Fossett v. State

Appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of twenty years, and he prosecutes this appeal.

Appellant's first assignment of error involves the action of the court overruling his motion for continuance, which was again brought to the attention of the court in the motion for new trial. The application for continuance was based on the absence of Lee Holloway and Walter Jones. Appellant's main defense was that the killing was only manslaughter, because deceased had made remarks of an insulting character in regard to his (appellant's) wife and stepdaughter, and that these remarks were communicated to him on the day of the homicide; that the killing occurred on his first meeting with deceased thereafter. Appellant proved by two witnesses, Kinney and Hanna, the insulting language by deceased to them regarding appellant's female relatives, and the communication thereof by them to appellant on the day of the homicide. An attack was made by the State on the testimony of these witnesses, against Kinney on the ground that he had formerly been a partner of appellant, and against Hanna by direct impeachment. This was the first application for continuance, and, while neither of the absent witnesses communicated to appellant the conversations by deceased with them in regard to the character of appellant's wife and daughter, yet the declarations made by deceased to them were on different occasions, and so not strictly cumulative, and are of the same character, and so would have tended to corroborate the two witnesses of defendant who testified on the trial. It occurs to us that this testimony was of a material character, and that the diligence used to secure their evidence was reasonable.

Over appellant's objections, F.A. Miller was permitted to testify that a few minutes prior to the homicide appellant remarked to him (witness) that he would like to have a saloon out in the country, so he might shoot a bartender in the belly. It was shown in this connection that deceased was not present, and the conversation was not concerning him; that he was not a bartender; and that the remark was made in a jocular way. The court, approving the bill, states that he admitted the testimony because the conversation occurred a very short time, perhaps not exceeding two minutes, before the killing, and after defendant had been told that deceased had been talking about him and his family relatives, and that the testimony was admitted as throwing light upon the state of mind of the defendant. We do not think the court's explanation rendered this testimony admissible. While it is always important to show the state of mind of defendant before the killing, as indicating malice, yet this state of mind must in some manner be directed towards deceased, either by direct expression, or the remark must, within its scope, embrace deceased. Neither of these conditions are shown here. It was not directed towards him by name, nor did it embrace him by intendment, inasmuch as deceased was not a bartender. There was no malignity in the remark, as the witness testified it was jocular. Still it can not be said the remark was without injury to appellant. It may have suggested to the jury that he was a bloodthirsty man, and wanted to kill somebody. In our opinion, it was not admissible. Godwin v. State, 38 Tex.Crim. Rep.; Strange v. State, 38 Tex.Crim. Rep.; Holley v. State,39 Tex. Crim. 301.

Appellant contends the court erred in admitting the testimony of the witnesses Mrs. Nichols, John Fresher, Miss Rabb, and T.C. Andrews as to statements made by deceased, prior to the killing, and prior to the testimony adduced by the State of insulting language by deceased towards appellant's female relatives, and not in the presence and hearing of appellant, to the effect that Mrs. Fossett and her daughter (wife and stepdaughter of appellant) were nice people; that he spoke of them in the highest terms, and said there were no better people than Mrs. Fossett and her daughter. Appellant objected to all this testimony, on the ground it was hearsay, and not made in the presence of appellant or communicated to him, and that it was irrelevant and prejudicial to appellant. The court approved these bills. As to one of them he appended the following explanation: "That it was a question in the case as to what deceased's statement was with reference to Mrs. Fossett and her daughter, and the defendant had introduced Mrs. Fossett, who had sworn that deceased made a threat, on leaving her house, to get even with her some time, and said testimony of Mrs. Fossett was offered to show that deceased had from that time to the day of his death entertained an ill will towards Mrs. Fossett, and in this manner to give support or plausibility to the contention that deceased did talk to Hanna and Kinney as testified to by them, and said testimony was admissible to throw light, if the jury believed it, or throw light on the question as to whether deceased entertained malice towards Mrs. Fossett." In making this explanation, in our opinion, the court struck the keynote as to its inadmissibility; that is, the effect of said testimony was to suggest to the jury that Hanna and Kinney could not have spoken the truth when they testified as to the statements made by deceased regarding appellant's wife and daughter, and so to discredit their evidence. It will be noted that these conversations which the State was permitted to introduce were no part of the conversations testified about by Kinney and Hanna, but were had long before the declarations of deceased about which they testified; and the fact that deceased may have made complimentary remarks about appellant's wife and daughter previously was not relevant, and was not legal evidence as tending to show that the testimony of these two witnesses was not true, but might be taken by the jury as tending to countervail and disparage their evidence. In our opinion, neither was the testimony admissible as tending to contradict Mrs. Fossett. It was no part of the conversation about which she testified, but made at a different time and place, and there was no attempt on the part of the court to even confine said testimony to a refutation of her evidence.

