Messer v. State

Appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a period of twenty years.

The testimony adduced on the trial shows, substantially, that defendant had been informed by his wife that deceased had offered numerous indignities to her prior to her marriage with him, and several insults after her marriage; that upon being apprised of these insults, by the wife, appellant sought deceased, as he stated, with the view of getting deceased to desist from any further attentions towards his wife; that upon meeting deceased, whom he was seeking, and after a conversation continuing some twenty or thirty minutes, deceased offered additional insults to appellant's wife, and attempted to secure a rock with which to assault appellant, and thereupon appellant proceeded to shoot deceased, and pursued him as he ran off, firing five shots into his body, from which wounds he died. Appellant's wife testified to the insults above referred to, and the State introduced testimony for the purpose of contradicting and impeaching the truthfulness of her statement.

The first assignment of error that we deem necessary to be considered is appellant's insistence that the court erred in permitting the State to prove by Mrs. M.B. Broaddus a conversation between her and the appellant's wife, which took place in the spring of 1900, about the month of March, after the marriage of defendant with his wife, in which conversation Mrs. Broaddus was allowed to testify as to various matters then stated. Appellant's objection to this testimony is that the conversation testified by Mrs. Broaddus was not admissible for the purpose of contradicting the wife of appellant, but that same was separate and independent matter, whereby appellant's wife was made to give testimony against herself through the mouth of Mrs. Broaddus. Appellant concedes, in the able brief and argument of his counsel, that this testimony is admissible for this purpose; that is, for the purpose of contradicting and showing the lack of truth in Mrs. Messer's testimony. But the testimony of Mrs. Broaddus shows she testified to facts that would not be admissible in impeachment of appellant's wife. The law does not permit the husband or wife to be witnesses against each other. If the husband is on trial, and his wife is a witness, and she should swear to facts injurious to him in answer to questions he propounds, he can not complain. But, where she swears to certain facts and circumstances, the cross-examination must be confined to the matter elicited in chief. Of course, everything legitimate for the purpose of testing her knowledge of the facts testified to, her bias, her prejudice, in fact any matter that legitimately goes to her discredit, is admissible on cross-examination. However, where the State leaves the matter testified to in chief, and proves independent criminative facts against the accused, this would not be a proper cross-examination of the witness. Jones v. State, 38 Tex.Crim. Rep.-118; Gaines v. State,38 Tex. Crim. 228; Red v. State, 39 Tex.Crim. Rep.; Merritt v. State, 39 Tex.Crim. Rep.; Creamer v. State,35 Tex. 174; Hoover v. State, 35 Tex.Crim. Rep..

Applying the foregoing rule to the testimony of Mrs. Broaddus, while it is too voluminous to review each item of her testimony, we will say it was not permissible for the State to prove by her the conversation she had with the wife of appellant, wherein the wife detailed a long train of domestic infelicities and entreated on her part to persuade appellant to join the ministry. The testimony of Mrs. Broaddus should be confined within the rule above laid down, under the predicate laid for the impeachment and contradiction of the testimony of appellant's wife. Only this, and nothing more, should be permitted. We merely state the foregoing as an illustration of the inadmissibility of a large part of Mrs. Broaddus' testimony. In other words, the wife of appellant having testified to direct insults by deceased to her prior to and subsequent to her marriage to appellant, if she made any statement or statements to Mrs. Broaddus or other parties contradictory of the statements testified, upon a proper predicate being laid, she could be impeached by the introduction of the witnesses testifying to the contradiction. But it is never permissible to permit such witnesses to go further and prove more than these contradictions. Appellant complains of the following portion of the court's charge: "The evidence of the witnesses Hyde, Barker, Mrs. Broaddus, Mrs. Wood, and Mrs. Boyd, tending to contradict the evidence of Mrs. Messer, the wife of defendant, was introduced solely as going to the credibility of said Mrs. Messer as a witness, and not as any evidence of the guilt of the defendant, and you can consider it only for the purpose for which it was introduced and for no other purpose." Appellant insists this charge is upon the weight of the evidence. We think the charge is correct. The court also charged the jury: "In this connection you are further charged, that where a homicide committed by a husband is sought to be reduced to manslaughter by reason of insulting conduct towards the wife of the slayer, while the insulting conduct towards such female before her marriage could not be relied upon to reduce such homicide to manslaughter, yet such conduct, if known to the husband, may be looked to for the purpose of giving character to the conduct of the person killed towards such female after her marriage, and in illustrating the intent and acts and words of the person killed as they appeared to such husband at the time of the homicide." This is a correct presentation of the law as far as this charge goes. But appellant insists that the court should have gone further and made an application of the law to the facts. In Jones v. State we said: "If, in this case, appellant believed the insulting conduct communicated by his wife actually occurred as detailed by her, then, to his mind such conduct was a reality, and the charge should have been so framed as to submit this immediate issue to the jury. Men often act upon the most important affairs and interests in life upon mistakes of fact. They often risk honor, reputation, fortune, and life upon mistakes of fact; of course, believing at the time they are not mistaken. The guilt of the accused party, in such state of case, should not depend upon the existence or non existence of the fact itself, but upon the circumstances as they appeared to and were understood by him at the time of his acting upon them. Such questions are matters of fact to be solved by the jury under appropriate instructions. That the insulting conduct had or had not occurred would have been immaterial if she had so informed Jones, and he believed her. If the jury should believe that Mrs. Jones informed her husband of the conduct of deceased towards her, and that his passions were thereby aroused to the extent of rendering his mind incapable of cool reflection, and that, while his mind was thus inflamed, he shot and killed Veal upon first meeting with him after receiving such information, his offense would be of no higher grade than manslaughter." Jones v. State, 33 Tex.Crim. Rep.. This phase of the law was not given in this case. The court, in addition to the charge above indicated, should have told the jury, that although they may believe the wife's testimony about insults on the part of deceased is not true, yet the jury should take such real or supposed insults into consideration in passing upon the guilt or innocence of appellant; and if they find from the evidence that defendant believed the statements of his wife, and the statements of his wife, coupled with the statements and acts of the deceased at the time of the homicide, taken together, rendered defendant's mind incapable of cool reflection, and while laboring under such anger, rage, sudden resentment or terror, produced from said previous insults repeated to him by his wife, together with the insults and acts of the deceased at the time of the homicide, he slew deceased, then and in that event he would be guilty of manslaughter; and as to whether defendant believed the statement of his wife in reference to the insults offered by deceased is a question that must be passed upon from defendant's standpoint. The State, through its special counsel, insists that: "If defendant claims he killed deceased because of certain language or conduct, which is not itself adequate cause, the jury can look to the former conduct of deceased believed by defendant, for the purpose of understanding the meaning of the language and conduct of deceased at the time of the homicide, and if, construed in this light, the language at the time of the homicide becomes adequate cause, and if the other essentials are present, then the offense is manslaughter; but if the language claimed to have been used by the deceased is of itself adequate cause, and such that the former conduct and language believed to have been used by him does not explain or throw any light upon it, then it becomes unnecessary for the jury to look to that former conduct and language." We know of no authority supporting this position. Simply because deceased may have offered an insult to defendant at the time of the homicide sufficient to have produced an adequate cause, and thereby reduce the homicide to manslaughter, would not justify the court in refusing to charge on the law indicated above. If the previous insults and indignities, coupled with the present indignities, as contended by appellant, could be and ought to be considered, then surely previous insults, coupled with the present adequate cause, being a double reason, should be considered by the jury in passing upon the issue of manslaughter.

