Willis v. State

It is contended that the court erred in permitting the state to impeach the witness Walter Clifford on a collateral and irrelevant matter over the objection and exception of plaintiff in error and to his substantial prejudice. The record on this question shows the following:

"Q. Do you know John Williams? A. Yes, sir. Q. Do you remember the circumstances of saying to John Williams after Ed Russell walked away with these two men that Green is just as good as a dead man; I know that fellow Willis, and he will kill him? A. Did I say that to John Williams? Q. Did you say that to John Williams? A. John Williams? Q. John Williams. A. No, for I don't talk to John Williams at all."

Over the objection and exception of the defendant, the Witness John Williams was permitted to give the following testimony:

"Q. Mr. Williams, I will ask you if near the entrance of the Mannford Hardware Store on the occasion of the row between Mr. Green and Mr. Willis, if Mr. Walter Clifford made the statement in your presence that Green is just as good as a dead man? A. Yes, sir. Q. (Continuing) `I know that fellow Willis, and he will kill him.'"

"Mr. McNeill: We object to that question as incompetent, irrelevant, and immaterial, not made in the presence of this defendant and not binding upon the defendant, not proper rebuttal testimony.

"The Court: Overruled.

"Mr. McNeill: Exception.

"Q. Did he make that statement? A. Yes, sir."

The court instructed the jury as follows:

"The court permitted the witness John F. Williams to testify in this case relative to a certain conversation had with Walter Clifford as follows: `Q. Mr. Williams, I will ask you if near the entrance of the Mannford Hardware Store on the occasion of the row between Mr. Green and Mr. Willis, if Mr. Walter Clifford made the statement in your presence that Green is just as good as a dead man; "I know that fellow Willis, and he will kill him." Did he make that statement? A. Yes, sir.' The court therefore charges you that the purpose of this question and answer was for the exclusive purpose of impeachment, and it is not to be considered by you for any other purpose in arriving at a verdict in this case, nor must you suffer or permit the same to prejudice you in the slightest degree or consider the same in connection with ascertaining the guilt or innocence of the defendant. If, however, you believe that said statement was made, then the same may be considered by you in testing the credibility of the evidence given by the said Walter Clifford, and must not be considered for any other purpose whatsoever in this case."

In the case of Payne v. State, 10 Okla. Cr. 314,136 P. 201, it was held:

"When a witness is cross-examined on a matter collateral to the issue, his answer is conclusive and cannot be subsequently contradicted by way of impeachment by the party putting the question."

It is thoroughly established in all jurisdictions that if a witness is permitted to answer an impeaching question on a collateral matter the party asking the question is bound by the answer given. So in this instance there can be no question that the matter inquired into of the witness Clifford was purely collateral. The state, therefore, was bound by his answer, and it was error for the trial court to permit him to be impeached upon that issue. Not only was it error to permit the witness Clifford to be impeached upon this issue, but the fact that the trial court instructed the jury that it was an issue upon which the witness could be impeached was also erroneous. In the case ofDrake v. State, 29 Tex. App. 265 [29 Tex.Crim. 265], 15 S.W. 725, the Supreme Court of Texas, in passing upon a question almost identical with this, said:

