Burnaman v. State , 70 Tex. Crim. 361 ( 1913 )

I can not agree with the opinion of the majority affirming this judgment. The propositions announced and rules laid down in the prevailing opinion are so directly contrary and opposed to what has been the settled law in Texas so long that I feel impelled to enter this dissent. I deem it unnecessary to enter into a discussion at length of these matters inasmuch as Messrs. King King have filed such an able, elaborate and unanswerable brief I shall content myself with adopting that brief and argument as my dissenting opinion. In their argument every proposition presented, and affirmed by my brethren, has been so successfully met from a legal standpoint I could not improve upon it, therefore I adopt it as my dissenting opinion. It is as follows:

"In the preparation of his opinion the writer draws certain inferences from the evidence which we do not believe the record justifies. He adopts that portion of the defendant's evidence suitable for the holding, but ignores the remaining part of his testimony. The questions are not at all new to the criminal jurisprudence in this State, and while we would not invoke the rule of ``stare decisis,' yet this court has so uniformly held with the contentions here made, therefore we can not but insist that the opinion of affirmance is not the law in this State and a rehearing should be granted.

"The court erred in its opinion of affirmance in holding that the testimony of Lee, recited in bill of exception No. 1, that appellant's brother approached him and undertook to have him change or compromise his testimony was not collateral to the main issue and that same was admissible as original testimony, though it does not appear from the record, or the bill, that appellant was responsible therefor.

"The following authorities amply sustain this proposition: Hoy v. State, 39 Tex.Crim. Rep.; Rice v. State, 51 Tex. Crim. 255; Garcia v. State, 74 S.W. Rep., 916; Clark v. State, 43 S.W. Rep., 522; Pace v. State, 79 S.W. Rep., 531; Sims v. State, 38 Tex.Crim. Rep..

"The fact that appellant's brother, who had testified in support of his defense, had been excused by the court, and was at the time absent, does not serve to change the rule announced by the above authorities. It is shown in the statement of facts that appellant's brother was excused by the court in the presence of the prosecuting officers and that they knew he was then leaving town, and when the State proposed to introduce the witness Lee to give the testimony complained of in the bill that they did not believe the testimony was admissible without a predicate made while appellant's brother was upon the stand. On page 67 of the statement of facts, and at the bottom of the page, as the State began to introduce such testimony, we find that the defendant objected, first, because no predicate had been laid and that the State replied: ``It is a question I don't think a predicate has been laid for, the court can pass on that question,' and again on page 68 of the statement of facts, when the defendant earnestly insisted upon his objection for the reason that the occurrence happened in the absence of the defendant, the court said: ``It only goes to the credibility of the witness.' Defendant: ``There is no predicate laid for it.' Court: ``I don't think it is a character of matter that requires a predicate.' The State not only knew that no predicate had been laid when appellant's brother was testifying, but knew that the witness had been excused and would not longer be in attendance upon the court, and stated in effect at the time the testimony was offered, that it was necessary to lay a predicate. The court took a different view from that entertained both by counsel for appellant or counsel for State, and admitted the testimony as original evidence, the theory upon which the opinion of affirmance holds that it was admissible.

"The opinion holds that it was admissible as original evidence, but then proceeds to assert that it was for the purpose ofimpeaching appellant's brother as a witness and that it couldhave been considered for no other purpose by the jury.

"Mr. Wharton in his Criminal Evidence, 9th edition, section 484, explaining what a collateral issue is, quotes from a Pennsylvania case, as follows:

"``The test of whether a fact inquired of on cross-examination is collateral is this: would the cross-examining party be entitled to prove it as part of his case tending to establish his plea?'

"See also Hart v. State, 15 Texas Crim. App., 202; Johnson v. State, 22 Texas Crim. App., 206.

"Impeaching testimony whether of the general reputation of a witness, or proof of contradictory statements, or proof of his interest or bias, is always a collateral inquiry. It could not be used by the State for the purpose of supporting its contention. Whether a witness is, or not, thus impeached, does not in the least affect the true facts. It is receivable only in support of the contention that the witness is, or is not, telling the facts as they existed and therefore necessarily collateral to the main inquiry.

