Becker v. State

Upon thorough consideration of this case upon the State's motion for rehearing, I have reached the conclusion that the rehearing should be granted and the case affirmed instead of being reversed. The State's motion for rehearing, and the brief and argument thereon by the district attorney of Harris County and his assistants and the Assistant Attorney General, so well accords with my own views that I adopt it as my opinion. It is:

"1. This court erred in holding that appellant's tenth bill, relating to the refusal of the trial court to permit him to prove his good reputation for truth, presented error, because the same under all the circumstances did not present reversible error. Appellant was only contradicted and not impeached. And the testimony of Almond, which contradicted appellant's own testimony, was not only withdrawn from the jury, but the jury were charged verbally at the very time to accept the denial of appellant that he had such conversation, as true; and this instruction to the jury to accept the denial as true was also given in writing to the jury in the general charge. These instructions to the jury are not mentioned in the opinion and we think were overlooked in considering said bill; or else the effect of such instructions were not considered in determining whether the bill presented error. There was not a mere withdrawal of the testimony of Almond, as the opinion would seem to indicate, but the withdrawal of the testimony was accompanied by the instructions to the jury just mentioned and thus accomplished all, and more, and left appellant in a better light than mere testimony as to his reputation could have done. Suppose Almond's testimony did impeach appellant, the only question for the jury would be whether Almond or appellant was telling the truth, and the only object where a witness is impeached in offering testimony of his reputation for truth is to convince the jury that the impeached and not the impeaching witness was giving the truth. The supporting witnesses who testify to the good reputation for truth of the impeached witness do not purport to know the truth of the statement in dispute, and the jury might or might not infer that proof of good reputation showed that the impeached witness was correct, while in this case the contradictory statement of Almond is not only withdrawn, but the jury are directly and in terms told to accept as true the version of appellant. The object of appellant was accomplished. It should be presumed that the jury followed and obeyed the instructions of the court when nothing to the contrary is shown. The bill also shows that one witness, Jules Hirsch, had previously testified without objection that the general reputation of appellant for truth was good and that this testimony was never withdrawn. The State also urges that the testimony of Almond was not proving conflicting statements of appellant about a material fact, but was a mere conflict in the testimony. It is nowhere shown in the bill that appellant had given any version of a conversation with Almond which was favorable to himself. See Pettis v. State, 68 Tex. Crim. 221, 150 S.W. Rep., 792, where appellant, as here, denied making the statement, and Zysman v. State, 42 Tex.Crim. Rep., 60 S.W. Rep., 669, where the witness sought to be supported admitted making the statement, and see Jacobs v. State, 42 Tex. Crim. 353, 59 S.W. Rep., 1111. The fact that the testimony of Almond and appellant was in direct conflict would not authorize testimony of the good reputation of appellant for truth. Zysman v. State, 42 Tex.Crim. Rep., 60 S.W. Rep., 669. The trial court left the jury in no doubt as to the purported conversation with Almond and settled that issue squarely in favor of appellant by the oral and written direct instructions to the jury, and this, together with the withdrawal of Almond's testimony, prevented any error in the proceedings, and reinstated appellant and supported him more strongly on that matter than any number of mere reputation witnesses could have done. We also urge that the bill fails to show that the testimony of Almond tended to impeach appellant by proving his statements made out of court which were contradictory of his material testimony given on the trial. The time of this purported conversation with Almond was about fivemonths prior to the homicide, and was unimportant and was a mere contradiction upon an immaterial matter and upon which the jury were in effect instructed that appellant's version thereof was true and that Almond's was untrue, and this instruction was given by the court as a matter of law.

"2. Because the court erred in holding that proof of isolated instances of deceased having a pistol was admissible although appellant did not know and was not informed thereof, and in holding that such testimony would aid the jury in passing on the reasonableness of appellant's testimony that he believed deceased was armed at the time of the homicide. In passing on the several bills in which this matter was sought to be raised, the opinion reads: ``Why the court limited such proof to only two months prior to the homicide, when the evidence both for the State and defendant shows that the unfriendly relations began in February and continued until the date of the homicide, we can not understand.' In his ruling the trial court was more liberal to appellant than required by law, as will be seen if the real ruling of the court is ascertained from the bills and the qualifications thereof accepted by appellant. What were the facts?

