Mauney v. State , 85 Tex. Crim. 184 ( 1919 )

In this case the appellant was charged by indictment in the District Court of Hopkins County with the offense of murder, which, upon trial, was by the jury reduced to manslaughter, of which she was convicted and her punishment fixed at confinement in the penitentiary for five years.

Appellant took thirty-five bills of exceptions during the course of the trial, a number of which do not appear in the record by written and filed agreement by counsel. We shall notice all those which we deem of sufficient importance.

By her bill of exceptions No. 2 appellant seeks a review of the trial court's action in permitting the witness Easley, for the State, to tell what the sister of the appellant, Miss Allie Lee Mauney, said the evening before the killing, the objection being that it was the act and statement of another party not shown to be ratified by the appellant, but disaffirmed by her. We see no error in the ruling as the same appears in the record. The witness Easley testified that appellant had 'phoned him to come to where she and her sister were on the second day before the killing but that he told her he could not come until the next day, and accordingly he met the two women on the evening before the killing. Appellant then told Easley at length of the acts, statements and conduct of deceased in watching and following the witness' car and appellant's car and having others to watch and follow them. During the conversation Allie Lee Mauney spoke up and said that he had been following her (which her is not very clear), and stated that "if he did not cut it out — she would shoot his G__D — off." It appears that appellant then said never mind, that was her affair and she would see to it herself.

Reference to the statement of facts for the surroundings discloses that witness had told "them" that he would not do anything with it and that Miss Maude (appellant) said that she would attend to it herself, directly after the statement by Allie Lee which is here objected to. This was about sundown before the killing the next morning. The statements of Allie Lee so made are admissible to explain and make clear what appellant meant when she made the threatening statements attributed to her. It seems clear that if one person threaten to shoot another and the accused being present and hearing the threat, says, "Never mind, that is my affair and I will see to it," and very soon thereafter herself shoots such party that both her statement and that of the other person, explanatory and antecedent to hers will be admissible.

Appellant's bill No. 7 cannot be considered for several reasons. It consists of about ten questions and their answers, followed by the statement that said evidence at the time it was offered was objected to because it was irrelevant, immaterial, incompetent and prejudicial. No surrounding facts are stated; and no reason given why the same falls under any of these general heads of objection. This court holds that "incompetent and irrelevant" is without meaning and indefinite. Pangburn v. State, 56 S.W. Rep., 72; also that "irrelevant and prejudicial," is too general to be considered, Wilson v. State, 63 Tex. Crim. 81; also "irrelevant and immaterial" is too general to be considered. Jones v. State, 65 Tex.Crim. Rep., 144 S.W. Rep., 252. For these reasons this bill cannot be considered, and we note the same defects obtain as to appellant's bills Nos. 9, 10, 13, 15, 16, 17, 24 and 25, none of which will be further considered.

Bill of exceptions No. 12 complains of the action of the trial court in permitting the prosecution to ask Allie Lee Mauney, the sister of appellant, if it was not a fact that she and her father and the appellant had no intention of pleading insanity until after the examining trial, after the best people of that county had come there and testified that the reputation of appellant and witness were bad for virtue and chastity, "and you thought your plea of insult to a female relative was broken down, then you decided to put in the insanity plea." To which the witness answered: "I knew it at the examining trial; I knew it just as soon as we employed our lawyer." The objection, as stated, to both question and answer, is that the same is argumentative, prejudicial, called for a conclusion of the attorney, invades the province of the jury. Neither the question nor answer invade the province of the jury, nor does the same call for a conclusion of the attorney, and to say that the same is argumentative and prejudicial is merely a general and indefinite statement which presents nothing that we can consider.

Bill of exceptions No. 14 presents no error. Several different questions were asked and when objection was made the same were not pressed to answer, and the only questions permitted by the court to be answered were, whether the witness Jack Mauney was under the rule, to which he answered, he did not think so, and the further question if he was not present when the examining trial was had, to which witness answered that he was. This court has held many times that when the bill of exceptions only shows questions and omits the answers the matter will not be considered. Hatzfeld v. Walsh, 120 S.W. Rep., 525; Clark v. State, 67 Tex.Crim. Rep., 148 S.W. Rep., 801. The two questions which were answered as shown by this bill present no possible objection.

Bill of exceptions No. 15 states a number of questions and answers, with a general statement of the objection thereto but without any connecting statement of any fact or facts in the case.

The bill is entirely too general for consideration. Howard v. State, 65 Tex.Crim. Rep., 143 S.W. Rep., 178.

Bill of exceptions No. 18 sets out a page of questions and answers to the witness Dr. Holbrook, with the statement that the appellant objected to the question as propounded. We are wholly uninformed as to which question the objection is aimed at and find nothing of error in the bill.

Bill of exceptions No. 19 complains that in the hypothetical case stated by the prosecuting attorney to the appellant's witness, Dr. Holbrook, it was incorrectly stated to said witness that "immediately after she came back, after she had fired the fatal shot, she made the statement, as testified to by Allie Lee or Fred, that she had killed Will Bridges." To which statement by the prosecution objection was made that no such testimony was in the record, and that no witness had so testified. While this was very indefinite, we took the trouble to look through the testimony of Fred Mauney, as set out in the statement of facts and observe that on page 96 thereof said witness stated "She came back and gave me the gun . . . She called up the sheriff and just said to the sheriff that she had killed Will Bridges." It thus appears that the hypothetical question was correct and no error is shown.

Bill of exceptions No. 20 complains that the State's attorney was permitted to "take the witness from defendant's counsel." Examination of the same disclosse that the court allowed the prosecuting attorney to make the preliminary test of the witness who was offered on the question of the general reputation of the deceased. No abuse of the court's discretion in such matters is shown.