"It is conceded in the opinion of affirmance that it is never admissible to allow the State to prove over objection, that friends, relatives or attorneys of the party upon trial had undertaken to persuade a witness to give changed or manufactured testimony in his favor unless it be shown that the appellant was connected therewith, or authorized the same, but the writer of the opinion holds the testimony was not offered for such purpose, but for the purpose of impeaching appellant's brother as a witness. We submit that it is not a question as to the purpose of the State in offering the testimony, but is a question as to the effect the testimony offered would have. It being shown that the witness who approached Lee was appellant's brother, the jury could not but conclude that appellant was responsible therefor.

"The following cases are ample authority in support of the proposition that such testimony was not admissible: Estep, v. State, 9 Texas Crim. App., 366; Barbee v. State, 23 Texas Crim. App., 199; Rushing v. State, 25 Texas Crim. App., 607; Luttrell v. State, 51 S.W. Rep., 930; Garcia v. State, 74 S.W. Rep., 916; Rice v. State, 51 Tex.Crim. Rep., 103 S.W. Rep., 1156; Lounder v. State, 46 Tex.Crim. Rep.; Day v. State,62 Tex. Crim. 413; Day v. State, 62 Tex.Crim. Rep.; Grimes v. State, 14 S.W. Rep., 263; Brown v. State,67 Tex. Crim. 543, 150 S.W. Rep., 436; Branch's Crim. Law, sec. 862.

"While the proposition here announced and supported by the authorities cited is stated in the opinion of affirmance to be sound, yet the court holds that it was admissible to show the bias of appellant's brother, and to, in this way, impeach him as a witness, even in the absence of predicate laid.

"In reply to this holding, we assert that it has ever been the law that where proof of tampering with the witness would not be admissible as original evidence, that it is inadmissible for impeachment, and that error in admitting it is not cured by limiting the same in the charge to impeachment. Rice v. State,51 Tex. Crim. 255; Garcia v. State, 74 S.W. Rep., 916; Swayne v. State, 48 Tex.Crim. Rep.; Hoy v. State, 39 Tex. Crim. 340.

"In the case of Garcia v. State, supra, Judge Henderson, speaking for the court, uses this, language: ``True, the witness had been introduced by appellant, and had testified to an alibi in his favor, but this did not authorize the introduction of illegitimate testimony against appellant on the pretext of impeaching the witness. Unless appellant sent his father to see prosecutrix, in order to compromise the case, he would not be bound by anything that his father did in that connection.'

"In Hoy v. State, supra, Judge Davidson, speaking for the court, says: ``The very reason given by the court for the admission of the testimony should have excluded it. If it was not legitimate as original evidence, certainly it could not be used for the purpose of impeaching a witness. Irrelevant or inadmissible evidence does not become admissible or proper because sought to be used for the purpose of impeachment.'

"In the case of Rice v. State, supra, Judge Henderson, upon a motion for rehearing, discussing a similar question, says: ``Of course it will not he contended that this testimony is original testimony inhering in or appertaining to the case; it transpired long after the case. If appellant was shown to be connected therewith, it would constitute original testimony against him as a circumstance suggesting consciousness of guilt in fabricating testimony — and tampering with witnesses comes under thatcategory — but, as stated, the evidence was not offered as original testimony, but as impeaching evidence. Clearly, it was introduced upon a collateral issue, and was confessedly offered to affect the credibility of the witness, Ed Prather.'

"Further discussing the question, the court approvingly quotes from Wharton's Criminal Evidence, as follows: ``Applying this test, was the evidence here offered pertinent to the case, or was it a contradiction upon a collateral issue and not upon any issue involving defendant's guilt or innocence? Evidently it was upon a collateral issue, and both court and counsel so regarded if. The court attempted in its charge to limit this testimony to the impeachment of Ed Prather, but, as has heretofore been held by this court, when illegal testimony for impeachment purposes has been admitted, and this of itself is of a hurtful character, it is impossible for the court to so limit it so as not to prove injurious to appellant.'

"He cited as supporting the proposition so announced Cogdell v. State, 3 Texas Crim. App., 178; Morton v. State, 43 Tex. Crim. 533; Casey v. State, 49 Tex.Crim. Rep., 90 S.W. Rep., 1018.

