Hobbs v. State , 53 Tex. Crim. 71 ( 1908 )

The judgment of conviction in this case was affirmed at the late Dallas Term, and now comes before us on motion for rehearing filed by appellant on the 27th day of February, 1908, and since then taken under advisement.

There is one statement in the opinion in respect to a matter not mentioned in the motion for rehearing which is not strictly accurate. It is there stated: "This too, is the rule in the Supreme Court of the United States, where the question has often been considered. See

Mattox v. U.S. 237 and West v. Louisiana, 194 U.S. 258, and under the statutes similar to our own has been uniformly so held without a single dissent so far as an examination of the authorities go in any court of last resort in America." This is a correct statement of the rule where the testimony of deceased persons has been sought to be reproduced. The rule is not, however, so unanimous in cases where testimony has been sought to be reproduced where the witness was shown to be beyond the jurisdiction of the court. In the event of the absence only, there is a sharp division in the authorities as to the admissibility of such testimony. We do not think, however, that whether the witness is dead or beyond the jurisdiction of the court is a matter of controlling importance.

The only matter which we desire to discuss is the third ground of appellant's motion. It is as follows: "The court erred in its opinion in holding that the testimony of the witness Mrs. George Clair to the effect that on the day of the homicide the wife of appellant came to her house a short time before the homicide occurred, and after the appellant and Hence Watson and Oscar Leggett had left in search of the deceased and told the said witness, Mrs. Clair, that the appellant and Watson and Leggett had gone to look for deceased and if appellant found him she, the said Lula Hobbs, did not know what would happen because said testimony was clearly hearsay and a statement made in the absence of the defendant, if made at all, and was in effect compelling the wife to testify against the husband and was an impeachment of the wife upon an immaterial issue because the appellant had placed her upon the stand to prove only that the deceased had insulted her and that she had communicated the insult to her husband and no inquiry had been made of her by the appellant with reference to any statement she may have made to Mrs. Clair. The said holding was further erroneous because it involved an opinion of Mrs. Hobbs that something serious would happen if her husband should find the deceased and said statement, if made by Mrs. Hobbs, was not a statement of any fact but if the jury believed that she made said statement would only tend to convey the idea to the jury that Mrs. Hobbs was apprehensive of the result of a meeting between the appellant and the deceased; whereas, the only thing that could have been properly proved by Mrs. Hobbs or Mrs. Clair would be some statement that the defendant may have made which would have caused such apprehension upon the part of his wife." In the opinion rendered in the case it was stated: "The only matter about which we have had any doubt is the feature of her testimony (meaning Mrs. Hobbs) which is not so much discussed in the brief by counsel for appellant, and that is, her statement to the witness Mrs. Clair, in effect that her husband had gone to look for deceased and she did not know what would happen." We have concluded on fuller reflection and in the light of the authorities which have been presented and discussed in the motion for rehearing that we were in error in the original opinion wherein we said: "In any event, as presented in the record, it is not clear that the testimony was not admissible, and if it should be held that it was not admissible as a mere expression of opinion, it does not on its face, or by necessary implication disclose the statement of opinion as to what the appellant meant to do, and is, therefore, we believe, not material or hurtful, even if it be conceded that it should not have been admitted." It is also suggested in the opinion that if as defendant himself testified, his mission was to see the deceased to demand an explanation, this testimony might relate to the result of the explanation so given. A closer inspection of the record, however, makes it certain that we overlooked the important fact that there is no testimony showing that the appellant ever stated to his wife that he meant to seek or was seeking the deceased for the purpose of having such conference. It is sometimes difficult to tell in respect to inadmissible testimony what may or may not be injurious and hurtful. If when such testimony is admitted, considering it in one light it would be prejudicial and considering it in another it would be harmless, it would seem that the law which is ever jealous of the rights and liberties of her citizens, would scarcely justify or permit the admission of such testimony when it might be used improperly to the prejudice of the defendant. The case of Bluman v. State,33 Tex. Crim. 43, is very much like the case at bar. In that case the appellant had been indicted for arson. He had sought to show as a reason why he did not burn his store that he had placed therein the belongings of his wife, containing her wedding trousseau and solid silver presents, a few weeks before the fire and that all of these were burned. He made proof of this fact by his wife. On cross-examination she was asked the following question: "Did you not, at the hotel, on the night of the fire, after the fire had broken out, state that you had a presentiment that something is going to happen?" (Here the language is, "my husband has gone to seek deceased and I don't know what is going to happen"). Objection was made to this question and the answer sought to be adduced thereby, because the witness was appellant's wife and she had not been asked about these matters on direct examination. The objection being overruled, Mrs. Bluman answered, "I did so state." In passing on the matter the court say: "The cross-examination must be confined to the matter elicited by the direct examination. This is the settled rule. The State could have examined Mrs. Bluman fully as to the trunks, their contents, when they were placed in the store, etc., and if she had made other statements regarding these things this could have been shown. What relation or pertinency a presentiment which she may have had, bear to the testimony about the trunks, their contents, etc., we fail to perceive.

