Johnson v. State

Conviction is for murder. Penalty assessed at death.

This is the second appeal. The former opinion will be found reported in 86 Tex.Crim. Rep., 218 S.W. Rep., 496. The present record contains evidence not shown on the former appeal. The witness who testified on the former trial that within five minutes after the shooting deceased told him "Old ``It' shot me," said upon the latter trial, that in the same conversation deceased also said "I shot the man who shot me." It appears from the record that appellant was the only person shot except deceased. Another witness, Brock, whose testimony was reproduced, claims that appellant told him shortly after the shooting: "I shot Mr. Yarbrough and Mr. Yarbrough shot me." We do not find the latter testimony incorporated in the statement of the evidence in the former opinion.

The statement of facts consists of fifty-eight pages, thirty-eight pages of which are in questions and answers. Two pages of this is the reproduction of Bud Brock's evidence from the stenographic notes on a former trial. This much we will consider. The remainder of the statement of facts which appear in that form will not be considered. Ferguson v. State,83 Tex. Crim. 272; Rooney v. State, 73 Tex.Crim. Rep.; Felder v. State, 59 Tex.Crim. Rep.; Hargrave v. State,53 Tex. Crim. 147; Fox v. State, 53 Tex.Crim. Rep.; No. 6447, Parker v. State, (decided December 7th, 1921, not yet reported). For other cases see notes under Article 846, Vernon's C.C.P.

An attempt was made to raise the question of discrimination against appellant in the selection of the venire on account of his color. The evidence on this issue covers thirty pages of typewritten matter in question and answer form in a bill of exceptions. This cannot be considered by us. We have often expressed our disapproval of bills in this condition. (See Note 21 Vernon's C.C.P. page 537 for authorities); also, R.S. Art. 2059; Plummer v. State, 86 Tex.Crim. Rep.; Jetty v. State: (No. 6407, decided November 30th, 1921, not yet reported); Parker v. State; (No. 6447, decided December 7th, 1921, not yet reported).

Exception was reserved to the reproduction of the evidence of Bud Brock, who testified on a former trial. Proper predicate was laid showing that Brock had died since the former trial. Counsel for appellant admits that since the decision in the case of Porch v. State, 51 Tex.Crim. Rep.; 99 S.W. Rep. 1122, the holdings have been adverse to his contention. The Porch case was decided in 1907, and the opinions of this court since have consistently followed the rule there announced. One of the latest reported cases in which the principle was approved is Brent v. State, 232 S.W. Rep., 845.

Objections were filed to the court's charge because the issue of murder was submitted, the contention being that the evidence failed to raise the issue; that at most accused could be guilty of no graver offense than manslaughter. We are not able to agree with appellant in this. The evidence seems fairly to raise the issue.

As a part of the main charge on the issue of manslaughter the court told the jury, substantially; that, if Nellie Baldwin had taken money from appellant forceably or stealthily, and that he followed her, armed with a pistol, and was making an effort to recover the money, and that deceased interfered and was preventing or attempting to prevent appellant from recovering it, or it so appeared to appellant, and that deceased's acts were such as to create sudden passion in the mind of appellant, and he killed under such circumstances, he would be guilty of manslaughter. Objections were seasonably made to this portion of the charge on the ground that no testimony in the case raised the issue, but that all the evidence showed deceased was trying to aid appellant in recovering his money. The evidence showed that appellant was trying to recover his money, and said in deceased's presence that he (appellant) would kill the woman if she did not give the money up, having in his hand a pistol at the time; that deceased said to him, substantially: "There is no use to kill anybody. I'll help you get your money; give me the pistol," at the same time reaching for it. We think the evidence called for the charge. Notwithstanding deceased had promised to help him get the money, yet if it appeared to appellant that he was about to be disarmed, and deprived of the means to secure the surrender of his property by the woman, then to that extent it may have appeared to appellant that deceased was hindering appellant in his effort to get back his property. We find that appellant requested a special charge, numbered six, the refusal of which is covered in bill of exceptions No. 12, much to the same effect. The court is requested to tell the jury that if at the time of the killing deceased was threatening to take from appellant a pistol and he shot deceased to prevent him from doing so, to find appellant guilty of manslaughter, unless they found it was necessary for appellant to kill deceased to prevent him from taking the pistol, in which event they would acquit him.