"This confronts us with this situation: the opinion of affirmance is committed to the proposition that the testimony showing that appellant's brother attempted to have a witness compromise or change his testimony, in the absence of appellant and without his knowledge, is clearly not admissible, and the court, from all the authorities above cited, has uniformly held that illegal testimony is never admissible under the guise of impeaching a witness in the case, and further under authorities cited going so far as to hold the error thus committed can not be cured by a charge of the court limiting the illegal testimony to purposes of impeachment.

"Again, the testimony, if otherwise admissible, being collateral, was not admissible in the absence of a predicate laid while appellant's brother was upon the stand and this court erred in its opinion of affirmance in holding the same admissible in the absence of such predicate.

"The writer of the opinion of affirmance holds that the testimony was admissible to show the interest and bias of appellant's brother as a witness. If admissible at all, it was for the purpose of affecting his standing as a witness. He loses sight, however, of the fact that this is but one way of attacking the credibility of a witness. As stated above, the credibility of a witness is always a collateral inquiry. Whether or not a witness is credible has nothing to do with the guilt or innocence of the party upon trial, and all evidence except that tending to establish guilt or innocence is, according to the rule announced herein above, as quoted by Mr. Wharton's Criminal Law, collateral evidence.

"In the language of the writer of the opinion, ``it is elementary' that all impeaching evidence must be supported by a predicate. The common law rule upon the subject announced as far back as the Queen's case, 2 Bros. Bing., 312, is to the effect that when a witness has been examined on one side, it is not competent for the opposite party to introduce evidence to show his bias, feeling or partiality towards the parties, unless the witness has been previously questioned himself as to that point. Even in the discussion of this principle in 40 Cyc., page 2616, and in 30 Ency. of Law, 1127, cited in the opinion, it is there stated that the great weight of authority is in support of the position here taken and against the holding of the opinion.

"We now pass to the rule as it has been uniformly announced by the courts of this State, both in criminal and civil cases, and we here assert, that in so far as we have been able to find, there can be no authorities of the Texas courts found in support of the holding made by the honorable judge in the opinion in this case. All of the authorities hold just to the contrary of the rule as announced in the opinion. Barry v. State, 37 Tex. Crim. 302; Mitchell v. State, 38 Tex.Crim. Rep.; Nite v. State, 41 Tex.Crim. Rep.; Martinez v. State, 53 S.W. Rep., 634; G.H. S.A. Ry. Co. v. LaPrelle, 22 Texas Civ. App. 594[22 Tex. Civ. App. 594]. For a full and complete discussion of all the authorities see note, 82 American State Reports, page 54.

"Discussing this question in the case of Barry v. State, supra, Judge Henderson, for the court, says: ``Nor do we believe it was proper for the State to elicit from Mrs. Jackson testimony to the effect that, on the morning after the homicide she was at Mrs. Ford's and that Mrs. Ford endeavored to make her remember that on a certain occasion the deceased, Healy, rubbed his hand on the stomach of Mrs. Barry, the wife of the defendant, and asked her (Mrs. Barry) "when the damn little bastard was going to be born," and on the witness replying that she did not hear deceased use that language, that then Mrs. Barry said to her: "You will have to remember it," or "you must remember it." Now, if Mrs. Ford had been placed on the stand and she had been examined as to this matter for the purpose of showing that she was interested in procuring testimony for defendant or fabricating the same, and she had denied this suggestion to Mrs. Jackson, then Mrs. Jackson might have been examined on this point solely for the purpose of impeachment.'

"It was exactly an effort of this kind to have the witness Lee change his testimony or remember things to which he had not testified, that he says appellant's brother undertook to have him do; that is, appellant's brother tried to make the witness remember having heard appellant make the statements when he approached the two immediately after the killing. We therefore take it that this case is as near in point with the facts in the case under discussion as could be found.

