Rains v. State , 140 Tex. Crim. 548 ( 1940 )

The offense is murder; the punishment, confinement in the penitentiary for two years.

It was charged in the indictment, in substance, that appellant, with malice aforethought, killed George Batalis by shooting him with a gun.

The case was tried in Harrison County on a change of venue from Gregg County.

According to the testimony of the State, appellant killed deceased without provocation. Appellant gave testimony which raised the issue of self-defense.

Bill of exception No. 1 is concerned with the introduction in evidence of the declaration made by the deceased a few minutes before he died. It is shown in the bill that about five minutes after he had been shot deceased stated to the attending physician that he did not know why appellant shot him, and further said, "God forgive him." The bill, as prepared by the court, shows that the declaration was res gestae.

Bill of exception No. 2 complains of the action of the trial court in limiting the number of character witnesses for the appellant. It appears from the bill that after three witnesses had testified to appellant's good general reputation as a peaceable and law-abiding citizen the State admitted before the jury in open court that appellant's reputation in the respect mentioned was good up to the time of the trial. In view of this admission by the State, there was no error committed by the court in declining to let appellant go through the formality of having other character witnesses testify. Bowlin v. State,248 S.W. 396.

It appears from bill of exception No. 3 that an assistant district attorney who worked with the grand jury that indicted appellant testified that appellant appeared before the grand jury, and, after due warning, "admitted the whole thing." Upon objection being made by counsel for appellant, the jury were promptly instructed not to consider the statement of the witness. In view of the instruction of the court, we are of opinion that the bill fails to present reversible error.

Bill of exception No. 5, as qualified, shows that the testimony set forth in said bill to which appellant objected was given by other witnesses without any objection upon the part of appellant. We quote from 4 Texas Jurisprudence, 587, as follows: "It is a general rule also that the admission of improper evidence does not constitute reversible error if the same facts were proved by other and proper testimony or by evidence which was not objected to, * * *." See Trimmer v. State,120 S.W.2d 265.

Bill of exception No. 7 presents the following occurrence: Appellant testified upon the trial that he did not tell the officers to whom he surrendered immediately after the homicide that he had seen a knife near the body of the deceased and had picked the knife up. He also testified that he had the knife in his possession when he voluntarily appeared before the grand jury which was investigating the case, and that he did not tell the grand jury about the knife, stating that he was not asked about it. The State introduced an assistant district attorney and members of the grand jury, all of whom testified that appellant was asked if he had seen a knife, gun or other weapon about the deceased at the time of the killing, and that appellant had stated before the grand jury that he did not see such weapon. The officers to whom appellant surrendered immediately after the homicide were also called as witnesses and they testified that when the appellant surrendered he gave up his gun, but that he did not mention to them that he had seen or had possession of a knife which he had obtained near the body of deceased. Appellant produced witnesses who testified that they had seen this knife or a similar knife in possession of the deceased prior to the homicide. The State introduced witnesses who worked for deceased and who testified that they had never seen such a knife in the possession of deceased. Appellant then offered to prove by the witness Orr that the next morning after the homicide he told Orr that he (appellant) obtained a knife near the body of the deceased and would show it to Orr sometime. The State's objection to this testimony was sustained. The purported conversation with the witness Orr was had the next day after the homicide and after appellant had been charged with murder and after he had made bond. In Browney v. State, 79 S.W.2d 311, the rule is stated as follows: "It is well settled that where a witness has been impeached by showing that he made other and different statements in regard to the matter than those testified to by him on the trial he can be supported by showing that he made similar statements to those testified to by him recently after the occurrence. However, if the supporting statement was made after a motive or inducement existed to fabricate, the supporting statement is then inadmissible." We think the record reflects the fact that there existed a motive to fabricate at the time the appellant made the statement to Orr. See Porter v. State, 50 S.W. 380.

Bill of exception No. 8 relates to the argument of the district attorney. As qualified, the bill of exception shows that the argument of counsel for the State was invited by the argument of appellant's counsel. See Nix v. State, 124 S.W.2d 386.

Failing to find reversible error, the judgment is affirmed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

ON APPELLANT'S MOTION FOR REHEARING.