Holley v. State

ON MOTION EOR REHEARING.

June 8, 1898.

HEHDERS OH, Judge.

At a former day of this term we affirmed this case, and it now comes before us on motion for rehearing. Appellant insists that we are in error in holding that the threat proved by Frank Ermis was admissible; and he also insists that appellant’s wife should have been permitted to state the language used by House, the deceased, to her in regard to the defendant. Both of these questions were examined and decided against appellant in the former opinion. We held with reference to the threat proven by Ermis “that notwithstanding deceased was not named "in connection with the threat, that it can be rea7 sonably inferred that the threat was directed against him;” and we then stated the reasons which impelled us to this view. The able and exhaustive argument made by appellant’s counsel has caused us to more critically investigate that question than was done in the original opinion. The testimony in regard to the threat in question was as follows: Frank Ermis testified that on the day of the homicide in question, and a short while (perhaps an hour) before the killing, defendant came to his store, which was a few miles from the gin where the homicide occurred, and called for his account, and settled the same; and he heard defendant say, “I will kill the God damn son of a bitch, and be in Mexico before morning.” Witness stated that he did not know whom the defendant was talking about; that that was all that he heard; that shortly afterwards appellant left, and he went the road leading towards his (defendant’s) house, which also led past the gin where' the homicide occurred a little later. Appellant insists that this threat did not name the defendant, and, before it could be received in evidence against him, the threat itself must name deceased, or, in connection with the surrounding circumstances, it must be clearly shown that deceased was alluded to or meant by the threat. In Godwin v. State, 38 Texas Criminal Reports, 466, we examined this question in the light of the authorities, and we there laid down the rule as follows: “We hold the rule to be that evidence of general threats made by the defendant on trial for murder, when such threats are not shown to have been directed towards the person slain or to embrace such person, are inadmissible'.” How, upon whom is the burden to show that the .threat was directed towards the person slain, or embraced such person ? Obviously, upon the State, for no presumptions can be indulged against the appellant. Before the testimony can be ad mitted, it must appear that the threat was directed towards the person slain. As stated, appellant, at the time he used the language imputed to him, named no person. It was not a threat of general malignity which might embrace all persons, but it was a threat directed against some particular person. We have none of the conversation of appellant at the time in connection with said language. It stands out in an isolated shape, and no light is afforded us from anything that was said at that time or in that connection; so that, if we arrive at the conclusion that deceased was meant, we must do so from the other facts and circumstances in the case. All of the facts and circumstances bearing upon this question pre- . sented in the testimony are as follows: Appellant and deceased were at enmity, and had been for some months previously; that on one occasion, about a month prior to the homicide, when appellant went to get a cow in the possession of the deceased, which his father-in-law had authorized him to get, he was prevented by deceased's wife and deceased from taking her. Thereupon he drew his pistol, as if to assault deceased; and then, in the presence of the deceased's wife, remarked that he would kill deceased some day when his wife was not present. And he is also shown, while at the gin on the evening of the homicide, and just before it occurred, to have stated to one Bellamy, “I see House is here,” to which Bellamy replied, “You will monkey around some big man, and you will get the piss stamped out of you.” Then defendant said, “I wish House would try this once; I would do him up.” Wemken also testified that appellant approached him at the gin, and said to him, “I see House is here,” to which witness replied, “Yes,” and defendant said, “I am going to whip him.” It is further shown that appellant went into the gin room where deceased and Wemkin were sitting down and whittling with their knives; that he walked up near them; and Wemken said to him, “Somebody is going to whip you to-day.” Defendant said, “Well, if anybody thinks they can whip me, just let them try.” Then House sprang up with a knife, and the difficulty began which resulted in the killing. These are all the facts which serve to shed any light on the question of who was meant by appellant in his threat made at the store of Ermis; or rather, these are all the circumstances which in the remotest degree tend to show that deceased was meant. How, do they show with that degree of certainty which would authorize the threat to be used in evidence against appellant that, by the use of said language at the store, he meant the deceased, and no other person? It will not do to say that shortly afterwards, on the evening of the same day, he killed House, and therefore he must have meant him. Hor will it do to assume that, if appellant meant some one else, he knew whom he meant, and that it was incumbent on him to point out the person alluded to. We think the true rule is that the circumstances themselves, in connection with the threat, must with a reasonable degree of certainty establish the fact that appellant alluded to or directed the threat in question against deceased, before it can be admitted in evidence against him; and, if the circumstances in proof leave this matter in doubt, that doubt must be solved in favor of the defendant, and the threat must be excluded. After a calm review of the testimony, we do not believe that-the threat in question was admissible.

The remaining question is: Was the threat of a character, under the circumstances of this case, to prejudice or injure appellant? In the original opinion we said not; basing our decision on the fact that such threat did not interfere with or antagonize appellant’s right of self-defense, and that at the least, under the theory of the State, appellant was guilty of murder in the second degree, and that the jury inflicted upon him the least punishment, and consequently he was not injured. In that view we believe we were mistaken. The admission of said testimony was equivalent to informing the jury that, in the opinion of the court, appellant, only a few hours before the fatal rencounter, had made a terrible threat to take the life of the deceased; and it was calculated to support and strengthen all the testimony of the State’s witnesses tending to show an unprovoked assault and killing by appellant of deceased, and so to destroy and sweep away his theory of self-defense, which was supported alone by his own testimony. And, in that view, said testimony was evidently harmful, and calculated to prejudice appellant as to this theory of the case before the jury.

Appellant, as stated before, also insists that the court erred in holding the testimony of appellant’s wife inadmissible. The bill of exceptions shows that said witness, Mrs. Holley, would have testified as follows: “That the deceased frequently upbraided me for not marrying'his brother, and for marrying my husband [the defendant], whom he said was a damn rascal; that he hated him on account of his marrying me, and taking my ducks to such a poor market; that, if he got a chance, he would make it hot for him, the little cur;” that she told her husband of this feeling of House towards him, and warned him to beware of House. We believe on another trial of this case said testimony should be admitted. As a general rule, it is admissible in a murder trial, where self-defense is set up, to show that the deceased entertained unfriendly feelings towards the defendant; but the details of conversation showing animosity are generally held inadmissible. But, if proof of hatred or unfriendliness is admissible we can see no reason why the very language conveying and giving color to this feeling should be held inadmissible. It shows the exact state of feeling; and where, as in this cause, it is a condensed statement of the reasons for the unfriendly feeling, it will not serve to incumber the record, and should be admitted where the evidence would serve the purpose of showing the exact state of feeling and reasons therefor by the deceased towards the defendant. If the animus of the deceased in this case was admissible as tending to support his theory as to who was the aggressor in the difficulty, we can see no reason why an expression of this animosity should not be held admissible. The motion for rehearing is granted, and the judgment is reversed and the cause remanded.

Motion granted. Reversed and remanded.

Hurt, Presiding Judge, absent.