"Again, the same judge in the case of Mitchell v. State, supra, used the following language: ``Now it would have been perfectly competent in order to show that the witness, John Pierce, was prejudiced against appellant; that he endeavored to have his employer discharge him, but the witness, Pierce, should have been first asked about this matter to afford him a chance of denying or explaining the same. His explanation might have been such as to have obviated the necessity of any contradictory evidence. If he had denied the same, then, as showing prejudice on his part against appellant, it would have been competent to have contradicted him upon this collateral matter.'

"In the case of Martinez v. State, supra, Judge Brooks, discussing this identical question, uses the following language: ``We think the court erred in permitting the witness, Green, to contradict the witness, Arrera, because there was no predicate laid for contradiction. Appellant's defense was an alibi. His sister and brother-in-law had testified to facts, if true, would have entitled appellant to an acquittal. If the witness, Florentio Arrera, had been asked the question as to whether or not he stated to the witness, Green, at the time indicated in the bill, that appellant was not at the house, said witness might have been able to give some explanation as to the reason for making said false statement that would not have wholly destroyed his testimony.'

"And further in said opinion he says: ``It is a well known rule of evidence that where a party proposes to contradict a witness, the predicate must first be laid by asking the witness if he did not make a certain statement at a certain time and place and to a certain party.'

"He cites in support of the holding: Jordan v. State, 10 Tex. 479 [10 Tex. 479]; Walker v. State, 6 Texas Crim. App., 576; Mason v. State, 7 Texas Crim. App., 623.

"In the case of G.H. S.A. Ry. Co. v. LaPrelle, supra, Chief Justice Fisher, for the Court of Civil Appeals, uses the following language: ``The appellee, on the trial of the case, did not lay any predicate for the introduction of this evidence by first inquiring of the witness, Dillon, as to whether such a request for information had been made of him, for the names of the present witnesses, and giving the time and place of such request.'

"He reversed and remanded the case upon this one question, and in the opinion cited in the Queen's case, hereinabove mentioned, and from which opinion the statement hereinabove made is taken.

"Again the court erred in its opinion of affirmance in holding that it was not necessary to limit the testimony of the witness, Lee, as complained of in bill No. 1, for the purpose of impeachment of appellant's brother as a witness, even if the testimony was admissible, as presented in appellant's bill of exceptions No. 2.

"It might be that a jury of lawyers would know how to draw a distinction between the purpose of admission of testimony and the effect of its admission, but how it can be held that the average layman could draw this distinction is beyond comprehension. It is not a question as to the purpose the State or the court had in admitting the testimony. This purpose should have been made known by a charge from the court to the jury limiting the evidence to the purpose for which it was admitted, if it was admissible, the jury had nothing to do with the purpose that may have been hidden in the mind of the prosecuting attorney or buried in the ``breast' of the court in offering certain testimony. They deal with the effect of testimony and not with the purpose for which it was introduced, and it has always been held that if the evidence could be used by the jury as an incriminating fact or to exercise a strong, undue or improper influence upon the jury as to the main issue, injurious or prejudicial to appellant, then it is the duty of the trial court to limit or restrict the effect of such testimony in his charge so that no unwarranted results could ensue. This is practically the language used by the court in the case of Winfrey v. State, 56 S.W. Rep., 919; see, also, Maines v. State, 23 Texas Crim. App., 568; Washington v. State, 23 Texas Crim. App., 336; Davidson v. State, 22 Texas Crim. App., 372; Burks v. State, 24 Texas Crim. App., 326; Wilson v. State,37 Tex. Crim. 373; Benjamin v. State, 57 Tex. Crim. 291, 122 S.W. Rep., 542; Harvey v. State, 57 Tex.Crim. Rep., 121 S.W. Rep., 501.

"This is true and has been held to be true by this court even though the evidence is offered to impeach the credibility of the witness by showing his bias or interest in favor of the party upon trial. Coker v. State, 35 Texas. Crim. Rep., 57; Pearson v. State, 56 Tex.Crim. Rep..

"As stated above, the jury have to do with the effect of the testimony and not the purpose for which it is introduced. How can they know the purpose of the testimony unless the court informs them in his charge? It is true that a contradictory statement can be used to impeach the testimony of the party who testifies differently from the statement made, but here we have a different proposition. To show that a man's brother approached a witness in his case and undertook to have him change or compromise his testimony would be very persuasive to the jury that the defendant and his family were fabricating a defense, and it would but be the natural course of human nature to so conclude in the absence of a charge specifically telling the jury the purpose and only purpose for which they could consider the testimony.

