Faulkner v. State , 43 Tex. Crim. 311 ( 1901 )

Appellant was convicted of murder in the first degree, and his punishment assessed at death.

The facts of the case show that between 11 and 12 o'clock on the night of December 3, 1900, deceased, C.P. Bane, was in the saloon of Chapman Faulkner, situated on the southeast corner of Elm and Preston streets, in the city of Dallas. He was in an intoxicated condition. At the particular time he was in the rear room of said saloon, which was partially cut off by a screen from the front room, where the bar was situated. He was sitting by a stove, in a bent position, evidently asleep, or in a state of stupor. Turpentine was poured on his back by appellant, or by those with whom he was engaged, and some one set fire to the clothing of deceased, and the fire at once spread over his person, the flames shooting up two or three feet above his head. He rushed from the rear of the saloon to the front, enveloped in a sheet of fire. His clothes were almost entirely consumed. He either fell on the floor or was thrown down in an attempt by some one to put out the fire. He was shown to have suffered great agony and pain. In a short time he was removed from the saloon to the city hospital, where he lingered for a few hours, expiring from the effects of the burns he had received. We understand this to be uncontroverted. The theory of the State was that appellant and his partner, Chapman, Renner, and possibly the two Pruitts, acting together, — the first two out of motives of robbery, and all of them in a spirit of diabolism, — poured turpentine on deceased, and appellant set fire to him. The theory of defendant was that the turpentine was poured on deceased, not for the purpose of killing him, but for amusement, and that it was not designed to burn him, and that some one set deceased afire while he (defendant) was not present, and without his knowledge or consent.

Appellant made a motion to change the venue on the ground that so great a prejudice existed against him as that he could not expect a fair trial. This was supported by his own affidavit and that of M.A. Rawlins and T.M. Barnard. The State controverted this by the affidavit of J. Roll Johnson, sheriff of Dallas County, who, in effect, stated that appellant's compurgators were obscure persons, and their acquaintance in said county was limited; and that said compurgators were friends of defendant and his associates, and on that account they were biased in favor of defendant; and said defendant could procure a fair and impartial jury in Dallas County. On the trial of this motion appellant introduced forty-three witnesses, a great majority of whom lived in the city of Dallas and Oak Cliff. Some, however, lived in other portions of the county. These were shown to be of almost every vocation, — ministers, merchants, lawyers, farmers, physicians, newspaper men, — and it was shown by them that their acquaintance was extensive throughout the county, that they had conversations with a great many persons, and heard expressions in regard to the burning of Bane by defendant and his confederates, and that all the expressions heard by them were to the effect that defendant was guilty. Some said he ought to be hanged, and some that he ought to be burned. A majority of these witnesses stated that they had formed an opinion as to the guilt of appellant, but that they believed they could give appellant a fair trial, and they believed that he could get a fair trial in Dallas County. However, some admitted that they had formed opinions in regard to appellant's guilt, which were fixed, and that they did not believe he could get a fair trial in the county. In connection with this it was shown that the trials of Renner and Chapman had preceded the trial of appellant, and that the newspapers (including the Dallas News, Times-Herald, and Garland News) had published some or all of the testimony in the cases. The circulation of these papers was shown to have been extensive throughout the county. In addition it was shown that in the trial of said two preceding cases a special venire was chosen, and evidently through this, as well as through the newspapers, the case against appellant became notorious throughout the county. It appears from the bill of exceptions that after forty-three witnesses had been produced by appellant, and testified as to the prejudice against him, the court refused to hear any further testimony from him, and none was introduced by the State in contravention of the evidence of appellant's witnesses. The court says that all or nearly all the witnesses introduced by appellant were from the city, and that their evidence showed that no prejudice existed. In addition the court states he had heard over one hundred witnesses in the Chapman and Renner cases on like motions, many of whom were from the country, before hearing this motion, and over seventy of them qualified and about ninety disqualified as jurors, and but one in all the cases believed or heard of any prejudice. Why the court interpolated this explanation as to the motions for a change of venue in the other cases, and as to what they said is not