"James Drake, Jr., a witness who testified in behalf of the defendant, was asked upon cross-examination the following question: `On the evening or night of August 27, 1887, the day Guinn was shot by your father, at or near the store of Charles Rast, on Austin street in the city of Waco, Tex., and in the presence of Hugo Robinson, Street Bacon, Bob Fleming, and Todd Zeigler, did you not say that you knew your father was going to kill Guinn before you left your father's house that morning?' The witness answered that he had not made any such statement. Thereafter the state proved by Hugo Robinson, Street Bacon, Bob Fleming, and Todd Zeigler that the witness James Drake, Jr., did make the statement set forth in the question, in their presence, at the place and time specified in said question. Defendant objected to the question, and objected to the testimony of the witnesses Robinson, Bacon, Fleming, and Zeigler. His objections to the question, briefly stated, were that if the witness Drake had made such statement it was a mere opinion, was not admissible against the defendant, was criminative evidence, and that the question was not permissible for the purpose of laying a predicate to impeach the witness Drake because it related to a matter collateral to the main issue, and called for a statement which, if made, was a mere opinion of the witness. The objection made to the impeaching testimony was that it related to a matter collateral to the main issue; a matter of opinion, and not of fact. It cannot be questioned that the statement which the witnesses Robinson, Bacon, Fleming, and Zeigler testified was made by the witness Drake was inadmissible as criminative evidence against the defendant. It was not introduced or admitted as criminative evidence, but for the sole purpose of impeaching the credibility of the witness Drake, Jr., and the jury was plainly and emphatically instructed in the charge of the court as to the purpose for which said testimony was admitted, and that it could not be considered for any other purpose. Drake v. State, 25 Tex. App. 293[25 Tex.Crim. 293], 7 S.W. 868. Was it competent to impeach the witness Drake, Jr., in the manner permitted? This same testimony was before this court on the former appeal, but it does not appear from the report of the case that it was objected to on the trial. We presume that the objections now presented to it were not presented on the former appeal, as we find no reference in the opinion to any objection. Our former opinion, therefore, does not answer the question above propounded, and we are now called upon to consider and answer it. `When a witness is cross-examined on a matter collateral to the issue his answer cannot be subsequently contradicted by the party putting the question.' Nor is it proper to allow a witness to be cross-examined as to any matter which is collateral and irrelevant to the issue merely for the purpose of contradicting him by other evidence. Whart. Crim. Ev. (9th Ed.), sec. 484;Rainey v. State, 20 Tex. App. 473 [20 Tex.Crim. 473]; Hart v. State, 15 Tex. App. 202[15 Tex.Crim. 202] [49 Am. Rep. 188];Johnson v. State, 22 Tex. App. 206 [22 Tex.Crim. 206], 2 S.W. 609;Brite v. State, 10 Tex. App. 368 [10 Tex.Crim. 368]; Stevens v. State, 7 Tex. App. 39[7 Tex.Crim. 39]. What is collateral and irrelevant matter within the rules above stated? In his work on Criminal Evidence (9th Ed., sec. 484) Mr. Wharton, quoting from the opinion in Hildeburn v. Curran, 65 Pa. 63, says: `The test of whether a fact inquired of in cross-examinations is collateral is this: Would the cross-examining party be entitled to prove it as a part of this case tending to establish his plea? This test has been quoted and adopted by this court in Hart v. State, 15 Tex. App. 202[15 Tex.Crim. 202] [49 Am. Rep. 188], and in Johnson v. State, 22 Tex. App. 206[22 Tex.Crim. 206], 2 S.W. 609. Having this plain and approved test, it only remains for us to apply it correctly to the impeachment of the witness Drake, Jr., as permitted in this case, and thereby ascertain whether or not that impeachment was legal.