"The rule is plainly announced by Judge Henderson in Wilson's case, supra, as follows: ``The general rule is that whenever extemporaneous matter is admitted in evidence for a specific purpose incidental to, but which is not admissible directly to prove the main issue, and which might tend, if not explained, to exercise a strong, undue or improper influence upon the jury upon the main issue, injurious and prejudicial to the right of the party, then it becomes imperative by the court in its charge to so limit and restrict it as that such unwanton results can not ensue; and the failure to do so will be radical and reversible error, even though the charge be not excepted to.'

"Again, in Taylor's case, supra: ``It is permissible where motive is the important question to prove other transactions of a similar character . . . but when this is permissible, it is always important that the charge of the court should properly limit and restrict the jury in their consideration of such testimony exclusively to the purposes of its admission, unless they should give it unwanton weight and as evidence proving the main fact.'

"In the case of Bennett v. State, 43 Tex.Crim. Rep., discussing the necessity of limiting testimony, the following language is used: ``But, without an instruction on the subject, would the jury confine their consideration of said testimony to that purpose alone? Would they know the object of its introduction? It must be remembered that jurors are, for the most part, unacquainted with the rules of law, and, therefore, the necessity on the part of the court to instruct them with reference to their duties.'

"Now, whatever appellant's brother said to the witness, Lee, it was subsequent to and no part of the transaction in which appellant shot and killed deceased, and as said in the quotation last above, ``would the jury confine their consideration of said testimony to that purpose alone? Would they know the object of its introduction?' In the present case, would not the jury conclude that the testimony was admitted for all purposes, and if so, would it not be natural for them to conclude that appellant was responsible for his brother's acts?

"The court, in its opinion of affirmance, overlooked entirely the case of Coker v. State, supra, decided by the sage of the criminal law of this State, Judge Hurt. In that case the State was undertaking to locate the shoes worn by Coker at the time of the homicide, it being shown that the shoes would likely reveal the truth as to whether or not the defendant committed the offense. His mother was one of his strongest witnesses, and the State was undertaking to show, and did show circumstantially, that she had hidden his shoes. An objection was reserved to the testimony and it was also objected that the court did not limit the testimony and Judge Hurt, in disposing of the question, in reversing the case, used the following language: ``Again, if Mrs. Sallie Coker concealed the shoes, appellant was not responsible for her acts. She, however, being a witness for him, the State, for the purpose of proving that she was very much biased in his favor, if not wholly corrupt, and therefore wholly unworthy of belief, could show it. This evidence, however, was not limited to the only purpose for which it could have been introduced. The jury were not instructed to consider it only for the purpose of impeaching Mrs. Coker. In the absence of instruction clearly and emphatically limiting it to its proper use, the jury would in all probability reason thus: the mother knew her son to be guilty; she knew or believed that his shoes, if found, would convict him; hence her conduct. She concealed them from the officers.'

"That case is directly in point with that feature of the question now under discussion. There it was attempted to show that the mother of Coker, and who, by the way, was a witness in his behalf, had suppressed testimony, and Judge Hurt clearly holds that it was the duty of the trial court to specifically and emphatically limit the effect of the testimony to the purpose of impeaching Mrs. Coker as a witness. This completely answers the opinion of this court wherein it is stated that the testimony was admissible because appellant's brother was a witness in the case.

"Again, in Pearson's case, supra, this court, then composed of its present presiding judge and Associate Judges Brooks and Ramsey, through a majority of the court, held in discussing the following question propounded to Pearson's witness, White, while upon the stand, towit: ``You are the man that went around to Mr. Pearson's daughter just after the killing and told her not to tell anything on him, didn't you?' that while the same was admissible to show the interest and bias of the witness, it was, nevertheless, the duty of the court to limit such testimony to the purpose for which it was admitted. The presiding judge of this court wrote the opinion in the Pearson case, and dissented, holding that the testimony was not admissible for any purpose, and cites the cases which appellant cites in his brief, as sustaining his dissent. The other two judges disagreed with the presiding judge as to the admissibility of the testimony, but held that it was the duty of the court to limit the effect of the same and, therefore, permitted the reversal of the case.

