Jones v. State

In bill of exception No. 8 appellant claims that he offered to prove that at the time of his death the deceased was under indictment in the District Court of Grayson County for the offense of robbery with firearms. The evidence was rejected as immaterial. As we understand the record, the indictment was against Claud Bell; that the witness Roscoe Goodall would have testified that the deceased was known under the name of Claud Bell; that the deceased had told the witness Goodall that he had gotten into some trouble in Grayson County and had been indicted under the name of Claud Bell for the offense of hi-jacking. The record is void of any evidence that appellant was aware of the claimed indictment. That there was such an indictment was supported by hearsay alone.

Appellant introduced evidence to the effect that the deceased was a man whose reputation for peace and quietude was bad.

Appellant did not testify, but his written confession was introduced by the State. It appears from the confession that appellant, deceased and other negroes were "shooting craps." From the confession we quote: "I made a bet with Bub Popanough and won the money. The money was lying on the table. Although I had won it, Bub Popanough picked it up. I told him to give it to me and he said that he was not going to pay it. I asked him a second time and he said that he would die and go to hell first. When he said that he put his hand in his pocket. When he did that I shot him. I shot him three times with a .32 caliber pistol. It was a Colt pistol. * * * I had the pistol in my right-hand front pocket when we were shooting craps there and took it out of that pocket when I shot Bub Popanough. * * * I shot him because he got my money. He had got my money once before already today."

The admissibility of the testimony stated above is open to serious question for the reason that it was entirely hearsay. There had been no conviction or trial of the deceased. Assuming that such testimony might under some circumstances be admissible, we are impressed with the view that in the present record the appellant did not know of the indictment of the deceased at the time of the homicide. The evidence was not admissible. If we understand the record, the deceased exhibited no weapon and made no threat or demonstration to assault the appellant other than to put his hand in or near his pocket or watch pocket.

In support of his bill of exception No. 8, appellant refers to the following cases: Pollard v. State, 125 S.W. 390; Cole v. State, 88 S.W. 341; Dodson v. State, 70 S.W. 969; West v. State, 18 Texas App., 640; Creswell v. State, 14 Texas App., 1; Poer v. State, 67 S.W. 500.

In Poer's case, supra, touching the exclusion of evidence of prior assaults, the following remarks were made: "Usually testimony of this character would have but little bearing upon the case. * * * But, under the facts detailed in the testimony, the prior assaults, being known to defendant, would seem to have been entered into and tend to solve this difficulty."

The judgment was reversed with one of the judges dissenting.

The case of Cole v. State, supra, was reversed upon several grounds. Its applicability to the present appeal, if any, is quite remote.

The Dodson case, supra, was one in which the accused relied entirely upon self-defense. The court sanctioned the introduction of evidence to the effect that the accused had learned that the deceased had previously served a term in the state penitentiary.

The Pollard case, supra, is voluminous but it really sheds no light upon the matter involved in the present instance.

The Creswell case, supra, is to the effect that the general reputation of the deceased is admissible only when it is shown at the time of the homicide that he did some act indicating a purpose to take the life of the defendant or do him some serious bodily injury.

The West case, supra, merely goes to the point that proof of the dangerous character of the deceased is ordinarily available when the circumstances raise the issue of self-defense.

In the instant case, the court charged the jury on the law of self-defense.

We entertain and express the opinion that in the light of the record, bill of exception No. 8 shows no error.

Touching the other matters contained in the motion for rehearing, we reaffirm our conclusion stated in the original. opinion.

The motion for rehearing is overruled.

Overruled.