Paris v. State , 35 Tex. Crim. 82 ( 1895 )

The appellant in this case was convicted of murder in the first degree, and his punishment assessed at death, and from the judgment of the lower court he prosecutes this appeal. The theory of this case for the State is that the appellant was hired by one W.G. Parish to kill the deceased, Y.M. Langdon. The killing occurred at night, on one of the public streets in Dallas, in front of the house of the deceased, and was done with a piece of gas pipe. The evidence for the State showed said piece of gas pipe was procured by the defendant several days before the homicide, and in anticipation thereof, and that, on the night of the killing, W.G. Parish accompanied the defendant to within a short distance of the scene of the homicide, and remained in waiting while the defendant proceeded down about half a block to near the front of the house of the deceased. In a short time thereafter, an electric car came along. The deceased alighted from it, and proceeded across the street towards his home. The defendant intercepted him, struck him over the head with the piece of gas pipe, which felled him to the earth, and then fled; went back to where W.G. Parish was, and they proceeded together for a short distance, and then separated. This occurred on the night of the 22nd of October, 1893. About ten days after this the defendant was arrested in Lampasas. Aside from his confessions, the case against defendant was of a purely circumstantial character. The defenses relied on by appellant were an alibi, and that, if he killed the deceased, he was under duress, and compelled to do so by W.G. Parish; and he accounted for all of his acts and conduct, adduced by the State in connection with the homicide, and claimed by the State as inculpatory, as having been induced by one Fosdick, who, he claimed, was a detective employed by the State, and who induced him to pursue such a course of conduct in order to inculpate the said W.G. Parish in the homicide. In the view we have taken of this case, it will not be necessary to notice all of the bills of exception or assignments of error, and we will therefore only discuss such as we deem necessary. The appellant in this case objected to the statements or confessions testified to by Sheriff Cabell, as having been made to him by the defendant on the train en route from Lampasas (the place of his arrest) to Dallas, claiming that the same were not voluntary and freely made, but that he had been induced to make same by certain statements made to him by one Cornwell, who was also an officer, to the effect that it would be best for him to make a full statement to said Cabell of all he knew about the homicide, and that he would help him, or that it would be better for him. He also objected to the testimony of one Ripley Harwood, a member of the grand jury, as to the statements of appellant made before the grand jury in the investigation of this case, claiming that same was not freely and voluntarily made, but that same was still effected by the promises of said Cornwell, as evidenced by the fact that, before he made the said statement before the grand jury he asked them for a written agreement that he would not be prosecuted for the murder of the deceased. The court overruled the objections of the defendant, and allowed the testimony. We have examined the record in this case, and in this action of the court in admitting the testimony we see no error. The evidence shows that, whatever may have been the suggestions made to the defendant by Cornwell, before he made any statement to Cabell he was rewarned by that officer; and, as to the statements made by defendant before the grand jury, he asked to be brought before the grand jury of his own accord, and, while he insisted that the grand jury should make an agreement with him to protect him against prosecution, they expressly told him they had no power in the premises, and the County Attorney was the only officer who controlled that matter, and they declined to make any agreement with him, after which he made the statement contained in the record of his connection with the offense. In this connection, however, we would observe the failure of the court to give a charge to the jury submitting the issue to them as to whether said confessions were freely and voluntarily made by the defendant, inasmuch as the defendant himself, when on the stand, denied that the confessions were freely and voluntarily made, and claimed that he was induced to make same by promises to him by Cornwell. The court should have instructed the jury on this point, and informed them that if they did not believe that said confessions were freely and voluntarily made by the defendant, but were made on compulsion or promises on the part of the officer, they should wholly disregard the same, and this notwithstanding no exception was taken to the failure of the court to so charge. Appellant complains that he was not allowed to prove by the State's witness, Ben Cabell, when he was on the stand, that he had a man in his employ as detective, assisting in rounding up the slayer of Y.M. Langdon, whose real name was Harbold, but who went under the name of Fosdick and other names. Defendant proposed to prove that said Cabell had in his employ such a man, and that he was the same man who induced defendant to make the confession which is a part of this record. In view of the fact that appellant, in his testimony, stated that he was employed by this man Fosdick, after the killing of Langdon, to aid in laying the homicide to W.G. Parish, and that he accounted for all of his acts and conduct and for his confession on account of his said agreement with Fosdick, and that this testimony was in rebuttal of the State's case against appellant, and that defendant alone, of all the witnesses, testified as to any knowledge of this man Fosdick, rendered the testimony proposed to be adduced from the sheriff material, as corroborative of defendant's testimony, showing by said sheriff that there was such a man engaged in detective work in ferreting out said case. The defendant's testimony stood alone as to the identity of this man, and, if he could have re-enforced his evidence by the testimony of the sheriff that there was such a man at Dallas at the time engaged in detective work in said case, it seems to us that it would have been very important testimony on his behalf. Without such corroboration, the jury may have been disposed to doubt the reality of the person in question; but with the testimony of the sheriff on this point, who was certainly not interested on behalf of the defendant, they would no longer entertain a doubt as to the existence of such a person. But whether that testimony was worth much or little is not the question. It was legitimate testimony for the defendant, and he was entitled to the benefit thereof.