"The bills are numbered ``2,' ``4' and ``5 1/2' and shows that the court permitted appellant to prove by himself and by other witnesses isolated and disconnected instances of deceased having or carrying a pistol at any time where it was shown that knowledge thereof was brought home to appellant by his own or other testimony, and, in addition to this, the court extended the rule and permitted appellant to prove any disconnected or isolated instances of deceased being seen with a pistol at any time within two months prior to the homicide, whether appellant knew of such instance or not. The only testimony excluded by the court was in refusing to permit appellant to prove disconnected and isolated instances of deceased having been seen with a pistol at times more than two months prior to the homicide where knowledge of the fact that deceased at such time having a pistol was not brought home to appellant by his own or other testimony. In Andrus v. State, 73 Tex.Crim. Rep., 165 S.W. Rep., 189, it was held that proof of isolated instances of deceased having a pistol is not admissible when it is not shown that such instances were known to the accused prior to the homicide. Similar to this is the ruling in Hysaw v. State, 69 Tex. Crim. 562, 155 S.W. Rep., 940. The ``reasonableness of appellant's testimony that he believed deceased was armed at the time of the homicide' could not be aided by proof of facts which were unknown to appellant when he shot deceased. What operated or could have operated on the mind of appellant when he killed deceased? Facts then unknown to him? Appellant made no claim that he knew of any instance excluded. What he did not know in no way could have influenced him. His claimed belief that deceased was armed at the time of the homicide could not have been possibly influenced by things he had never heard of. The bills themselves show that the testimony excluded was of wholly disconnected and isolated instances, few in number, and were in no way known to appellantwhen he slew the deceased, and we most respectfully urge that the court was in error in the original opinion, and that the trial court was not only correct, but was exceedingly liberal to appellant, and was following the former holdings of this court.

"3. Because the court erred in holding that the trial court should have permitted the appellant to prove that at the time deceased was arrested with a pistol on him he was near the Baptist Sanitarium, as complained of in the seventh bill of exceptions. This incident occurred on March 16th, prior to the homicide in September, and more than two weeks after appellant left the Sanitarium, and the State urges that in no event, in the light of the entire record, is the matter of such importance as to require a reversal, and the State further urges that the testimony excluded was in no way admissible for the purpose stated in the bill or for any other purpose, since appellant received the lowest term for murder, and the offer of this testimony was not coupled with any offer or claim that the homicide was on the first meeting after such incident, or that deceased there met or insulted the daughter of appellant, and the fact that it might, as stated in the original opinion in this case, have aroused resentment, would in no way have benefited appellant, but would have been proof of malice, and no claim of manslaughter was made on account of such occurrence, nor does the testimony raise the issue of manslaughter on the theory of an insult to a female relation of appellant. Much stronger testimony was held correctly excluded in the cases of Howard v. State, 23 Texas Crim. App., 265, 5 S.W. Rep., 231; Cockrell v. State, 32 Tex.Crim. Rep., 25 S.W. Rep., 421; Wright v. State, 36 Tex.Crim. Rep., 37 S.W. Rep., 732; McVey v. State, 81 S.W. Rep., 740.

"4. Because the court erred in holding that the testimony set out in the eighth bill of exceptions was admissible. This bill complains of the refusal of the trial court to permit appellant to prove by his wife that several months prior to the homicide the deceased would go to a room in which the daughter of appellant worked as a telephone operator, and on several occasions would shut the door and remain in the room where the young lady was, and that she called her husband's attention thereto and asked him to see deceased with reference thereto, and that her husband did so, and that their daughter became angry and left their home and has remained away ever since. This bill is qualified, and the qualification was accepted by appellant, with the explanation that the offer of said testimony was not coupled with any offer to prove that the homicide grew out of any insult to or relation of deceased with the daughter of appellant, and that appellant himself testified fully with reference to the same matters and testified all he desired to about his daughter and to his knowledge and information pertaining thereto, and further testified that the fact that deceased stayed in the telephone booth had nothing to do with the homicide, and that he thought and knew that his daughter was a pure girl. Appellant received the lowest term for murder, and the matters excluded occurred months before the homicide, and the proof showed that in fact appellant had met deceased many times since.

"The word ``meet' signifies that the parties were brought together into such proximity as would enable the defendant to act in the premises, whether he was armed or unarmed. Pits v. State, 29 Texas Crim. App., 374, 16 S.W. Rep., 189; Gillespie v. State, 53 Tex.Crim. Rep., 109 S.W. Rep., 158.

"Adequate cause may be proof of malice. Hicks v. State, 75 Texas Crim. Rep., 461, 171 S.W. Rep., 755; Pickens v. State,31 Tex. Crim. 554, 21 S.W. Rep., 362.

"It has been frequently held that it is not error to exclude testimony of insulting words or conduct of deceased toward a female relation of the slayer if the offer of this testimony is not coupled with any offer on the part of the defendant or his counsel to show that, prior to the homicide, the same was communicated to him and thereafter he killed the deceased on his first meeting with him. Howard v. State, 23 Texas Crim. App., 265, 5 S.W. Rep., 231; Cockrell v. State, 32 Tex. Crim. 585, 25 S.W. Rep., 421; Wright v. State, 36 Tex. Crim. 427, 37 S.W. Rep., 732; McVey v. State, 81 S.W. Rep., 740."