stated. Certainly, what said parties stated in other cases was not evidence in this case; and, if these were some of the witnesses appellant proposed to introduce, certainly their testimony should have been admitted. Moreover, it is stated in said explanation that ninety of one and sixty men from the country were disqualified. The grounds upon which they disqualified is not stated. However, the court remarks "that but one in all the cases believed or heard of any prejudice." What the court terms "prejudice" means is not stated, but we may gather from his previous statement to the effect that the witnesses who had been introduced all showed that no prejudice existed against appellant that he means by this that when a person has formed an opinion that defendant is guilty, and that he ought to be burned or hanged, and that these were the universal expressions he had heard in regard to defendant and the case, that this is not such prejudice as ought to operate to change the venue. Now, it has been held by this court, since Randle's case, 34 Texas Criminal Reports, 43, that "prejudice" and "prejudgment" mean the same thing; that is, when one has prejudged a person's guilt of the accusation charged against him, that he has a prejudice against such person. In Meyers v. State, 39 Texas Criminal Reports, 500, the same doctrine was announced. The writer of this opinion, however, upon this proposition, differed with the majority of the court in the Meyers case, believing that the mere formation of an opinion in the case did not involve a prejudice against defendant, which, according to the ordinary definition of the term, must carry with it some element of hatred or ill will. But in that connection the following language was used: "A case may occur of such startling atrocity as not only to create the formation of an opinion in regard to the guilt or innocence of the party accused of crime, but also to engender a personal prejudice of animosity against such person, that is, the case itself may be so horrible as to engender a personal prejudice against the person accused of perpetrating it." And to the same effect, see Gallaher v. State, 40 Tex.Crim. Rep.. However, the Randle case has been followed in this State since its enunciation; but even if that be an extreme view in the definition of prejudice, certainly the modified doctrine as above expressed can not be successfully controverted. And if it be conceded that an appellant may be charged with the commission of an offense so atrocious as to create a prejudice against him, then evidently this case meets the full measure of the most exacting requirement; for in wickedness and atrocity it is equaled by few and excelled by none in the annals of criminal jurisprudence. The statements of the witnesses introduced, their intelligence, apparent disinterestedness, and their means of information, although a majority of them lived in the city of Dallas, it occurs to us was enough, and more than enough, to convince the most skeptical mind that the case against appellant and his confederates was well known and thoroughly discussed throughout the limits of Dallas County, and that the evidence against appellant had permeated every portion of that community. True, a majority of the witnesses say that they could give appellant a fair and impartial trial, and they believed he could get such trial in Dallas County, but they admit they have formed an opinion to the effect that appellant is guilty of burning a man, and that he ought to be hanged or burned therefor. If fair trial by jury, as guaranteed by the Constitution, be of any worth, what bides it, or of what avail is it, if a citizen charged with burning a fellow man is to be tried by a jury composed of men who have heard all about the offense, and who believe he is guilty and ought to be hanged, and yet believe — no doubt honestly — that they can give defendant a fair and impartial trial? Prejudice is a sinister quality. It may possess a man and he not be aware of it; or, being aware of it, he may purposely conceal it, in order that he may vent his revenge. In according a change of venue our statutes wisely provide against that prejudice which may creep into the jury box. It is intended to avoid, as far as possible, the impanelment of even one prejudiced juror; and our decisions proceed upon the idea that, where a crime, on account of its atrocity, has become notorious, and the prevailing sentiment in the community is that the party charged with the offense is guilty, he is entitled to a change of venue. Here the testimony was all one way. The State introduced none, and the learned judge deprived appellant of the privilege of introducing further testimony. If the testimony adduced was not satisfactory, certainly he should have afforded appellant the right to introduce other evidence. But, unquestionably, in the face of the testimony already received, it did not lie with him to refuse to hear other evidence of the same character, and then refuse to grant the change of venue. Such a course, in the face of our decisions, was only calculated to shift the responsibility, and delay the final determination of this case.

