Rogers v. State

Appellant was convicted of murder in the first degree, and his punishment assessed at confinement in the penitentiary for life.

Appellant assigns a number of errors, but in the view we take of the case it is not necessary to discuss any of them at length. Appellant objected to certain statements alleged to have been made by him to Sheriff Henderson the night of his arrest, and shortly after that event. It appears that the sheriff immediately on his approach to the prisoner, who had been arrested by a deputy a few minutes before, said to him: "Where is that razor? I warn you that any statement made by you will be used against you on the trial. Where is that razor?" In response thereto defendant said, "I have not got any razor." Subsequent to this, after the razor was found near where defendant was arrested, appellant being then in the calaboose, and about an hour after the conversation the sheriff showed appellant a razor, and asked defendant if it belonged to him. Defendant replied that it did not. The sheriff then told appellant that he had better tell the truth about killing that man, and defendant replied that he knew nothing about the killing. Defendant objected to all of this testimony on the ground that appellant's statement in connection with his conduct was a mere declination to make any statement, and because said statement, though given under the warning, was made under pressure and excitement and was merely a negative statement made under the apprehension of danger from mob violence, the defendant having been advised by Chandler and others that the woods near Forney were full of angry people. And furthermore, because it was apparent, from the manner in which said questions were asked, that it was the purpose of the sheriff to force defendant to make a statement. All of these objections were overruled. Under the rule laid down in Grimsinger v. State, ante, p. 1, 5 Texas Ct. Rep., 628, in the opinion of the writer the testimony was admissible. The fact that it was not in terms a confession would not render it inadmissible; the rule being, that any statement made that may be shown to be an inculpatory or incriminative fact may be introduced in evidence. Bailey v. State, 40 Tex. Crim. 150. Inasmuch as there is some question in regard to the free and voluntary character of the confession, should the facts be the same on another trial, it is suggested that the issue as to whether or not the statement of appellant was free and voluntary, after such warning, should be submitted to the jury. We think it was competent, in the cross-examination of appellant, to ask him with reference to his denials as to the killing, and also as to his reason for such denials; and also as to his reason for concealing the alleged offense. But we do not think it was permissible to show that appellant was requested to go before the grand jury and testify in regard to the matter, and that he declined to do so. Appellant had a right to go before the grand jury if he desired, but the fact that he did not go could not be used as evidence against him. Weaver v. State, 43 Tex. Crim. 340, 3 Texas Ct. Rep., 639.

We believe that it was competent, under the circumstances of this case, to prove by the witnesses, as was attempted, the reputation of deceased in the community in which he lived, as being a man that gambled with negroes. The theory of the State was that appellant claimed to have won the money, some 60 cents, and that deceased took it from him, or would not permit him to take it, and that appellant formed the intent to kill deceased of his malice on that account. Appellant testified that he and deceased were playing a game of cards, and he won the money, and deceased charged him with swindling him by turning the cards from the bottom, and claimed the stakes, and wanted appellant to give him all the money that he had won from him, besides the stakes then up. This appellant refused, when deceased cursed him and made a demonstration as if to draw a weapon on him. Appellant also testified that he went into the game with deceased on his urgent invitation and insistence. As corroborating appellant in this respect, showing how the game began, we believe the testimony was competent. White men do not ordinarily play cards with negroes, and the fact that deceased was in the habit of playing cards with negroes was a circumstance tending to shed light on how the game came to be played which led up to the homicide.

We do not believe it was competent for the State, in cross-examination, to ask appellant and require him to state why he did not tell McKellar about the killing. We do not understand appellant to have brought out this evidence to the effect that he did not tell McKellar.

It is also insisted that the facts proven fail to show express malice. We have carefully examined the record in that respect, and we agree with that contention. The State introduced and relied on the confession of appellant, and this, together with appellant's own evidence, which corroborates and accords with that confession, was the only testimony showing the circumstances attending the homicide. And these, to our minds, show a killing on a sudden quarrel, without any previous grudge. There does not appear to have been any antecedent preparation; the homicide being committed with a razor, which was in the coat pocket of appellant immediately in front of him, and he seized this and used it, according to his own testimony, to prevent deceased from attacking him. Nor does the mode of committing the homicide, as shown by the testimony, evidence that malignant disposition indicating express malice; but one blow was inflicted, and although that was a severe one, upon a vital part of deceased, it does not of itself show a malignant and cruel disposition. In the absence of evidence of the indicia showing express malice, which must be proved in order to sustain the conviction of murder in the first degree, the killing, if unlawful, would be no more than murder in the second degree; and looking at the facts as they appear to us, we do not believe they will sustain a conviction for more than that.

For the error discussed, the judgment is reversed and the cause remanded.

Reversed and remanded.