Smith v. State , 105 Tex. Crim. 327 ( 1926 )

The appellant was convicted of murder in the District Court of Bosque County, and his punishment assessed at 50 years in the penitentiary.

The appellant was indicted for killing Dr. J. Owen Carpenter, by shooting him with a pistol, about the 13th day of May, 1925. It was the contention of the state that the homicide was committed with malice and without provocation upon the part of the deceased, and upon a pretended and fancied grievance that the deceased had informed appellant's wife of his, appellant's, conduct and escapades with other women. It was the contention of the appellant that the deceased was guilty of improper conduct toward his wife; that the deceased, while visiting appellant's home professionally in his absence, attempted to kiss and fondle his wife, over her protests, and that on one occasion deceased threw her across the bed and sought to have intercourse with her by force, which she prevented by fighting him off. When his wife informed him of deceased's conduct, appellant's mind, according to his contention, was greatly agitated, enraged and incapable of cool reflection, and he took deceased in his automobile to his home and had deceased face his wife for the purpose of apologizing to her for said conduct. Upon reaching appellant's home, and his wife appearing in the presence of deceased, the latter denied any such conduct and insisted that appellant's wife state to him, appellant, that no such conduct occurred. Appellant's wife, according to his contention, there reaffirmed that what she had told him, appellant, was true, whereupon deceased again denied same, and was making a move in the direction of appellant, in a threatening manner, when the latter, in a passion of rage and resentment and under the belief that the deceased was then preparing to attack him or do him some serious injury, shot and killed him.

The record contains 28 bills of exception. In bill No. 1 complaint is made to the action of the court in refusing to grant appellant's application for a continuance in order that he might obtain the testimony of the witnesses, Simmons, Thomas, Matson and Combs. It appears from the record that Combs drove the deceased and the appellant, at the latter's request, in an automobile to appellant's home just before the homicide, and was indicted for the same offense for which the appellant was convicted, and was a fugitive from justice at the time of the trial. It further appears that the witness, Matson, appeared upon the trial before it was concluded, but was not used as a witness in the case. This leaves the question of the continuance to be considered only in connection with the alleged testimony of the witnesses, Simmons and Thomas. The application for a continuance shows that both of these witnesses resided in the town where the homicide was committed and in the county of the trial; that the indictment was returned into court on September 21, 1925; that the case was set down for trial on said date for September 30, 1925; that on September 22, 1925, subpoenas were issued for said witnesses, which subpoenas were returned into court by the sheriff on the 28th of September, showing that Simmons had "run away" and that Thomas was "not known." It is alleged in said application that the appellant expected to prove by said witnesses that he, appellant, had informed them between Sunday night, the day upon which he claimed his wife informed him fully concerning the deceased's conduct, and Wednesday following, the day of the homicide, of said insulting conduct and acts of the deceased toward his wife, and that at said time, he, appellant, was greatly agitated, excited and nervous, and that the witness, Simmons, advised him not to kill deceased, but to make him apologize to his wife for said conduct. The record further discloses that the court charged the jury six days after the motion for continuance was overruled, and that four days later the motion for a new trial was overruled. The attorneys representing the state contested the application for continuance, and contend before this court that the trial court was not in error in overruling same because the appellant did not use proper diligence, in seeking to have said witnesses subpoenaed or located after the process was returned into court showing that they had not been served, during the trial or up to the time of overruling the motion for a new trial, nor did appellant attempt to show, during said time, any probability of ever obtaining said testimony or locating said witnesses. In support of this contention the state cites the case of Marta v. State, 193 S.W. 326, which seems to bear out the state's contention. In this court it is presumed that the ruling of the trial court in such matters is correct, unless the contrary is made to appear, and in this instance, from the record as presented, we are unable to conclude that the action of the court on this application was erroneous.

In bill of exceptions No. 2 complaint is made to the refusal of the court to permit the witness, Price, to testify that on Sunday night, prior to the homicide on Wednesday, the appellant told the witness that he intended to see the deceased and make deceased apologize to him and to his wife for said conduct. The state objected to this testimony upon the ground that it was self serving, and we are of the opinion that the bill, as presented, shows no error in the ruling of the court thereon.

Bill No. 3 complains of the action of the court, after the witness, Price, had testified to a conversation with the appellant on Sunday night, as above mentioned, and to the appellant's stating at said time, referring to the deceased, "The damned rascal is now sitting across the street in his car, he and Frank Fallis," in permitting the state to ask the witness, on cross examination, and have him testify that he did not see anything that would have kept appellant from making an attack on the deceased at that time. Appellant contends that said testimony involved a conclusion of the witness. We think this objection went more to the weight than to the admissibility of this testimony.