When Rosa Paris, witness for the defendant, was on the stand, the State, on cross-examination, asked her if she did not testify before the grand jury that W.G. Parish had called many times at her house, and that he had always called for John (meaning defendant, John Paris), and took John away with him. The witness denied this, whereupon the State called one Ripley Harwood, who testified that said Rosa swore before the grand jury that W.G. Parish often came to her house, and that he always called for John, and took him away with him. The court, after the admission of this testimony, wholly failed to limit same to the sole purpose of impeachment of said Rosa Paris, and as going only to affect her credibility before the jury, to all of which the defendant excepted. The basis of the State's case against the defendant was that he had entered into a conspiracy with W.G. Parish to kill the deceased, Langdon, and all legitimate testimony bearing upon this important fact was quite material in the prosecution of the case against the defendant; and, if the State could have shown the fact, pending the conspiracy, that W.G. Parish frequently came to the house of Rosa Paris, the sister of defendant, and had interviews with John, and took him away with him, it was very important. When the defendant placed this witness on the stand she was not questioned upon this branch of the case, nor anything connected with said statement. When the State took her, on cross-examination, she was asked for the first time regarding whether or not she had made such statement in the grand jury room; and, upon her denial of same, the State was permitted to prove by one of the grand jurors that she did make such statement, as before quoted; and, without some limitation in the charge as to the purpose for which this evidence was adduced, the jury were liable to regard it as a fact proven in the case that W.G. Parish frequently came to the house of Rosa Paris, and took John away with him, preceding the homicide or immediately thereafter. And the decisions of this court appear to be predicated upon this idea. At least, they proceed upon the view that where such testimony, not of facts, but adduced for the purpose of impeachment of a witness, is produced upon the trial, it is the duty of the court to carefully guard the jury against the consideration of the same, except for the purpose for which the testimony was admitted; and we have searched through the Reports in vain for a case where this character of testimony was offered, and the court refused to properly limit same, and an exception was taken thereto, where this court has not reversed the judgment. See Williams v. State, 25 Texas Crim. App., 77; Foster v. State, 28 Texas Crim. App., 45; Rogers v. State, 26 Texas Crim. App., 404; Thompson v. State, 29 Texas Crim. App., 208; Shackelford v. State (Tex.Crim. App.), 27 S.W. Rep., 8. And a number of other cases might be cited where no exception was taken to the failure of the court to charge the jury with reference to said impeaching testimony, but such is not deemed necessary. We would further observe that the record disclosed that Rosa Paris was the State's witness as to this matter, and it is exceedingly questionable whether she could be impeached at all by the State. The appellant in this case complains that the court, in charging upon his defense of duress, improperly limited the charge to the actual presence of W.G. Parish at the scene of the homicide. The testimony in this case shows that W.G. Parish was not immediately present at the killing of Langdon; that he was from one to two hundred feet, or about a half a block, away at the time the mortal blow was given. It also shows that he was armed with a pistol. The charge, after quoting the statute in question, the third clause of which reads as follows: "The act must be done when the person threatening is actually present," instructs the jury that the said W.G. Parish must be actually present at the scene of the killing at the time it occurred, in order to create a duress which would be a good defense. The defendant, in this connection, requested the court to instruct the jury as follows: "The act must be done when the person making the threat is actually present; and in this connection the jury is instructed that if the person making the threat be not actually present, but is in such proximity to the place where the act is committed as to have command and control over the person threatened, and this fact is known to said person, and by reason of it he is put in fear of his life or of great personal injury, then such proximity of the person making the threat would in law be an actual presence at the time the act was done." This was refused. While it is true that the literal language of the article in question (Penal Code, Art. 43), requires the party duressing another to do an unlawful act to be actually present at the time, yet we apprehend that a proper construction of this section means only that the person shall be so near as to have the party with the means at his command under his power and control at the time he does the act; and a person 20 or 30 paces from the immediate place of the killing, armed with a pistol or shotgun, might have the person doing the act as much within his power and control as if he was only a few feet distant from him when he performs the act. In one sense, W.G. Parish was actually present at the time of the killing, and the language of the court might embrace the idea of his actual presence, but yet it may have been misunderstood, and the jury might have been misled thereby, and believed that the court required them to find that he was at the immediate spot of the killing before they would allow the defense of duress. The charge asked by the defendant on this issue was pertinent, and applicable to the facts in proof; and, in our opinion, such a charge, defining what is meant by actual presence, should have been given, so as to have adequately guarded the rights of the defendant on this defense of duress set up by him. Other errors are assigned, but they are upon questions not likely to occur again on another trial of the case, and so we deem it unnecessary to discuss them. We have carefully examined the record in this case, which is voluminous, but, in view of another trial, it is not proper that we express any opinion as to the evidence. Whether the jury which tried the case would have attached any weight to the excluded testimony is not for us to say, or whether the charge of the court, if it had properly limited the admitted testimony, in the one case, and had presented the issues to the jury, in the other, would have changed the result, is not our province to inquire; but we do know that, under the law and the decisions of this State, the defendant has been deprived of testimony to which he was entitled, and the charge of the court did not adequately present the issues as to the other evidence which was admitted. Every citizen, when placed upon trial for his life, is entitled to a trial according to the due course of the law of the land; and the rules of evidence in the admission of testimony, and the application of rules of law to admitted testimony, are as much part of the law of the land as trial by jury itself. These rules of law may be termed by some technicalities, but they accord with a fair and an impartial trial, and are founded in the wisdom of experience; and, moreover, some of these constitute the safeguards and bulwarks of human rights, and, whenever or whereever they have been disregarded or ignored, that era has marked the decadence of human freedom. For the errors of the court heretofore pointed out and discussed, the judgment of the lower court is reversed, and the cause remanded.

Reversed and Remanded.