Complaint is made at the refusal of the court to give special charges Numbers 2, 3, 5 and 6. In submitting the issue of murder, the court required the jury to find (before they could convict of that offense), first, that the killing was not done by appellant in defense of property which appellant thought had been unlawfully taken from him by Nellie Baldwin; second, that he did not fire at Nellie Baldwin; third, but that he denied to, and did fire at deceased. Upon appellant's theory that he was not acting in the defense of his property to prevent a theft, but was trying to recover that which had already been stolen, the court gave a special charge instructing the jury, that if Nellie Baldwin took from the possession of appellant money belonging to him, and appellant immediately pursued and overtook her, not leaving her out of his sight, and attempted to kill her while trying to recover his stolen property, and while trying to kill her he killed deceased, they should acquit him of murder. Upon the issue of manslaughter (in addition to what has been discussed in the foregoing paragraph) the jury were told that if appellant, under the influence of passion from an adequate cause, but not in defense of property taken from him by Nellie Baldwin, killed deceased while trying to kill her, he would only be guilty of manslaughter. Then supplementing the instructions, he gave at appellant's request two special charges. No. 7 substantially being to the effect, that if Nellie Baldwin had stolen appellant's money; had been pursued and overtaken by appellant, the return of the money demanded and refused, appellant killed deceased, intending to kill her, and if he had killed her, that the offense would only have been manslaughter, they could only find him guilty of manslaughter in killing deceased. No. 8, is in substance, that if appellant intended to kill Nellie Baldwin, and the jury had a reasonable doubt whether the killing of Nellie Baldwin would have been manslaughter, as defined in the main charge, then killed of deceased would also be manslaughter. We do not set out the special charges refused, but after a careful examination of them we believe the main charge and the special charges given covered every issue raised by the evidence, and that no error was committed in refusing to give special charges Nos. 2, 3, 5 and 6, which appear in bills of exceptions 6, 9, 11 and 12. The specific defense made by appellant's own evidence was that he never fired at all, but that the shot which killed deceased was fired by a negro bearing the unique cognomen of "It." This issue was submitted and the jury decided it adversely to appellant's contention. Guarding, as it occurs to us, every right of accused which by any possible reasoning could arise from the testimony, the court even submitted negligent homicide.

Appellant filed an application for suspended sentence. In support of that issue he offered testimony that his reputation as a peaceable and law-abiding citizen had been good. He also supported the same by his own testimony, not only to the effect that he had never been convicted of a felony, but he testified that "he had never been arrested during all of his life." In rebuttal the state introduced, over objection, upon the issue of suspended sentence the testimony of one A.H. Bracken. The court stated in the presence of the jury that the testimony was admitted only upon the issue of suspended sentence, and also properly limited it to that issue alone in his charge. Bracken's testimony in substance was, that he owned and operated a service car; that six weeks or two months before the killing he had hauled several negroes, including appellant, to Pineland to attend a moving picture show; that he was also to wait and take them back to the turpentine camp; that just before they were ready to start back there was a difficulty between appellant and another negro at the car; they were trying to fight; that the constable, a white man, came up and tried to arrest them; that appellant drew a pistol on the constable and defied him, and prevented him from making the arrest. This testimony was objected to on the ground that it threw no light upon the guilt or innocence of accused, and was calculated to prejudice the minds of the jury against him. The incident had no bearing upon the question of guilt or innocence. Appellant was a negro charged with killing the boss of the turpentine camp, a white man, under whom accused worked. Bracken's evidence that shortly before this killing appellant had prevented his arrest by drawing a pistol on a white officer was of a hurtful character, and unless clearly admissible on some issue in the case should have been excluded. As was said in Williamson v. State 74 Tex.Crim. Rep., 167 S.W. Rep., 360, when appellant files application for suspended sentence the law then puts in issue his general reputation. In that case, and also in Baker v. State 87 Tex.Crim. Rep., and in Wagley v. State 87 Tex.Crim. Rep., this court undertook to lay down general rules by which in suspended sentence cases such "general reputation" shall be established, but at the same time recognized many apparent exceptions to the rules, dependent on the manner in which proof of certain facts become pertinent, which otherwise might not be admissible. The Baker case furnishes an instance which is very similar in principle to the question in the present case. After reciting the evidence admitted, Judge Morrow, speaking for the court, said: "The remoteness of this evidence, we think, would render it inadmissible, except for the fact that it seems to have been pertinent to an issue presented by the appellant." In the instant case appellant testified that he had never in all his life been arrested. The inference of the jury naturally would be, and the impression likely sought to be made was, that his past conduct was of such exemplary character that no act of his authorized his arrest. If Bracken's testimony be true, the state met the issue injected by appellant by showing he was subject to arrest for an act committed in the presence of an officer, and avoided same by violent resistance. While proof of such a transaction would not perhaps have been available to the state as original evidence on the issue of suspended sentence, yet, we find no error in its admission under the circumstances.

Two bills of exceptions appear in the record to argument of representatives of the state in closing the case. It is disclosed that both counsel for appellant and the state prepared bills on these matters, neither of which the judge thought correct, and he prepared and filed bills in lieu thereof. The bills are not discussed at any length by us. We have examined same carefully and have been unable to discover ground for any serious complaint. We are bound by the recitals in the bills, and as thus presented no error is shown.

On account of the extreme penalty having been assessed in this case, we have carefully considered all questions arising. We have found no errors which would warrant a reversal. The legal rights of appellant appear to have been jealously guarded at all points. The killing occurred in Sabine County. Venue was changed to San Augustine County where a death penalty was assessed. Upon reversal of that judgment, the case was transferred to Newton County and the extreme penalty again fixed by another jury. These juries in counties other than that in which the homicide was committed must be presumed to have been free from any feeling, and to have reached their verdict solely from the facts before them. We would be encroaching upon their domain to reverse because of the penalty inflicted, unless the verdict under all the facts shocked the judicial conscience to let it stand.

The judgment of the trial court is affirmed.

Affirmed.

ON REREARING. May 3, 1922.