Kunde v. State

Willson, Judge.

I. Defendant’s first and second.bills of exception will be considered together. It is well settled that an indictment against the defendant, charging him with a separate offense from the one for which he is on trial, may be introduced in evidence against him when such indictment tends, even in a remote degree, to show a motive on the part of the defendant to commit the crime for which he is on trial. (Rucker v. The State, 7 Texas Ct. App., 549; Taylor v. The State, 14 Texas Ct. App., 346; Hart v. The State, 15 Texas Ct. App., 227; Robinson v. The State, 16 Texas Ct. App., 347.) It is, however, contended by counsel for defendant that the indictments read in evidence in this case were not admissible for any purpose, because they were not presented against defendant until subsequent to the date of the murder of Drennon. This would be an insuperable objection if the said indictments were not connected by other testimony with transactions which occurred before the murder, and which tended to show ifiotive on the part of defendant to commit the murder. It was shown by the reproduced testimony of the deceased witness, Moore, who was a justice of the peace, that shortly prior to the murder of Drennon, some of the Kunde family were prosecuted before him in relation to hogs belonging to Drennon, and that there was also a prosecution before him against two of the Kunde family for perjury, in which said Drennon was an important and indispensable witness. This evidence shows that some of the Kunde family were charged with some offense relating to Drennon’s hogs shortly before Drennon was murdered. It is presumptively shown by the indictment read in evidence that one of the members of the Kunde family who was thus accused was the defendant, Julius Kunde, and that he was charged with willfully and maliciously killing hogs belonging to said Drennon, and the offenses are charged in the indictment to have been committed at a date prior to the murder of Drennon. We are of the opinion that the testimony of Moore was admissible to prove motive, although such testimony is very meagre and indefinite, and that this testimony rendered admissible the indictment in order to explain that defendant was one of the Kunde family, who had been charged before the murder with an offense in relation to deceased’s hogs. We think the objections made to this evidence reach only to its weight and not to its admissibility.

Another question presented by the second bill of exception is the correctness of the ruling of the court refusing to permit defendant to read in evidence the balance of the reproduced testimony of the witness, Moore, the State having read in evidence only a part of said testimony, which testimony was in writing, being the testimony delivered by said witness on the trial of this cause upon habeas corpus. Counsel for defendant contend that, as a part of said testimony had been read in evidence, defendant was entitled to have the entire testimony read in evidence, under the provisions of Article 751 of the Code of Criminal Procedure. That article reads: “When part of an act, declaration, conversation or writing is given in evidence by one party, the whole on the same subject may be inquired into by the other; as, when a letter is read, all other letters on the same subject between the same parties may be given. And when a detailed act, declaration, conversation or writing is given in evidence, any other act, declaration or writing which is necessary to make it fully understood, or to explain the same, may also be given in evidence.

That portion of the testimony of Moore which was read in evidence by the State related to prosecutions against some of the Kunde family. That portion of said testimony which defendant proposed to read related to prosecutions against the deceased Drennon. It is obvious that the portion of said testimony offered to be read by defendant had no relation whatever bo that portion read by the State—was not necessary to make the portion read fully understood, nor did it any way explain the same. It was clearly inadmissible by virtue of the article of the code quoted, and it was not admissible under any rule of evidence.

II. It was error to refuse to permit the defendant to reproduce the testimony of the deceased witness, E. T. Rhodes. By this testimony defendant proposed to show acts and declarations on the part of his co-defendant, Taylor Kunde, occuring shortly prior to the murder, which said acts and declarations tended strongly to show malice on the part of Taylor Kunde towards Drennon, and a motive on his part to commit the murder. It was shown by other evidence in the case that Taylor Kunde was near the place of the murder at the time it occurred, and had equal opportunity with defendant to commit the murder. Also, that on the night of the homicide said Taylor Kunde furnished two Mexicans with a double barreled shot gun each, that said Mexicans left said Kunde’s house that night, before the murder, carrying said guns with them, and that they did not return with said suns until the next morning, and that one barrel of each of said guns then appeared to have been recently discharged.