Appellant further insists that the court erred in the following portion of the charge: "If from the evidence you believe that defendant killed the said Boyd, and further believe that, at the time of so doing, deceased made an attack on him which, from the manner and character of it, and the relative strength of the parties, and defendant's knowledge of the character and disposition of the deceased, caused him to have reasonable expectation or fear of death, * * * then you will acquit." The particular part complained of is, "and defendant's knowledge of the character and disposition of the deceased," in that the same was a charge upon the weight of the evidence. This charge is correct. Clearly, the character of the deceased being known to appellant, as the evidence in this case shows, it was proper for the court to charge the jury as it did.

Appellant's seventh assignment of error is that the court erred in excluding the testimony of the witness Mart Land, offered by defendant, to the effect that in a conversation with deceased, Boyd, during the fall of 1899, and shortly before the time Mrs. Messer testified that Boyd began his misconduct towards her, Boyd asked the witness "how he liked his little widow" (referring to Mrs. Gravitt, who subsequently became the wife of appellant), and, upon being reprimanded, replied that the witness knew his weakness along that line. This testimony should have been admitted, as it tends to corroborate the testimony of appellant's wife as to the conduct of deceased towards her.

Appellant's eight assignment of error is that the court erred in refusing to permit defendant to prove by Mrs. J.D. Bassill that during the summer of 1900, and after the time that Mrs. Messer testified she told defendant about Boyd (deceased) attempting to kiss her while she was a widow, in a conversation between defendant and witness Mrs. Bassill, defendant related to her the circumstances his wife had previously told him about. Appellant insists this testimony is admissible for the reason that the State had attacked the testimony of Mrs. Messer and appellant upon this subject as false and fabricated, and that the testimony of said witness would have corroborated and strengthened the testimony of appellant and his wife. In Utzman v. State, 32 Texas Criminal Reports, 428, defendant offered to prove by his elder half-brother that defendant talked to witness about the insults offered by deceased to his wife soon after appellant moved from deceased's place to Hamilton County, stating to witness that he had just learned these facts from his wife, and that while appellant was talking to witness he became very much agitated and shed tears; and we held said testimony as admissible. In Jones v. State, 38 Texas Criminal Reports, 102, we held that conversations defendant and his wife had with the witness Kendall with reference to a similar matter were admissible. See also Hammond v. State, 28 Texas Crim. App., 413; Craig v. State, 30 Texas Crim. App., 619. We think this testimony was admissible as tending to rebut the contention of the State that the defense urged by appellant was fabricated. It was also admissible as tending to show that insults had been communicated to appellant by his wife.

The question as to the disqualification of the jury, urged and ably insisted upon by appellant, we do not deem necessary to be reviewed, as it will not likely arise upon another trial of this case. For the errors discussed, the judgment is reversed, and the cause remanded.

Reversed and remanded.

[Note. — The State's motion for rehearing was overruled without a written opinion. — Reporter.]