"The Attorney-General contends that this matter was also without injury. It was not germane to the testimony in chief, nor did it tend to contradict her evidence in any legitimate manner. It was therefore the State's evidence. She was made a State's witness, and her evidence was a part of the State's case just as if the State had introduced her, and proved by her that she had had a presentiment that something was going to happen, and that when the fire broke out she stated the fact that she had had such a presentiment. Can it be contended that the State had the right to prove these facts by the wife of defendant? Certainly not. For what purpose could, and perhaps did, the jury use this presentiment of the wife? The witness was the wife of defendant — a relation than which none can be closer or more confidential. While the house was burning she speaks of this presentiment. The jury interprets and applies it to the burning of the house. Was it in fact a presentiment, or had she been informed by her husband that the store was to burn? All people do not believe that there is such a thing as a presentiment. Those who do may not have believed this to have been such, because now closely connected with the burning of the store. For what purpose could the jury have used this matter? Evidently to prove that appellant had determined to burn, or have burned, his store and had directly or indirectly informed his wife of his intentions. The State certainly desired to use it for this purpose. There was no other possible use to which it could be applied. But it may be urged that Mrs. Bluman gave such an explanation of her presentiment as to eliminate from it all that which was pernicious. This proposition is correct, and should solve the question, injury vel non, against the appellant, but for one stubborn fact which can never be settled by this record — did the jury believe her explanation? We know not, nor does any other person know, save the jurors who tried the case." In the case of Hoover v. State, 35 Tex.Crim. Rep. following the Bluman case, the court says: "On cross-examination of a wife, who has testified as a witness for her husband, she can be interrogated only as to such matters as naturally spring out of, and appertain to, her examination in chief; and it is error to permit her to be cross-examined as to original matters, which may be used against or are prejudicial to her husband." In that case the defendant was charged with murder. There was a plea of insanity, the wife was introduced as a witness in his behalf. On direct examination she testified as to her husband's acts and conduct the night before the killing and as to his uneasiness and apprehensions of danger for about four weeks before the killing. On cross-examination the State, over the objection of defendant, proved by her that she knew defendant had shot one of the Sparks boys and that he and the Sparks had never made friends. In discussing the testimony adduced on cross-examination, the court say: "She (the wife) was introduced by appellant in his behalf, and testified as to his mental condition, and that he was in a state of apprehension or alarm for some time prior to the homicide. On cross-examination, over the objection of appellant, the State was permitted to prove that some years before this, appellant, her husband, had shot one of the Sparks boys, and that just previous thereto, he was in a similar condition of mind. We heretofore held that this evidence was germane to her testimony in chief, but on a more careful and thorough examination of the question, in the light of the authorities, we are of the opinion that we were in error. The rule is well established that the wife can be introduced on behalf of her husband, and that on cross-examination she can be interrogated only as to such matters as naturally spring out of and appertain to her examination in chief. This testimony did not spring out of, and was not germane to, the examination in chief. It was original evidence, and of a most damaging and material character. In fact it was producing in evidence before the jury against appellant, testimony of another and distinct crime than that for which he was then on trial. It was calculated to inflame the mind of the jury against appellant, and to prejudice his rights as to the case then on trial. We adhere to the rule heretofore laid down by this court in the case of Bluman v. State, 33 Tex.Crim. Rep.." See also Jones v. State, 38 Tex.Crim. Rep.; and Richards v. State, decided at the present, term; Gaines v. State, 38 Tex.Crim. Rep.. We think it fairly certain that the statement attributed to Mrs. Hobbs that her husband had gone to seek deceased and that she did not know what was going to happen, tended strongly to establish and convince the jury of apprehension on her part that something serious was to happen and was within itself, well calculated to impress the jury or justify the inference by them that appellant had made some statement to his wife showing preparation on his part to assault the deceased, or at least, that this inference was a reasonable deduction from the testimony.

Having carefully examined the authorities cited and others, we do not believe that we would be justified in permitting this judgment of affirmance to stand unless we were prepared to overrule the decisions of this tribunal in the Bluman case, in the Hoover case, in the Jones case, and in the Gaines case, cited above, nor are we, on reflection, prepared to say that the decision in the Bluman case, so strikingly like the one under consideration, is in itself, wrong. On the contrary, fuller consideration and more careful thought has led us to the conclusion that the Bluman case was rightly decided and that the court below should not have admitted the testimony of Mrs. Clair, herein complained of. For the error in so doing, it is ordered that appellant's motion for rehearing be granted and the judgment of conviction be set aside and the case be reversed and the cause remanded.

Reversed and remanded.

BROOKS, JUDGE, absent.