"What was the fact inquired about? A statement made by the witness Drake, Jr., that he knew that his father (the defendant) was going to kill Guinn (the deceased) before he (the witness) left home that morning — the morning of the day of the homicide. Would the state have been entitled to prove as a part of its case by the witness Drake, Jr., or by other evidence, that said witness knew on the morning of and prior to the homicide that his father intended to kill the deceased? Could such knowledge of the witness be considered a fact, and a relevant, material fact? Suppose the witness Drake, Jr., while upon the stand had been asked by either party the question: `What was defendant's intention towards the deceased before you left home on the morning of and prior to the homicide? Would such a question, if objected to upon the ground that it called for the opinion or conclusion of the witness, and not for facts, have been allowed by the court? We do not think the question would have been legitimate and permissible. How could the witness know as a fact of the intention of the defendant? That a certain intent existed is a conclusion deduced from facts; from the words and conduct of the individual to whom the intent is imputed. It is for the jury, and not * * * the witness, to deduce the conclusion, and that they may do this the witness must state the facts from which the conclusion as to the intent is sought to be deduced. Upon the facts the conclusion deduced by a jury as to intent might be the very opposite of that reached by the witness. Suppose counsel for the state on cross-examination had asked the witness Drake, Jr., the question, `Did you know on the morning of and prior to the homicide that the defendant was going to kill the deceased?' would the question have been legitimate? We think it would not have been. It was calculated to elicit from the witness his conclusion merely, his conclusion as to the intention of the defendant. How could the witness know that defendant was going to kill the deceased? He could not know it. He could merely conclude that it was the defendant's intention to do the act, and this conclusion he would deduce from facts within his knowledge. An affirmative answer to the question would not be evidence of a fact, but merely the opinion of the witness as to the intention of the defendant. Knowledge of what the defendant was going to do could be nothing more than the witness' opinion or conclusion deduced from the words and acts of the defendant. Such knowledge is not a fact. If the question had been, `Did the defendant on the morning of and prior to the homicide tell you that he was going to kill the deceased?' it would have been legitimate. It would have been an inquiry for a fact; a fact relevant and material to the main issue; a fact which the state would have been entitled to prove as a part of its case. If in laying the predicate to impeach the witness Drake, Jr., he had been asked, `Did you not state in the presence of Hugo Robinson, Street Bacon, Bob Fleming, and Todd Zeigler, on the evening or night of August 27, 1887, the day that Guinn was shot by your father, and at or near the store of Chas. Rast, in Waco, that your father told you on that morning before the homicide that he was going to kill Guinn?' the question would have been proper, would have been as to a fact relevant and material to the main issue; a fact with respect to which the witness could be impeached by proving that he did make such statement. And so of any other fact of like character. As we have before stated, we regard the matter about which the witness Drake, Jr., was contradicted as a matter of opinion merely, a conclusion of the witness, and not a fact. Opinions of witnesses, as a general rule, are not admissible in evidence. Witnesses must be confined to a statement of the facts within their knowledge, from which facts the jury are to deduce their own conclusion. Wilson Crim. St., sec. 2502. There are well-established exceptions to this general rule. One of these exceptions is where the facts from which the opinion proceeds as an effect are of a character that they cannot be so detailed and presented to the minds of a jury as to impart to them the knowledge which the witness actually possesses. Whenever a condition of things is such that it cannot be reproduced and made palpable in the concrete to the jury, or when language is not adequate to such realization, then the witness may describe it by its effect upon his mind, even though such effect be opinion. Powers v. State, 23 Tex. App. 42 [23 Tex.Crim. 42], 5 S.W. 153. But the opinion or conclusion of the witness Drake, Jr., as to the intention and purpose of the defendant to kill the deceased, cannot be brought within this or any other exception to the general rule."

See, also, Wilson v. State, 37 Tex.Crim. 64, 38 S.W. 610;Morton v. State, 43 Tex.Crim. 533, 67 S.W. 115; State v. Dunn,53 Or. 304, 99 P. 278, 100 P. 258; Parker v. State,46 Tex.Crim. 461, 80 S.W. 1008, 108 Am. St. Rep. 1021, 3 Ann. Cas. 893;Justice v. Commonwealth (Ky.) 46 S.W. 499.

Was the admission of this testimony injurious? Clearly so. The witness Walter Clifford was one of the main witnesses for the defendant in this case. He had known the defendant for a number of years, even prior to the time when he moved to that community. The fact that Clifford was intimately acquainted with the defendant, had known him for so long a time, would necessarily impress the jury with the fact, if it were true, that Clifford believed old man Willis to be a dangerous and desperate man, although he had testified in his favor, and as to his general good reputation for peace and quietude in that community. Also, in view of the fact that the court instructed the jury that the witness Clifford might be impeached by testimony of this kind, the jury would naturally conclude that having been impeached by such testimony he could not be believed in any statement that he had made. The instruction, therefore, was very prejudicial. The impeachment of the witness should not have been permitted. In view of the fact that this is a close case, in which the testimony for the defendant clearly makes out a case of self-defense, and in which a former jury was unable to agree, this court is impressed with the fact that this testimony must have had considerable influence upon the jury in reaching a verdict of guilty. We believe it is our plain duty, therefore, to reverse this judgment of conviction upon this ground alone.

Other errors are complained of, but they are either lacking in merit or are such as are not likely to arise upon a retrial of the case. We deem it unnecessary, therefore, in view of the conclusion that we have herein reached, to pass upon them.

The judgment is reversed, and the cause remanded for a new trial.

DOYLE, P.J., and ARMSTRONG, J., concur.