Johnson v. State

White, Presiding Judge.

The indictment in this case was for murder of the first degree. A motion was made by defendant to abate or set it aside because it was not the voluntary act of the grand jury, in this, that the said grand jury, after investigating the facts, unanimously agreed that the indictment should be for murder of the second degree, and so reported it to the district attorney; that the district attorney refused or declined to draw it for that degree, and told them that it could only be drawn for murder of the first degree. It appears that the regular judge of the court had been taken sick the first week of the court, and was confined to his bed at a hotel—a special judge having been elected in his stead to preside. Hot being satisfied about their duty in the premises, the foreman of the grand jury went to the hotel to consult with the sick judge about the character of the indictment, and the said judge also told him that an indictment could not be drawn for murder of the second degree, and that it must consequently be returned for murder of the- first degree; and it was under these circumstances so returned, contrary to the wishes and finding of the grand jury. Upon the hearing of the motion to set aside, the same was overruled by the court.

Our statute provides but two grounds or causes for setting aside an indictment, and expressly declares that it shall be set aside for no other. These are, 1. “That it appears by the records of the court that the indictment was not found by at least nine grand jurors;” and, 2. “That some person not authorized by law was present when the grand jury were deliberating upon the accusation against the defendant, or were voting upon the same.” (Code Crim. Proc., Art. 523.) Under the facts shown, the case here stated comes within neither of the causes-specified. There is no question as to the number of jurors who-returned the bill, and it is evident that the district judge, though advising at his hotel, was not present when they were deliberating and voting upon the accusation against defendant. A plea in abatement or to set aside does not lie to establish by the evidence of individual members of the grand jury that the bill of indictment was never found. (State v. Oxford, 30 Texas, 428.) There is no authority to inquire whether an indictment was based on sufficient proof. (Morrison v. The State, 41 Texas, 516; Terry v. The State, 15 Texas Ct. App., 66.) A defendant has no right to inquire into the intentions of a grand jury except as they are expressed in the indictment. (Cotton v. The State, 43 Texas, 169.)

Independent of the two statutory causes named, jeopardy and want of jurisdiction are inherent defenses derived from the Constitution, and are recognized as the only exceptions to the statutory rule. (Rainey v. The State, 19 Texas Ct. App., 479; Williams v. The State, 20 Texas Ct. Ap., 357.) The court did not err in overruling the motion.

Several exceptions assail the ruling of the court in admitting the testimony of one Brumley as to statements made the day before the killing, by one Elzey, at the house of defendant, with regard to statements made by deceased to Elzey as to deceased’s feelings and intentions respecting a previous difficulty with defendant. It is claimed that a sufficient predicate was not laid for the admission of this evidence, in that it is not made sufficiently to appear that defendant heard the statements made to Brumley by Elzey. We are of opinion a sufficient predicate was laid, and that the evidence was admissible. The conversation was at defendant’s house, and, so far as the witness was able to state, both in the presence and hearing of defendant. Defendant was not shown to be deaf, was not out of the room where the conversation was going on, participated in the conversation, and, being the party most deeply interested, it is scarcely reasonable or even probable that he would not pay strict attention to a matter so nearly affecting his welfare—the statements by his most deadly enemy to his friend as to the purpose and intention of his enemy to further prosecute the difficulty, as he had threatened he would do.

Elzey, when placed upon the witness stand by defendant, on his direct examination, denied that he had ever made the statements attributed to him by Brumley at Johnson’s house, and denied on cross examination by the State (the times, places and circumstances as a predicate having been fully laid), that he had ever made similar statements as to deceased’s declarations of intention, and the fact that he had informed defendant of the same to three other named parties. Subsequently, when the three parties involved in the predicate were introduced by the-State to impeach Elzey in this particular, the defendant objected that the evidence was inadmissible, in as much as the proposed subject matter was wholly collateral, and it having been elicited on the cross examination by the State of the witness Elzey, the witness’s answer was conclusive, and the State was estopped from prosecuting a further inquiry into its truthfulness.

It is a general rule that a witness can not be cross examined as to any fact which, if admitted, would be collateral and wholly irrelevant to the matters in issue, for the purpose of contradicting him by other evidence, and in this manner discredit his testimony. * * * His answer can not be contradicted as to the-collateral or irrelevant matter by the party who asked the question, but it is conclusive against him. (1 Greenlf. Evid., 13 ed.3 449, and notes; Britt v. The State, 10 Texas Ct. App., 368; Stevens v. The State, 7 Texas Ct. App., 39.) The test as to whether a fact inquired of on cross examination is collateral, is this:Would the cross examining party be entitled to prove it as part of his own case, tending to establish his plea. (Hart v. The State, 15 Texas Ct. App., 202, citing Whart. Crim. Evid., 8 ed., sec. 484.) Now the State, as part of its case, would undoubtedly have had the right to prove that, on the day before the killing, the defendant had been informed that deceased had declared his intention to drop the difficulty. Whether he had been so informed was a material issue in the case, and upon this question we can perceive no error in admitting the testimony impeaching the witness Elzey.