We presume that the learned trial judge rejected the proposed testimony upon the authority of Bowen v. The State, 3 Texas Court of Appeals, 617; Boothe v. The State, 4 Texas Court of Appeals, 202; Walker v. The State, 6 Texas Court of Appeals, 576 ; Holt v. The State, 9 Texas Court of Appeals, 571; and perhaps some other early decisions made by this court. The doctrine of these cases, in the broad terms therein announced, while perhaps sustained by the weight of authority, at the time the decisions were made, is no longer the doctrine recognized by this court, and by what we consider the weight of authority of the present day. That is, the rule announced in those cases has been qualified and very much modified by recent decisions, and is not the rule which now obtains. (Dubose v. The State, 10 Texas Ct. App., 230; Hart v. The State, 15 Texas Ct. App., 202.) In Mclnturf v. The State, 20 Texas Court of Appeals, 335, it is said, “the rule now established is that investigation with reference to other parties than the accused should not be permitted in cases either positive or circumstantial, unless the inculpatory facts are such as are proximately connected with the transaction. In other words, to show remote acts or threats would not be admissible unless there were other facts also in proof proximately and pertinently connecting such third party with the homicide at the time of its commission.” (Citing Means v. The State, 10 Texas Ct. App,, 16; Aikin v. The State, Id., 610; Hart v. The State, 15 Texas Ct. App., 202; 72 Ala., 522; see also 15 Lea, Tenn., 694, a case in point.) The proposed testimony of the witness Rhodes, under the rule above stated, was clearly admissible. The inculpatory facts against Taylor Kunde disclosed by this testimony are proximately connected with the murder of Drennon . There are, also, other facts in evidence which proximately and pertinently connect Taylor Kunde with said murder, and which render the theory that he committed said murder, or had it committed, fully as probable as that defendant committed op was concerned in its commission. Manifestly, to our minds, the-proposed evidence was relevant, admissible and material, and its rejection is error for which the conviction must be set aside-.

III. For the reasons stated in discussing the admissibility of the testimony of Rhodes, the testimony of Mrs. Emma Kunde as to a difficulty between deceased and Albert Kunde, a short time previous to the murder, was also admissible, and the court erred in rejecting it.

IV. The bundle of papers admitted in evidence were sufficiently identified, and it was not error to admit them in evidence; nor was it error to permit and direct the witness Zorn to-retire from the court room into a room by himself for the purpose of thoroughly examining said papers with a view to identifying and explaining them in his evidence.

V. It was error to refuse to permit the witness Rust to- testify as to the cause why some of the defendant’s witnesses were not asked, on the habeas corpus trial, as to the two Mexicans who-were at Kunde’s house on the evening of the murder. It was sought by the State to cast discredit upon the testimony of some of defendant’s witnesses who testified about the Mexicans, by showing that when these same witnesses testified on the habeas, corpus trial they did not state anything about the two Mexicans. Defendant sought to show by the testimony of Rust that said witnesses, on the habeas corpus trial, were not interrogated as to the Mexicans, that he was counsel for the prisoners on that trial, and that he did not undertake to develop the evidence in behalf of them, because, owing to the great prejudice then existing against said prisoners in the minds of the people, he did not expect to obtain bail for them. This testimony would have-afforded a reasonable explanation of the silence of the witnesses in regard to the Mexicans, when said witnesses testified on the habeas corpus trial, and would have tended to remove any unfavorable impression as to the credibility of said witnesses which might have been created upon the minds of the jury, by said silence. (Wilson v. The State, 17 Texas Ct. App., 525; Phillips v. The State, 19 Texas Ct. App., 158.)

VI. A number of objections are urged to the charge of the court. Mo exceptions to the charge were made at the time of the trial. After a careful study of the charge, we fail to percéive any material error in it. Ho additional charges were requested by the defendant.

Opinion delivered October 27, 1886.

VII. The twenty-second assignment of error calls in question the sufficiency of the evidence to support the conviction. Circumstantial evidence alone is relied upon by the State to sustain the conviction. After very careful and repeated examination of the evidence as presented in the statement of facts, we unhesitatingly say that to our minds it is wholly insufficient to warrant the conviction. There are but few circumstances which tend even remotely to prove this defendant’s connection with the murder, and none of these inculpatory circumstances are at all inconsistent with his innocence, nor are any of them incapable of explanation upon any other hypothesis but that of his guilt. Taken altogether, the circumstances are far from being of a conclusive nature. They do not lead the mind to a satisfactory conclusion, and do not produce a reasonable and moral certainty of the defendant’s guilt. In other words the evidence, being wholly circumstantial, is not of that of force, certainty and conclusiveness demanded by the law in support of a conviction for felony. . (Pogue v. The State, 12 Texas Ct. App., 283; Lovelady v. The State, 14 Texas Ct. App., 545; Rye v. the State, 8 Texas Ct. App., 153; Hunt v. The State, 7 Texas Ct. App., 235; Robertson v. The State, 10 Texas Ct. App., 602; Black v. The State, 1 Texas Ct. App., 369; Barnes v. The State, 41 Texas Ct. App., 342.)

Other errors are assigned, but they are of a character not likely to occur on another trial, and we pass them without discussing or deciding them. Because of the errors in the rulings of the court in relation to evidence, which we have pointed out, and because the court erred in not granting defendant a new trial because of the insufficiency of the evidence, the judgment is reversed and the cause remanded.

Reversed and remanded.