John Hanna was an important witness for defendant. The State called R.F. Milam to impeach said witness for truth. This witness qualified by stating he was acquainted with the general reputation of the witness Hanna in the community where he lived for truth, and then stated it was bad. On cross-examination of this witness by defendant, it was developed that he had never heard the reputation of the witness Hanna discussed until after the homicide in question. Appellant then moved to exclude the testimony of this witness in regard to the reputation of Hanna for truth, which the court refused to do, and appended an explanation that there was nothing to make it appear that the reputation about which Milam testified concerning the witness Hanna was discussed in connection with the case on trial, and further stated that "the fact the witness learned or heard of the reputation of the witness Hanna since the examining trial did not show that it was made because of anything testified by Hanna on the examining trial." Appellant contends that this testimony was not admissible, because the reputation of a witness for truth is confined to his reputation anterior to the offense about which he testified, and in this connection he refers us to a number of authorities. None of those accessible occur to us to be in point. Reid v. Reid, 17 New Jersey Equity, 103, seems to be the nearest. The facts are not stated, and what we gather from the opinion is simply that the court held it was not competent for a witness to testify to reputation founded on opinions expressed by others since their former examination in the case; and, furthermore, that it is not competent to send a stranger into the neighborhood of the residence of the witness for the purpose of procuring evidence in the case, and who details the opinions of others thus obtained. And the court then stated that no rule is better settled or founded on clearer principles than that which excludes the testimony touching reputation founded on opinions expressed post litem motam. This opinion refers to 1 Greenleaf, section 461, which merely states the general rule that a witness can be impeached by proof that his general reputation for truth was bad in the neighborhood where he lived. Douglass v. Tousey, 2 Wendell, 352, also referred to, is a case of slander, where it was not permitted to prove the general bad character of plaintiff subsequent to the time the alleged slander was uttered, confining such proof prior to that time. The court also stated that the practice of sending a witness into a community to procure testimony in regard to the character or reputation of a party, and then testify to same, after the fact, is not permissible. Such witness should be acquainted with the character, and come from that community. And so in Hopperwood v. State, 39 Texas Criminal Reports, 15. The proof of character offered was the character of defendant for honesty in the community where he lived. It appeared that this proof was acquired by the witness subsequent to the commission of the alleged offense, and we there held such testimony was not admissible. We quote as follows: "Where a defendant is on trial, it is his character prior to the commission of the offense that may be inquired into, and not the character he may have acquired after the commission of the alleged offense, or what was said about his character after that time." We believe the rule there laid down is sound and logical, and should control wherever defendant's character for the trait involved in the accusation is made the subject of inquiry. But here a different question arises; that is, the character of the witness for truth and veracity. The jury are the judges of that, and the question is whether he is entitled to be believed at the time the witness testified, and not at some prior time. Under our system, a witness may testify in the case long after the occurrence, and not infrequently it may be several years before his testimony is produced before the jury, and to hold that an inquiry should not be made as to his reputation for truth and veracity in the neighborhood where he lived at that time, it occurs to us, would be violative of sound principle. True, there may be some danger of fabrication by interested parties subsequent to the transaction about which he testifies, yet, on cross-examination, or the examination of other witnesses, this can always be probed into, and the sources from which the witness may have derived his information shown, in order that the jury may weigh his impeaching evidence. This furnishes no reason why the rule as to the general reputation of a witness for truth may not embrace such reputation up to the very time the witness testifies. In this action of the court there was no error.

