Ellington v. State , 48 Tex. Crim. 387 ( 1905 )

Appellant was convicted of an aggravated assault, and his punishment assessed at a fine of $300, and appeals. The facts of this case for the State briefly stated show, that prosecutor Frank Bauman and appellant Frank Ellington were neighbors, both engaged in farming — their farms situated on Nolan's Creek in Bell County. Prosecutor on the day in question was hunting and passed up the creek through the farm of Adams, which adjoined appellant's farm. There he witnessed a wordy altercation between Mrs. Adams and appellant, in which he interfered, and told appellant substantially that he knew that if Mr. Adams was at home he would not talk that way to Mrs. Adams. Appellant then turned his attention to him. Prosecutor started towards him, and as he was coming, appellant drew his hammer first and then his six-shooter. Prosecutor then run to a tree, and when he got about two steps from the tree, appellant shot at him first, and then he shot at appellant.

Appellant reserved two bills of exceptions to the introduction of evidence offered by him. The first bill shows that while defendant was on the stand and testified in his own behalf, counsel for defendant asked him to state the conversation had between him and Mrs. Adams and Frank Bauman, just immediately before and at the time of the shooting, for the purpose of explaining just what was said between Mrs. Adams, defendant and Bauman, and for the purpose of showing that appellant had not provoked any trouble with Bauman, and had not cursed and abused Mrs. Adams for dogging his cows. The county attorney objected to this testimony; that is, the portion showing a conversation between Mrs. Adams and defendant, which did not relate or refer to Bauman; and the court sustained the objection to this portion of the conversation. Appellant insists that this part of the conversation should be admitted, as it was a part of the res gestæ of the difficulty. He says that if defendant had been permitted to testify in regard to what had been said between himself and Mrs. Adams at the time of the shooting he would have shown that the shooting was not provoked by anything said or done by him immediately before or at the time of the shooting, but on the contrary would have shown the relations between Mrs. Adams and Frank Bauman were of the very friendliest and intimate nature, and that Bauman shot at defendant without any provocation and without defendant knowing that he was present, because of the threatening words and conduct of Mrs. Adams towards defendant.

If appellant had stated that portion of the conversation which he desired to prove so that we might determine its relevancy and meaning, it would seem then we could consider the question presented in the light of the facts. As it is, he merely states that he wanted to prove the balance of the conversation, and he says that this would have shown that the shot was not provoked by anything said or done by him immediately before or at the time of the shooting, etc. This is a mere conclusion of appellant, and not the statement of facts, he was not permitted to prove. Unquestionably if the State proved a part of the conversation appellant was entitled to the balance, referring to the same subject. So far as we are advised, there is no statement of what this conversation was about. If appellant had set it out in the bill it might appear to be very material. On the other hand, it might appear to be absolutely frivolous and of no import. In the absence of a statement as to what this conversation was, we are not able to say that its exclusion operated to the injury of appellant.

In the next bill, appellant shows the testimony of Frank Bauman the prosecutor and Mrs. Adams, as to how the difficulty began, and who fired the first shot. The bill shows farther that appellant denied that he fired the first shot, and as stated in his testimony, the first shot was fired by prosecutor. Then it is shown that G.B. Adams testified that on the same evening, a little while after the difficulty, he came home from Belton, and Frank Bauman, the prosecutor, was at his house, and defendant came up to the house, some thirty or forty minutes after the shooting, and then made the statement to Frank Bauman: "I shot at you down at the creek, and you shot back at me, and I am going to kill you. I knocked the bark off the tree next to your head. You are one Dutchman I am going to kill. You shot back at me." That this was repeated a number of times by appellant who continuously cursed, abused and threatened Bauman, and told him he was going to kill him. Afterwards, while defendant was on the stand on his own behalf, he testified that he was at Adams at the time stated; that he came by there on his way from Smith's, where he went immediately after the shooting, not knowing that Bauman would be there, but he met Adams, Frank Bauman and Mrs. Adams all there; that he did not use any such language or make any such statements there about how the difficulty occurred as testified to by Adams. After this appellant proposed to prove that shortly after the shooting, some fifteen or twenty minutes thereafter, he went to the house of J.M. Smith, and told Smith how the difficulty occurred; that prosecutor shot at him first; that he was having a conversation with Mrs. Adams and he heard Frank Bauman say something, and as he looked around towards him Frank Bauman was shooting at him, and was in the act of reloading his gun, when defendant shot at him, Bauman was getting ready to shoot again. That this was what he had told him. That the next morning he also told one John Kolls the same thing. He proposed to prove by Smith and Kolls what he had told them. He insisted on his right to do this, in order to corroborate his own testimony, and to rebut the testimony of George Adams and Mrs. Adams. This was objected to on the part of the State on the ground that the same was self-serving; and the court sustained the objection. Appellant cites us to a number of authorities, among others, Campbell v. State, 35 Tex. Crim. 160; Goode v. State, 32 Tex.Crim. Rep.; Kimbell v. State, 32 Tex.Crim. Rep.. All of these cases are authority for the proposition that where appellant is put on the witness stand, and the State has impeached such witness by showing that he made a different statement to that testified to by him upon the point in issue, that it is competent for appellant in rebuttal to show that he made a similar statement to that testified to by him about the time of the transaction, in order to corroborate the witness. We do not understand in this particular case that the testimony offered by the State was for the purpose of impeachment. That is, it was original testimony showing a statement or confession coming from appellant himself as to how the difficulty occurred. It was not only a confession of appellant, but it appears to have been in the course of a conversation or altercation between prosecutor, and appellant, subsequent to the alleged offense that these witnesses testified about. We do not believe the rule of impeachment extends to this character of case. If so, whenever the State proves a confession or statement of appellant as to how a difficulty occurred, as original evidence against him, appellant would be authorized to introduce any number of witnesses to whom at other times he made different statements. We do not believe the court erred in rejecting this testimony.

Appellant also objects to the verdict of the jury because the same is not clear. We have examined the verdict, and it seems to us that the objection is not well taken. The verdict reads as follows: "We the jury find the defendant guilty of an aggravated assault on the person of Frank Bauman, and assess his punishment to a fine of $300." The use of the preposition "to" instead of "at a fine" does not vitiate the verdict.

There being no errors in the record, the judgment is affirmed.

Affirmed.