"Again, the court erred in holding the charge of the court instructing the jury that if defendant fired a number of shots, and the first shot was fired in self-defense, still if he continued to shoot, so as to hasten the death, when it no longer reasonably appeared to him that he was in danger, that such latter shots would not be in self-defense, but the offense in such event would be of no higher grade than manslaughter.

"``If the defendant in the course of a fatal altercation fired a number of shots, you are instructed that if the first shot was fired under the circumstances amounting to self-defense, the defendant had the right in self-defense to continue to shoot as long as it reasonably appeared to him that he was in danger, and if such first shot was fired in self-defense and defendant fired other shots into the head or body of deceased, thereby producing or hastening the death of the deceased when it no longer reasonably appeared to him that he was in danger, then such later shot would not be in self-defense, but the offense in such event would be of no higher grade than manslaughter.'

"The charge is an undue limitation and restriction of defendant's right of self-defense for the reason the testimony nowhere suggests the issue presented. All the testimony shows the shots were fired rapidly and that it was a continuous transaction, hence the charge presented an issue justifying defendant's conviction for manslaughter not raised by the testimony. Under the charge the jury were justified in finding as they did for manslaughter, notwithstanding they might have believed that the first shot produced the death, and that it was fired in self-defense. It is no offense to fire an additional shot, if death resulted from the first shot. Besides the court does not present in his charge to the jury the converse of the proposition. It was a charge upon weight of evidence and calculated to lead the jury to the conclusion that the court was of the opinion that appellant was at least guilty of manslaughter because he had fired some eight or nine shots. Clark v. State, 56 Texas Calm. Rep., 293; Smith v. State, 23 S.W. Rep., 701; Duke v. State, 33 S.W. Rep., 433; Jones v. State, 44 Tex. Crim. 405; Swain v. State, 48 Tex.Crim. Rep., 86 S.W. Rep., 335; Best v. State, 61 Tex.Crim. Rep.; Foster v. State, 67 Tex. Crim. 5, 148 S.W. Rep., 583.

"This charge authorized appellant's conviction for manslaughter if he fired a shot after Manning's death, even though the first shot was fired in self-defense. It is no offense to fire a shot into the body of one who has expired. If this was true, he would be guilty of manslaughter if he went now and fired into the body of deceased. That he fired after the death of deceased is receivable as evidence only for the purpose of arriving at the motive with which he fired the first shot. There being no question of an abandonment of the difficulty on the part of the deceased, and all the evidence showing that it was a continuous transaction, we submit that if the first shot was in self-defense that all were in self-defense, and that it was error to permit his conviction for manslaughter under the terms of this charge.

"The judge writing the opinion infers that appellant fired shots after deceased was upon the ground, whereas all of the testimony is to the contrary. The doctor used by the State testified that all of the shots were straight in with the exception of two and that they ranged slightly downward. He could not even approximate the degree of the range; and defendant, the only eyewitness, testified that all shots were fired before deceased fell. A minute description is given in the opinion as to how long it took to operate the gun, for the purpose, we presume, of destroying the idea that it was a continuous transaction. The evidence upon this point is that it was a four-arm rifle, one of those rifles that works with a slide, that you did not have to throw it back and forth like an ordinary Winchester, but that you could shoot it as fast as you could work the trigger. Appellant testified that it was a repeating Remington, four-arm rifle and that he could shoot it as rapidly as he could work his hand and that he did not shoot after Manning fell. Miss Maud Layton testified that she heard the shots and it went just like firecrackers. This was all the testimony as to how the shots were fired, and we submit that it showed a continuous transaction, without ceasing or interruption, and if so, and the first shot was fired in self-defense, all were fired in self-defense. The testimony does not suggest the idea of an abandonment of the difficulty or of a cessation of the shooting and the same is in line with the opinion by Judge Harper in the case recently decided wherein he held that the shots were a continuous transaction.

"Taking the case upon the whole, each of the questions discussed, appellant is entitled to a reversal."