Defendant’s fourth bill of exceptions is to the action of the court in permitting the State’s witness, Mrs. Elippin, mother of deceased, to testify, over objection of defendant, that on the night before th§ killing her son told her “that he was going on the next day to make up a party at Grade Smith’s on Monday-night.” Obviously the purpose of this testimony was to show that deceased was entertaining no deadly purpose or intent when he went to Caddo Mills, the place of the homicide, and that he did not go there to carry out the threats he had previously made against defendant’s life. We are of opinion the evidence was inadmissible, it being hearsay so far as defendant was concerned, and as such it was not binding upon him. An analogous question was raised in Brumley v. The State, decided at the last Austin term, and it was held that the evidence was inadmissible. It is true, in fact, that in no sense it could be said that the motives of Elippin in going to Caddo Mills on the fatal morning were a material issue in the case, and whatever his notives, they could not be binding upon defendant unless he was apprised of them, and he should not be held bound by any such secret, unexpressed, and hidden motives when the same are directly at war with all the facts and circumstance as known to and judged of by him from his own standpoint. It is a maxim ■of the law that a man is only bound so far as matters reasonably appear to him; he can not be bound by motives locked up and hidden in the breasts of others. Deceased’s undisclosed and undiscovered motive in going to Caddo Mills was not a material issue, and could throw no light whatever upon the guilt or innocence of defendant, whose motives alone were the important issue to be tried.

We are aware there is a conflict of authority upon the question, and the doctrine as declared in Hunter v. The State (11 Vr. N. J.), reported in volume 1, Criminal Law Magazine, page 64, is perhaps in direct opposition to our views, as expressed in the Brumley case. Still, a more mature consideration has only confirmed us in the correctness of our position as to the inadmissibility óf such testimony. A defendant at the time he acted was entirely ignorant of all knowledge of it, and yet the jury which tries him, knowing the facts, holds him responsible for their existence as facts. To do so is not justice, and, not being justice, it can not be law. It was error to admit the evidence.

Other objections to evidence saved by bills of exception are not commented upon, because not considered material. General and special exceptions were reserved to the charge of the court, and ten special instructions requested for defendant were refused by the court, and exceptions saved. We have neither the time nor inclination to notice these exceptions seriatim. Suffice it to say, that upon murder of both degrees and the law of self defense, whilst the charge presented the law, we do not think it presented self defense as applicable to the facts so pertinently, and certainly not with the same affirmative force in favor of defendant, as it was announced in more than one of the refused instructions, which should have been given.

There was no instruction upon manslaughter, and that phase of the law was not submitted. We are of opinion the facts warranted and called for a charge upon manslaughter. It was for the jury to say from the facts whether or not adequate cause existed for the homicide. Adequate cause is estimated and measured by sudden passion, and this sudden passion may be either of the emotions of the mind known as anger, rage, sudden resentment, or terror, rendering the mind incapable of cool reflection. (Penal Code, Art. 594; Williams v. The State, 15 Texas Ct. App., 617; Hobbs v. The State, 16 Texas Ct. App., 517.)

Two days before the killing appellant had had a most serious rencounter with deceased, in which deceased had assailed him with a knife—a deadly weapon. Deceased left him on that occasion breathing out threatenings and slaughter against him. He renews the threats subsequently, even in more violent language, to several parties in Caddo' Mills, saying he intended to kill defendant before Monday night. Defendant’s friends, hearing of these threats, warn him of his danger; tell him deceased is a dangerous man, one likely to execute his threats—and the evidence strongly tends to establish such a character. Defendant is a man of peace, but in view of these facts arms himself with a pistol. On Monday morning he is in the village close to his home attending to his business, when he sees his deadly enemy arrive upon horse back, dismount, throw his hand behind him as though to his hip pocket. Defendant starts for his horse, deceased approaches as though to intercept him, he comes within a few feet. Will any one say that under these circumstances defendant’s mind could not be, and probably was not, aroused to sudden new terror or resentment, rendering it incapable of cool reflection? If it was, then there was adequate cause in law.

Opinion delivered November 10, 1886.

It is true the statute says that “the provocation must arise at the time of the commission of the offense, and that the passion is not the result of a former provocation.” (Penal Code, Art. 594.) But we have here, not only a former provocation, but the present new terror or resentment, aroused by the acts and conduct of deceased, and we may look to the former provocation in estimating and determining the reasonableness of and the degree of the present terror or resentment; that is, as to whether it probably affected the mind to the extent that it was incapable of cool reflection. As was said in Miles v. The State, 18 Texas Court of Appeals, 170: “ Now, while it is true that the provocation must arise at the time of the commission of the offense, and the passion must not be the result of a former provocation, yet, in passing upon the sufficiency of the provocation, and on the effects of the passion upon the.mind of the defendant, the past conduct of the deceased towards defendant, his threats and bearing, in fact, all the facts and circumstances of the case, should be considered by the jury. An act standing alone may not be sufficient provocation, but may be ample when it is one of a series of similar acts, or when it has been preceded by an insolent and aggravating course of conduct, whether similar or not to the act committed at the time of the homicide.” (Rutherford v. The State, 15 Texas Ct. App., 236; Williams v. The State, 15 Texas Ct. App., 617; Neyland v. The State, 13 Texas Ct. App., 537; Wadlington v. The State, 19 Texas Ct. App., 266.)

For errors pointed out as to evidence, and for failure and omission of the court to instruct the jury with regard to the law of manslaughter as applicable to' the facts of the case, the judgment is reversed and the cause remanded.

Reversed and remanded.