When H.S. Dillard, county attorney of Bosque County, was on the stand, the prosecuting attorney, on cross-examination, proved that he was paid $50 by certain parties in Bosque County to make an investigation of the case against appellant, to determine whether or not it would be safe for the parties who employed him to go on appellant's bond. On re-examination, defendant desired to prove by said witness that he advised his clients it would be safe to go on the bond. This testimony was objected to by the State, and the witness was not permitted to testify. The court, in approving this bill, says "that to have allowed the witness to answer this question would have put before the jury the opinion of the witness as to the merits of the case, which was evidently improper, and the cross-examination of the county attorney did not warrant the admission of this evidence." It occurs to us, if it was relevant to any issue in the case for the State to show by the witness Dillard that he was employed to ascertain whether or not his clients would be safe in going on appellant's bond, that it was equally competent for the witness to state the result of that investigation. Evidently the purpose of the State was to leave the impression on the jury that the witness, after making the investigation, had advised his clients not to go on the bond. It was certainly competent for the defendant to remove this impression from the minds of the jury by competent testimony. In our view, however, none of this testimony was competent.

When Frank Fossett was on the stand on his own behalf, he was asked this question by his counsel: "Was there anything done by deceased calculated to show that he was trying to get your gun? If so, what?" This question was objected to on the ground it was leading, and the court sustained it. We are inclined to the view that this question as presented was somewhat leading in character. Inasmuch, however, as it is not stated what the answer of the witness would have been, we are not called on to decide this matter. The other bill, presenting this matter more fully, was refused by the court, and consequently we can not consider it.

Appellant objected to the twenty-seventh paragraph of the court's charge, which is as follows: "But in this connection you are instructed that, if you believe from the evidence that the defendant had heard that deceased had used insulting words towards or concerning defendant's female relations, and that upon meeting deceased defendant asked him about it and he replied as above mentioned, but believe that neither such information as to insulting words, nor the reply of the deceased, nor any other fact or circumstance, produced at that time the degree of passion herein defined as being necessary to reduce a homicide to the degree of manslaughter, but that in the absence of and without any such passions, and not in his self-defense, defendant kicked the deceased, with the intention of bringing on a difficulty, for the purpose of killing the deceased in such a difficulty, or inflicting serious bodily harm upon him, and that during such difficulty defendant, in pursuance of such intention, if any, did shoot and kill deceased, then the homicide would not be manslaughter, but would be murder; and, if you find such was the case, — that is, that such was the state of facts, and such was the state or condition of defendant's mind, and such was the intention of defendant at the time he kicked deceased, — then the killing would not be manslaughter, but would be murder, no odds to what extremity defendant may have been reduced during the progress of the difficulty, and no odds what passion may have been aroused during the difficulty." It will be noted that preceding said charge the court had already charged on manslaughter in connection with the same facts embodied in the twenty-seventh paragraph, above quoted. But in said preceding charge the court advised the jury that if, by means of the facts stated, defendant was moved to such a degree of anger, etc., as to be rendered incapable of cool reflection, and under such passion he kicked deceased, and in the difficulty which followed shot and killed deceased, defendant would then not be guilty of any higher grade of homicide than manslaughter. We understand the twenty-seventh paragraph of the court's charge merely to inform the jury that, notwithstanding the facts stated, if defendant's mind was not excited by passion, but he was capable then of cool reflection, and he formed the intent to kill under such circumstances, he would not be guilty of manslaughter, but of murder. In this we do not believe there was error. There are other assignments of error, but, in the view we take of the case, it is not necessary to discuss the same. For the errors pointed out, the judgment is reversed and the cause remanded.

Reversed and remanded.