Appellant also made a motion to quash the venire. We will not discuss this matter further than to remark that the attempt to get a venire in this case affords an additional reason why the venue should have been changed. Most of the venire selected were disqualified on account of having been summoned in cases against appellant's codefendants and other causes, so that appellant had to select a jury from thirty-four special veniremen, instead of one hundred and fifty as originally drawn and summoned in his case.

Over the objections of appellant, the State was permitted to present an object lesson to the jury, intending to illustrate how deceased was burned. They first turpentined a piece of woolen goods, then set it on fire, and in the presence of the jury attempted to put it out. This was objected to on the ground that it was irrelevant, and was not in the nature of sworn testimony, and could subserve no purpose except to prejudice and inflame the minds of the jury. While it has been held that experiments could be made under proper conditions, and the testimony of these adduced before the jury (Clark v. State, 38 Texas Criminal Reports, 30), still this was not an experiment. It was not a transaction testified about by any witness, but merely a spectacular exhibition before the jury, and as such was not admissible. Riggins v. State, 1 Texas Criminal Appeals, 724.

In appellant's bills of exception numbers 5, 6, and 17 he questions the action of the court which was predicated on the introduction by appellant of the written contract between the State and the two witnesses Drew Pruit and Will Pruitt. Appellant claims that said written contract contained the testimony of Will Pruitt, and that he introduced it in that connection, and for the purpose of impeaching said witness as to some of his statements. Will Pruitt testified against appellant, but Drew Pruitt did not testify. On the introduction of this testimony it appears the court instructed the jury with reference to both Drew and Will Pruitt as accomplices, and that, if the jury believed they were accomplices, they could not find a verdict on their testimony alone; and, as they were accomplices, they could not corroborate each other. It is assumed by the court that appellant had introduced this contract as testimony, both as to the statement of Drew Pruitt and Will Pruitt, and that it was evidence for all purposes. He explains in this wise: "Counsel for defendant read in evidence to the jury the contract signed by Will and Drew Pruitt setting forth facts to which each would testify on their agreement with the State to testify in consideration of being released from prosecution as shown by the record. This was done by defendant's counsel after Will Pruitt had testified in behalf of the State. The witness Drew Pruitt was tendered to defendant's counsel during the trial as a witness at the time defendant opened his defense, if they desired to use him as such; but defendant declined to use him as a witness for any purpose." By an inspection of the contract it will be seen that the parts relating to the agreement between the State and Will Pruitt could not be read without reading also the contract of Drew Pruitt and what he would testify. Evidently appellant did not introduce this as testimony, but merely for impeachment purposes, and could not have introduced it to impeach Drew Pruitt, inasmuch as Drew Pruitt did not testify. It is assumed by the court that appellant had introduced this evidence as original testimony against himself. The State, however, was not entirely satisfied with this view, as it subsequently tendered Drew Pruitt to appellant as a witness. If appellant had already introduced as original testimony the written evidence of Drew Pruitt, there was no necessity to clinch this by the generous offer on the part of the State to permit appellant to use Drew Pruitt. We pretermit any discussion as to the fairness or unfairness of this conduct on the part of the court, but it does occur to us that the bills of exception can not fairly be construed as evidencing the fact that appellant had introduced against himself as original evidence such damaging testimony as that contained in the contract between Drew Pruitt and the State; and the assumption by the court that he had done so was not only improper, but exceedingly hurtful.

The State also proved by Cornwall that, from his experience as a police officer, when a man is robbed in one of the dives in the "South End," and the proprietor is indicted for robbing him, they always prove the man had no money. This testimony was admitted in evidence, and discussed by counsel for the State and defendant, until the closing argument was reached for the State, when the court withdrew it. Of course, the introduction of this testimony, being purely hearsay, was improper; and it is doubtful whether the action of the court in withdrawing it at the time it did could have cured the error, — that is, remove the effect which such testimony would naturally produce in the minds of the jury. Nor do we believe that the testimony of the witnesses as to what deceased said about the nickel with the hole in it, made as it was, and under the circumstances narrated by the witnesses, was admissible as evidence. It was improper testimony tending to fasten on appellant the crime of robbery. The declaration of deceased was not introduced as a dying declaration, but as res gestae. This was several hours after he had been burned, and made in answer to interrogatories calculated to elicit the desired answer. Nor was the testimony of Will Pruitt, introduced by the State, as to the change in color of Bill Renner's mustache from that of a brown color on the night of the homicide to that of black at the trial — suggesting an endeavor on his part to disguise himself — competent evidence for the State on the trial of this appellant. It was testimony that transpired long after any conspiracy that may have existed between said Renner and appellant as to the commission of the offense. Nor was it competent to show the number of children, and their ages, of deceased by his wife, Mrs. Pate Bane. No pertinency whatever is shown as to this matter, and it was simply intended to excite the sympathy and prejudice of the jury. Nor was it competent to bolster up, as was attempted to be done, the testimony of Will Pruitt, by proving by him that the county attorney, at the time he made the contract with him, told him if he implicated or brought into this any innocent man, that the contract would be forfeited. It is true appellant attempted on cross-examination to entangle said witness, and contradict him upon important matters by other witnesses. But this did not authorize the State to corroborate its witness by proving that he was telling the truth because he had contracted to do so and had also contracted not to implicate any innocent man. The testimony of J.D. Brannan that he heard some one saying, as he ran over to the saloon, "There is a man burning up in there, and they set him afire, too," but that he did not know who that young fellow was, was also incompetent. It was hearsay, made by some unknown person, and not by any of the participants, and was not res gestae. Nor, in our opinion, was it competent to prove by the witness John Willie, long after the commission of the alleged offense, that Chapman told him he got the nickel with the hole in it from one Rablowitz, a second-hand dealer, who lived next to his saloon. Said declaration was made long after any alleged conspiracy between the parties Chapman and Renner had transpired, made in the absence of appellant, and could in nowise bind him.