Complaint is made in bill No. 4 to the action of the court in permitting the state, on cross examination of appellant's wife, to interrogate her and have her testify to conversations between her and Mrs. Fort about two weeks prior to the homicide relative to some letters which she had obtained from her husband's pocket and which involved some other women, and to question her concerning a conversation which she had with the deceased about her husband's relations with other women, and concerning the deceased's treatment of her, and to an alleged conversation to the effect that her husband had told her that the deceased was telling her things about his, appellant's, conduct with other women in order to "get in with her," or for the purpose of insulting her, and to the state asking her if she did not state to Mrs. Fort that the deceased had always acted as a gentleman toward her and had never insulted her, and also if she didn't tell Mrs. Fort that her husband was going to kill deceased. This testimony was objected to by the appellant upon the ground that it was making his wife a witness against him on matters not brought out in chief. We are of the opinion that there was no error in the admission of this testimony, or laying the predicate for impeachment purposes of the appellant's wife. The appellant had introduced his wife as a witness in his behalf and she had testified to the undue familiarity of the deceased with her and his attempt to have intercourse with her, and to the deceased having told her about appellant's conduct with other women, and we think this testimony was clearly admissible upon the part of the state to show by this witness, on cross examination, if it could, that what she had testified to in chief as to the conduct of the deceased and what she had told her husband was not true, and we think said testimony was legitimate for that purpose and was germane to the testimony given by her in chief, and she, having voluntarily taken the stand as a witness in behalf of her husband, was subject to impeachment the same as any other witness. Branch's Ann. P. C., Secs. 152 and 153, citing Exon v. State, 33 Tex.Crim. Rep., 26 S.W. 1088; Brown v. State, 61 Tex.Crim. Rep., 136 S.W. 265; Taylor v. State, 167 S.W. 59, and many other authorities.

By bills of exception Nos. 8 and 9 the appellant complains of the action of the court in permitting the state to prove by the witness, Mrs. Fort, that appellant's wife, a few days before the homicide, told her that she had letters which she had obtained from the pocket of her husband, without her husband's knowledge, and that said letters pertained to his association with other women, and that she knew that the deceased knew something about appellant's conduct with women and was going to make him tell her about it, and to the said witness, Mrs. Fort, testifying that in one conversation with appellant's wife she stated to the witness that her husband had told her that the deceased was just trying to "get on the good side of her" so he could mistreat her, and that she, appellant's wife, informed the witness that the deceased had always been a perfect gentleman toward her and had never insulted her, and told her that the appellant was going to kill the deceased on account of deceased having told her of appellant's conduct with other women, mentioning a certain woman in that connection, to all of which testimony appellant's counsel objected upon the ground that it was hearsay, and that same was beyond the scope of the proper cross examination on the testimony of defendant's wife in chief, and was making his wife a witness against him, and was not a proper basis for impeachment. We are of the opinion that this testimony was proper for impeachment purposes. Bell v. State, 85 Tex.Crim. Rep.; 213 S.W. 648; Eason v. State, 89 Tex.Crim. Rep., 232 S.W. 300.

In bill of exceptions No. 5 complaint is made to the refusal of the court to permit the appellant to testify to what he had heard and what the deceased had told him relative to deceased's improper relations with women. This testimony was excluded, upon objection by the state, because same involved specific acts of alleged lewdness upon the part of deceased. We think there was no error in excluding said testimony of specific acts. See Spannell v. State, 83 Tex.Crim. Rep.,203 S.W. 357; Bozeman v. State, 215 S.W. 319.

Bill No. 7 complains of the action of the court in permitting the state to prove by the appellant, on cross examination, that he and one Schow were out at the park with some girls, and as to appellant's meeting a certain widow at a dance and taking her back to her home at McGregor, and also to the court's action in permitting the state, as shown in bill of exceptions No. 11, as rebuttal evidence to show by the witness, Nelson, that he saw appellant one night with a woman who was not his wife in his lap, while she was in an intoxicated condition, it being urged by the appellant that said testimony was prejudicial and was an attempt to prove other and different offenses, and that the court committed reversible error in allowing the state to introduce same to the jury. We think this testimony was admissible, and especially in rebuttal of the contention of the appellant as to his enraged condition of mind by reason of deceased having informed his wife as to his conduct with other women, and to his having been surprised at his wife asking him questions concerning his conduct in connection therewith. If what his wife had been informed about his conduct with other women was true, and the appellant contended that his mind became so enraged over the deceased having informed his wife of such conduct, then it was clearly admissible for the state to show, if it could, the truthfulness of said conduct. Redmond v. State, 108 S.W. 365; Teague v. State, 148 S.W. 1063; Parker v. State, 216 S.W. 178; Broussard v. State, 271 S.W. 385.

Bill No. 13 complains of the remarks of one of the attorneys representing the state to the effect that Jack Combs was implicated and indicted for the same offense as appellant. It appears that this statement was made while arguing a question of testimony before the court in the presence of the jury, and upon objection being raised thereto by the appellant, the court promptly instructed the jury to disregard said remarks. This bill as presented, we think, shows no reversible error.

Bill No. 12 complains of the action of the court in permitting the state's witnesses to show that after the homicide they found the pistol of deceased in his office. This testimony was offered by the state evidently in rebuttal of the appellant's testimony to the effect that at the time he shot the deceased he thought the deceased was armed and was preparing to draw a pistol. We think this evidence was admissible for the purpose indicated, as shown by this bill.

Bills 14 to 28, inclusive, complain of the refusal of the court to give appellant's special charges. We have carefully examined these charges and have reached the conclusion that there is no error shown in the ruling of the court, in view of the fact that the court's general charge and special charge No. 16, given at the request of the appellant, properly cover, we think, all phases of the law raised by the testimony.

After a careful examination of this voluminous record and the exhaustive brief filed by the appellant, we have reached the conclusion that there is no reversible error shown in the trial of this case, and that the judgment of the trial court should be affirmed, and it is accordingly so ordered.

Affirmed.

The foregoing opinion by the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

ON MOTION FOR REHEARING.