Wright v. State , 36 Tex. Crim. 427 ( 1896 )

Appellant was convicted of manslaughter, and his punishment assessed at two years in the penitentiary, and he prosecutes this appeal. In this case appellant took several bills of exception to the refusal of the court to permit testimony that the deceased had used insulting language toward the female relations of the defendant. The offer of this testimony was not coupled with any proffer on the part of counsel to show that, prior to the killing, the same were communicated to the defendant, and that thereafter he shot the deceased on his first meeting with him; and the court informed counsel that, if they would connect said testimony as above stated, he would admit the same. There was no error in this action of the court. Objection was also made to the witness, John Howard, testifying that he could approximate the size of the ball from the size and character of the wounds he saw in the body of the deceased, and that said wounds were inflicted by a ball ali the way from 38 to 45-caliber. This was objected to on the ground that it was not such a matter concerning which an opinion could be given, — that it was not a matter of expert testimony. We believe that this testimony was admissible. Concede, however, that it was not, the object of it was to prove that the wounds were inflicted by bullets of 44-caliber. There was no question as to this. The defendant himself admitted that he did the shooting with a 44-caliber Winchester. Nor, as explained by the court, was there any error in the refusal of the court to permit the witness, Howard, to state what occurred in the grand jury room as to raising a subscription to employ counsel to prosecute the appellant. It was intended by this testimony to show the animus of the witness, Howard, who testified on behalf of the State, and the court shows that the defendant was permitted to prove by this witness that he contributed money towards the prosecution of the defendant in this case. Objection was also made to the witness, Jim Love, testifying as to a conversation between him and Mrs. Campbell the night that said Love and defendant Wright went to the tomato patch with their guns to await the coming of the deceased. It appears that the defendant was present at the time, and in a situation to have heard the conversation. The testimony only showed that Love went with his gun at the request of Mrs. Campbell, rather than at defendant's request, though he went with the defendant, and they both were engaged in the same mission, and understood what they went there for; and it is immaterial whether he went at Mrs. Campbell's request or at the instance of the defendant. He went with the defendant, to co-operate, with him in whatever he did. There was no error in the exclusion of the witness, Ludwig's, testimony to the effect that deceased may have cursed and abused the wife of said Ludwig. She was not related to the defendant, nor did said transaction have anything to do with the killing in this case. We do not understand that John Perkins was on trial in this case, or that the defendant can avail himself of an objection to testimony by the wife of John Perkins that might tend to incriminate him (John Perkins) in the killing of the deceased. However, the testimony of Mrs. Rena Perkins did not have that effect. When the defendant, J.A. Wright, was on the stand, testifying on his own behalf, on cross-examination, the State was permitted, over the objection of the defendant, to ask him, "Did you not tell Mr. Brown when you went to see him (Brown) that he (Glover) started to draw his pistol on you, and that, you then shot him?" and the defendant answered that he did not — that he was positive he did not mention a pistol, because the deceased did not have any. This proceeding was had after the defendant had surrendered to the constable, Brown, and while he was under arrest, and had not been cautioned. Subsequently the State was permitted to introduce George Brown, and to prove by him that, after the defendant had surrendered, said defendant stated to him that he had killed Glover in the field, had had some words with him, and he (Glover) started to draw his pistol, and he shot him. This testimony was also objected to by the defendant, on the ground that at the time the statement was made the defendant was under arrest, and had not been cautioned, and his confession or statement could not be used against him for any purpose. It will be noted, in this connection, that defendant testified that, on the morning of the homicide, he took his gun, and went to see the deceased, who was plowing in a field, in regard to some abusive language that he had used a few days before to the wife and mother-in-law of the defendant, which language was insulting in the extreme, and had only been communicated to him on that morning; that he went to where the deceased was plowing in his field, to demand in explanation or an apology, and, when he approached the deceased, and asked him about it, deceased replied, "I did intend to insult you, you God damned son-of-a-bitch," and ran his hand in his pocket and got his pocketknife, and that then he (defendant) commenced shooting. The object of the State in cross-examining the defendant was to lay the predicate for impeaching him as to said transaction, and, on his denial thereof, to prove by the witness, Brown, that the defendant said deceased attempted to draw a pistol on him, and he shot him, instead, as he testified, that deceased ran his hand in his pocket, and got his pocketknife. The object and effect of this testimony, as stated, was to impeach the defendant by the witness, Brown, upon a most material part of the case. The evidence of the defendant showed that the deceased had a knife, but did not have a pistol. In the case of Morales v. State, decided at last Austin term of this court, ante p. 234, it was held that, where a defendant was in jail, or under arrest, although on the trial of the case he became a witness on his own behalf, it was not competent for the State, on cross-examination, to draw out from the witness statements or declarations made by him under such conditions, without being warned, for any purpose, either as original testimony against him, or in order to lay the predicate to contradict him, and thus impeach him by other witnesses. This case overruled Quintana v. State, 29 Tex.Crim. App., 401, and other cases on this line. Under the rule laid down in said case, the cross-examination of the defendant and the impeaching testimony of Brown were clearly not admissible.

While it was admissible for the State to draw any proper deductions from the testimony of the witnesses and their acts and conduct, going to discredit their testimony before the jury, counsel in this case seem to have used the testimony of Mrs. Campbell and Mrs. Wright, in regard to their failure to communicate the insulting language of the deceased to them to the defendant for several days thereafter, in order to reflect upon and stigmatize them as unchaste women. No evidence was offered of this character, and we do not believe that this was a legitimate deduction from the testimony, and, under the circumstances, we think the court should have given the charge requested by the appellant on the subject. This was not a case calling, for a charge on circumstantial evidence. The appellant's assignment in that regard is not well taken. For the error of the court in permitting the cross-examination of the defendant, while on the stand, as to statements made by him while under arrest, and not having been cautioned, and permitting his impeachment by the witness, Brown, the judgment is reversed, and the cause remanded.

Reversed and Remanded.