Bill of exceptions No. 21 quotes at length from a hypothetical case stated by Dr. Gregory, and after finishing the quotation from the question, states that counsel objected to the same because "it did not conform to the statutes of Texas, nor to the rules of the courts." No statute or rule is pointed out to us as having been violated. The bill is wholly insufficient.

Bill of exceptions No. 22 objects to the testimony of Luther Romine, the objection, as stated, being that the "proper predicate had not been laid." This is not a statement of any fact showing why the evidence is objectionable and is not sufficient to call for our review. Douglas v. State, 67 Tex. Crim. 431, 148 S.W. Rep., 1088.

No error appears in bill No. 26, and bill No. 27 consists of several pages of questions and answers and concludes with the statement that after this evidence had been introduced defendant's counsel moved the court to exclude all the testimony of the witness as to what was said by the defendant at the time and from the time of the arrival of the officers because she was in the custody of the law and had not been warned, etc. A bill of exceptions setting out numerous question and answers with a general objection to the whole, or a general motion not specific in its statement, such as this here, do not conform to the requisites and should not be considered. Boyd v. State,72 Tex. Crim. 521, Link v. State, 73 Tex.Crim. Rep., 164 S.W. Rep., 987. The bill if in proper condition otherwise, wholly fails to set out any fact or facts which makes the evidence inadmissible, and does not specify or make plain any particular matter complained of as being in the testimony of appellant.

Bills of exceptions Nos. 28 and 29 complain of the argument of the special prosecutor. Language such as used by him in his statement that "if the jury, under the evidence in this case, cannot convict the defendant, they might as well tear down the courthouse," and further statement that if she was convicted they would have the right to go to the Governor and ask him to exercise his pardoning power, is not such as to demand a reversal of the case under the authorities. No written charge was presented by the appellant asking that the jury be instructed not to consider same. The court did then and there verbally instruct the jury not to consider such statements of said prosecuting attorney. Hatchell v. State, 84 S.W. Rep., 234; Pemberton v. State, 55 Tex.Crim. Rep., 117 S.W. Rep., 837; Paschall v. State, 62 Tex.Crim. Rep., 138 S.W. Rep., 759.

Bill No. 31 raises the question of misconduct on the part of the jury, based on the fact that one juror, talked frequently with his wife during the trial of the case without the permission of the court, and in violation of article 748, C.C.P. The language of this article plainly forbids any one being with the jury while they are deliberating on a case and from communicating with a juror after he has been impanelled except in the presence and by permission of the court, in a felony case; and the officers in charge of juries should be vigilant and careful to see that the provisions of this statute are carefully observed and that our trials are free from criticism and are conducted according to law. The trial court before passing upon this matter, heard evidence pro and con bearing on the matter set up in this bill and concluded that the matter did not constitute such error as to justify the granting of a new trial. The juror testified that his wife discussed with him only matters concerning the home and the farm and that she did not mention the case on trial in any way. She testified to the same facts. The sheriff also testified that he heard part of some of the conversations and that it was about the business at home. We feel that this statutory provision is a wise and just one and that the interests of both the State and the accused in a fair trial are so great as to demand of officers and jurors an observance of its requirements. Not only should the appearance of evil be avoided by strict observance of this statutory rule forbidding communications with the jury when the court is not present, but the further fact is true that human nature is frail and prone to excuse itself, and it is easily possible to conceive a case where the party conversing with a juror, as well as the juror himself, fearful of punishment for contempt, might not remember all that passed at such conversations and might deny mention of the case between them by virtue of a convenient memory. We think the rule in cases of a violation of the provisions of article 748, ought to be that injury in such case is presumed unless the contrary is made to appear to the satisfaction of the court; the trial court primarily, and ultimately this court. Any presumption can be overcome by evidence and in such case of presumptive injury the burden ought to be on the State to satisfy the court that no injury has resulted from such violation of the statute. In the instant case, we think the presumption of injury was met and overcome by the evidence showing what the conversations were, and that no fact bearing on the case was discussed between the juror and his wife. We observe, however, for the benefit of all parties that article 749, C.C.P., expressly embraces in a contempt proceeding, the juror and offending person who violates the sacred rights of both the State and the accused; certainly the trial court should strictly enforce these safeguarding statutes. Sheriffs and deputies who wilfully or negligently disregard them should be held to the same strict account as jurors and outside offenders.

Bills of exceptions Nos. 32 and 33 relate to supposed errors in the charge as to what facts would reduce an unlawful killing to manslaughter, but inasmuch as appellant was only convicted of this grade of homicide no error appears.

There was no error in refusing special charge on self-defense, which was substantially the same as the special charge on that subject given at the request of appellant. We confess ourselves unable to find any facts in this record bearing out any theory of self-defense, even had the trial court refused both special charges asked on this subject.

Appellant complains of the verdict as being against the weight of the evidence on the defense of insanity, and asks a reversal for that reason. We do not think this court should reverse cases where the evidence is merely conflicting, and where the defense of insanity is interposed and the doctors placed on the stand by the accused make their statements that she was insane at the moment of the shooting, expressly and repeatedly dependent on the truth of what appellant swore as to her inability to remember the immediate facts of the killing, and further when the accused takes the stand and testifies in detail to all that occurred up to the moment of the shooting and what occurred after the shooting, and says that she is unable to remember only what occurred at the time of the same, and when other witnesses, whose testimony was apparently reliable, state that she is sane, we do not feel it proper to disturb the verdict.

We have gone through this record carefully and repeatedly, not content with a general statement as to a large number of the bills of exceptions that they were not sufficient to demand our review. Each has been carefully scrutinized and finding no reversible error the judgment of the lower court is affirmed.

Affirmed.

ON REHEARING. April 16, 1919.