Self v. State

Willson, Judge.

It was not error to permit the State to prove that its witness Simms had made a contradictory statement in relation to the threat about which he testified. His testimony as to the threat was injurious to the prosecution, and it was permissible for the State to attack it in any manner except by proving his bad character. Code Crim. Proc., art. 755.

In view of the evidence adduced on the trial the rejection of the proposed testimony of the witness Alford, offered by defendant, for the purpose of explaining his continued absence after the homicide, in Arkansas, was not such error as requires a reversal of the judgment. Said proposed testimony is not of a character which could reasonably have influenced the result favorably to the defendant. Willson’s Crim. Stat., sec. 2540. The testimony, however, was we think admissible.

Objections to the charge of the court upon malice, threats, and self-defense are insisted upon by counsel for defendant. The charge and the objections thereto are substantially the same as in the case of Powell v. The State, this day decided {ante, 393), and we refer to our opinion in that case for a statement of our views and conclusions upon the questions here presented.

There is no evidence which, in our judgment,«required a charge upon manslaughter. Under the facts of the case the homicide was either murder or it was justifiable. Defendant claimed that it was justifiable, and the evidence excludes the theory of manslaughter.

It is strenuously and plausibly argued by counsel for defendant that an instruction upon circumstantial evidence should have been given. We do not think such an instruction was required. Defendant admitted that he killed the deceased. This was direct, positive evidence of the corpus delicti. In homicide the factum prodandum is the destruction of the life of the deceased by the act, agency, or procurement of the accused. The hilling of the deceased by the defendant is the main fact in the issue. This fact in this case is not wholly proved by circumstances, but is also •directly attested by an eye-witness—-that is, by the defendant himself. It is not required, in order to dispense with a charge on circumstantial evidence, that the defendant’s guilt should be established by direct evidence. It is only when the inculpatory evidence is wholly circumstantial, and where the defendant’s guilt is dependent wholly upon that character of evidence, that an instruction as to circumstantial evidence is required. Clare v. The State, 26 Texas Ct. App., 624; Willson’s Crim. Stats., sec. 2342. That the defendant killed the deceased was an inculpatory fact, and this fact having been proved by direct evidence, dispensed with the necessity of a- charge upon circumstantial evidence.

A question which is to our minds more serious than any other presented in the record is, should not a new trial have been granted the defendant to enable him to obtain the absent testimony set forth in his application for a continuance? It was contended by the prosecution that the deceased was friendly with the defendant and bore no ill will against him; and testimony was adduced by the State tending to show such state of feeling on the part of the deceased towards the defendant. By the absent testimony the defendant proposed to prove that the deceased was unfriendly to him; had for a series of years treated him unkindly and inhumanly; and that deceased, some two months before the homicide, had stated that he intended to drive defendant away from the home which he, defendant, had purchased from him, deceased, and appropriate said home to himself, and that said home should never do the defendant any good, and that these declarations of deceased were communicated to the defendant before the homicide.

In view of the testimony adduced on the trial, it must be conceded that said absent testimony is probably true. Is it material ? Defendant claims that the homicide was justifiable; that he committed it in self-defense. There was no eye-witness to the tragedy except the defendant. He testified that the deceased was sitting upon the porch; that as he, defendant, stepped upon the porch the deceased said to him, “ Tom, I am going to kill you,” and arose and started towards him with something in his right hand, which he, defendant, took to be a knife, and that he, defendant, then shot-deceased. What bearing would the absent testimony have upon the defendant’s theory of self-defense? Would it not tend to support that theory and corroborate the testimony of the defendant given in his own behalf? If, as claimed by the prosecution, the deceased bore no ill will to the defendant, was friendly to him, and had no motive to attack him, it is improbable that he would have attacked him in the manner -stated by the defendant. If, on the other hand, the deceased was unfriendly to the defendant and had a motive for attacking him, these facts would render the attack testified to by the defendant probable, and would tend to support the theory of self-defense. We are constrained to conclude and hold that the absent testimony is not only probably true, but that it is relevant and material, and entitles the defendant- to a new trial. It may be that if said absent testimony had been before the jury it would not have changed the verdict. We are not prepared to say that it would not reasonably have-enured to the advantage of the defendant. Hammond v. The State, this, day decided, post, 413.

Believing that the defendant is entitled to the absent testimony, and that justice and law demand that he should have it, we reverse the judgment and remand the cause for a new trial.

Reversed and, remanded.

Hurt, J., absent.