We would further observe that the charge of the court on principals is not in accordance with the rules of law, as we understand them. We quote said charge, as follows: "Or if you believe from the evidence beyond a reasonable doubt that in Dallas County, Texas, on or before December 3, 1900, that any person or persons bought turpentine or other inflammable fluids, and carried it into the saloon of Chapman Faulkner, and that said turpentine or other such fluid was poured upon the body of said C.P. Bane by any person or persons, and that the defendant was present in said saloon acting as a principal, as principals have been defined, and knew said turpentine or other inflammable fluid was poured or being poured or placed upon said Bane by any person or persons, and said match ignited and fired said turpentine or other inflammable fluid by any person or persons might probably result in the death of said Bane, and that said defendant, then and there acting as a principal as aforesaid, reasonably knew that such act might so probably result, and that the defendant was then and there the owner or one of the owners of said saloon, and that said burning of said Bane occurred in said saloon, and caused the death of said Bane, and that said defendant set said Bane on fire, or acted as a principal therein, — then, in that event, the defendant would be guilty, as a principal, of murder in the first degree, by torture, whether he participated in the said act or not, and whether it was intended to kill the said Bane or not, or whether the said Bane had been robbed or not; and without reference to what the unlawful intent of setting the said Bane on fire may have been, then you should so find and frame your verdict as directed above." The above charge is somewhat confused in that portion where the jury are told that, if appellant poured said turpentine on deceased, or knew that some one was pouring it on him, and some one ignited the match and fired said turpentine, and that appellant was present, and acted as a principal as that term had previously been defined, that he would be guilty, etc. This of itself might be regarded as announcing a correct legal principle rather abstractly, yet the court interpolated in that connection appellant's ownership of the saloon, which, under the circumstances, the jury were likely to regard as evidence or presumptive evidence of guilty knowledge on the part of appellant that some one set Bane on fire; at least, the charge is obnoxious to this criticism, and certainly it is not such a clear exposition of the law as appellant was entitled to have. If the law of principals had been directly applied in that connection to the facts, it would have afforded a better guaranty that the jury would measure fairly the evidence tending to show his guilt; that is, if they had been told, if appellant ignited the clothes of deceased, or was present at the time they were ignited by some other person, and he knew they were being so ignited, and he aided such person or persons by words or gestures, that he would be guilty as a principal. But the vice which pervades the whole charge, and which qualified it, is in the latter clause, where the jury are told that "defendant would be guilty as principal of murder in the first degree by torture whether he participated in the said act or not, and whether it was intended to kill the said Bane or not, or whether the said Bane had been robbed or not, and without reference to what the unlawful intent of setting the said Bane on fire may have been." The jury had previously been told that appellant must have participated in said act as a principal, but in the concluding part of the charge they are told to convict him whether he participated in the act or not. They are first to convict him as a principal, if he participated in the act, and they are then told to convict him whether he participated or not. Evidently the latter portion of this charge was contradictory and misleading, and its effect was to qualify the preceding portion thereof. It is not necessary here to lay down a form of charge that should be given further than to state there were two theories as to the guilt of appellant. One flowed from the State's testimony to the effect that appellant was present and aided in pouring the turpentine on deceased, and that he set fire to him. The other, which was based on the testimony of appellant's witnesses, was to the effect that he was not present when deceased was set on fire, but at that time he was in the front of the saloon, behind the counter. On the first theory the court attempted to instruct the jury as we have above indicated, but on the last theory no instruction was given. Those asked by appellant on the subject were refused. Now, if appellant conspired with others to pour turpentine on deceased, and then set fire to and burn him, he would be guilty, though he was in the front part of the saloon at the time; or if he did not conspire with others to set fire to deceased, if he was present in the saloon, and knew that others were engaged in setting fire to deceased, and he aided them by acts, words, or gestures in any wise, he would be equally guilty with those who set fire to deceased. But, on the contrary, if he only engaged with others to turpentine deceased, and without his knowledge and consent some one else set fire to and burned deceased to death, then he would not be guilty. Guffee v. State, 8 Texas Crim. App., 187; Blain v. State, 30 Texas Crim. App., 707; Mitchell v. State,36 Tex. Crim. 309; Red v. State, 39 Tex.Crim. Rep.; Leslie v. State, 42 Tex.Crim. Rep.; Bibby v. State (Texas Crim. App., Tyler Term, 1901), 65 S.W. Rep., 193. These principles of law, in clear and distinct phraseology, should have been presented to the jury.

We do not deem it necessary to discuss the testimony in this case, nor to pass judgment upon its weight, further than to say that, as manifested by this record, the State presented a strong case against appellant. But on that account it became the more necessary that all the safeguards which the law provides to secure a fair and impartial trial should have been carefully preserved. These rules were intended for the protection not of the guilty, but of the innocent. Yet if, on the trial of even a guilty man they should be violated, who can tell how soon precedents so coined will go to entrap and destroy the innocent? At any rate, it is our duty to see that the rules of law, which are intended to secure a fair and impartial trial and to guaranty that the channels of justice shall remain pure and unobstructed, are duly observed in every criminal trial. That appellant has not been accorded this is manifest from the errors heretofore pointed out. The judgment is accordingly reversed, and the cause remanded.

Reversed and remanded.

Davidson, Presiding Judge, absent.

[Note. — The State's motion for rehearing was overruled without a written opinion. — Reporter.]