suggests the fact that the elder Hargrove fired the first shot at Spear, and began the difficulty. There is no evidence that appellant's father fired the first shot. The evidence leaves it in much doubt whether Spear or the elder Hargrove made the first movement to draw weapons, but the uncontradicted testimony shows that deceased began firing upon the elder Hargrove before e drew his pistol. Indeed, it seems the old man, who was walking off from Spear, looking backward, was shot in the back, and ran under the train and fell before he drew his pistol. Again, the theory of the defense, as presented by the testimony, was that, if an agreement existed between the father and brother to kill Spear, he was not a party to it; that on the contrary he endeavored to dissuade his father from going to Arlington, but finding he was compelled to go upon a matter of business, he agreed to go with him on condition that he would not drink, and would return home on the next train; that, knowing of the threats against his father's life by Spear, and of the actual attempt to assassinate him, he went to prevent a difficulty, and, if necessary, to protect his life. Now, it is true that if appellant had previously agreed with his father and brother to kill deceased, and went with them for that purpose, and in pursuance thereof killed deceased at a meeting intended or accidental, or if both Spear and all the Hargroves voluntarily entered into a mutual predetermined combat in which Spear was killed, in either event appellant would be guilty of murder upon express malice, and the question of who began the conflict might be immaterial. But if the theory of the defense is true, and appellant was no party to the agreement, but entered into the conflict to protect his father's or brother's life, he would not be guilty, unless he knew they had begun the difficulty. Now, the court presented clearly and strongly the theory of the State, but in stating the converse of the propositions does so in a very negative form. We think justice to appellant's rights required that the court should have instructed the jury, that unless the evidence satisfied them beyond a reasonable doubt that there was an agreement between the Hargroves (including appellant) to kill deceased, and he was killed in pursuance thereof, or that he was killed in a mutual combat, voluntarily entered into by all the parties, they must acquit appellant, unless they were further satisfied that appellant's father and brother began the difficulty, and appellant knew it when he entered into the conflict.

The judgment is reversed and the cause remanded.

Reversed and remanded.

Judges all present and concurring.