Appellant was convicted of murder and his punishment assessed at five years confinement in the State penitentiary.
In the first bill of exceptions appellant complains of the action of the court in refusing to permit him to prove by Mayor Ben Campbell and some ten of the other leading citizens of Harris County that they had known him for many years and that he had always borne the reputation of being a peaceable, law-abiding citizen. When the appellant made this proof by one witness counsel for the State admitted in open court that appellant's reputation up to the time of this unfortunate occurrence was that of a peaceable, law-abiding citizen, and the court in his charge instructed the jury: "The defendant has offered to introduce testimony to prove his general character as being a peaceable and law-abiding citizen, and the State has admitted that the general reputation of the defendant as being a peaceable, law-abiding citizen is good, and you are therefore instructed that you will accept as true and as a proven fact that the general reputation of defendant in that regard is good." Under such circumstances there was no error in this ruling of the court. Beard v. State, 44 Tex.Crim. Rep.; Carver v. State, 67 Tex. Crim. 116, 148 S.W. Rep., 746.
We are inclined to think that the bill, wherein it is shown that the defendant offered to prove by a number of witnesses that his reputation for truth and veracity was good, presents error. Appellant had testified that he had known deceased for a number of years, and they had been friends until the first of the year preceding the homicide in December. Appellant lived at Hockley, and had charge of the telephone at that place. The office was in a room of the house where he resided. Appellant's daughter attended to the telephone and deceased often visited at the telephone office; would close the door and remain in the office for some time. His wife and others called his attention to the matter and said it was calculated to cause people to talk about their daughter. He went to deceased about this conduct, and this appears to be the first break in their friendly relations.
Other matters occurred, when deceased one day about the middle of February approached appellant with an ax handle in one hand and a pistol in the other and gave appellant a very severe whipping, inflicting such injuries that he had to be carried to a sanitarium, where he remained for about two weeks, and was then carried to the Larendon apartments, where he was confined by the injuries about a month longer. Appellant testified to many threats communicated to him at various times from that date until the day of the homicide; that just two days before the homicide deceased had come from Houston to Hockley, and while there drew a pistol on him and cursed him and that he ran. He testified to facts and circumstances that, if believed, would lead one to believe that he thought he was in constant danger from deceased from the time that deceased gave him the whipping until the date of the shooting. To offset this, the State, on cross-examination, asked him if while he was at the infirmary Charley Almond had not visited him and talked with him. He stated that Almond had visited him. He was then asked if during the conversation then held Almond had not told him, appellant, that he had talked with Hamilton (deceased) about this trouble, and he, Hamilton, was desirous of letting the matter drop and did not want any further trouble with appellant. Appellant replied that no such conversation occurred, and no such statement was made to him. Appellant was further asked if he did not say he did not want to make up with Hamilton, and he answered, "No." The State then offered Almond as a witness and had him testify that he did tell appellant that he had a conversation with defendant, and told him that deceased did not want any further trouble and desired to let the matter alone and have it settled for all time, and that appellant had said he would not let it drop and would see if something more could not be done to Hamilton. After this testimony had been introduced by the State the appellant then offered to prove that his reputation for truth and veracity was good by Otto Sens and some twenty-five other residents of Harris County. When this testimony was offered by appellant the court withdrew the testimony of Almond from the jury and refused to permit appellant to prove his reputation for truth and veracity, and after withdrawing Almond's testimony the court instructed the jury not to consider it for any purpose. It will be noticed that the testimony of Almond went to a vital part of his defense as made — that Hamilton had been constantly pursuing him, going armed all the time, threatening his life, which threats had been communicated to him, and followed by an attempt to execute them just two days before the homicide, when he, appellant, fled. Could, and was the harmful and hurtful effect of this testimony removed by its withdrawal? We do not think so. It had been deliberately introduced for the purpose of impeaching appellant, and breaking down his defense. It was on one of the vital issues in the case. It is a general rule when it is thus sought to impeach
and break down the testimony of the State or appellant, proof of general reputation for truth and veracity becomes admissible.
In several bills it is shown that appellant desired to prove that deceased when visiting Hockley from the date of the difficulty in February until the date of the homicide had a pistol on his person. The court permitted him to prove those instances where the parties came and told appellant about seeing deceased armed, but refused to permit the witnesses to testify to seeing deceased armed at other times from February to September, limiting such proof to only two months prior to the homicide. 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. We think the testimony, taking into consideration the threats of deceased and his actions on several occasions, rendered the testimony clearly admissible from and after the date of the difficulty until the day of the homicide, and on another trial this testimony will be admitted. It is true that deceased was not armed at the time he was shot, but appellant testified that he knew deceased was a man who habitually went armed; that he believed he was armed on the day of the homicide, and was reaching for his pistol when he shot, and this testimony about deceased going constantly armed from the date of the first difficulty until the final tragedy would aid the jury in passing on the reasonableness of appellant's testimony that he believed deceased was armed. It is true that he was permitted to testify to the occasion when others told him deceased was armed, but the issue being whether or not deceased was armed virtually all the time from the date of the difficulty in February until the date of the killing, this testimony should have been admitted. However, there was no error in excluding the testimony of isolated instances of deceased having a pistol on his person, which were unknown to appellant, prior to the difficulty in February, and the beginning of the strained relations between them.
Nor was there any error in excluding the testimony as to the assault or attempted assault on Oscar Becker, appellant's son, by deceased. It would shed no light on the transaction for which appellant was on trial, as appellant is not shown to have been made aware of it prior to the fatal meeting.
What appellant said to W.W. Baines some two hours prior to the difficulty was properly excluded.
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Appellant was convicted of murder and his punishment assessed at five years confinement in the State penitentiary.
In the first bill of exceptions appellant complains of the action of the court in refusing to permit him to prove by Mayor Ben Campbell and some ten of the other leading citizens of Harris County that they had known him for many years and that he had always borne the reputation of being a peaceable, law-abiding citizen. When the appellant made this proof by one witness counsel for the State admitted in open court that appellant's reputation up to the time of this unfortunate occurrence was that of a peaceable, law-abiding citizen, and the court in his charge instructed the jury: "The defendant has offered to introduce testimony to prove his general character as being a peaceable and law-abiding citizen, and the State has admitted that the general reputation of the defendant as being a peaceable, law-abiding citizen is good, and you are therefore instructed that you will accept as true and as a proven fact that the general reputation of defendant in that regard is good." Under such circumstances there was no error in this ruling of the court. Beard v. State, 44 Tex.Crim. Rep.; Carver v. State, 67 Tex. Crim. 116, 148 S.W. Rep., 746.
We are inclined to think that the bill, wherein it is shown that the defendant offered to prove by a number of witnesses that his reputation for truth and veracity was good, presents error. Appellant had testified that he had known deceased for a number of years, and they had been friends until the first of the year preceding the homicide in December. Appellant lived at Hockley, and had charge of the telephone at that place. The office was in a room of the house where he resided. Appellant's daughter attended to the telephone and deceased often visited at the telephone office; would close the door and remain in the office for some time. His wife and others called his attention to the matter and said it was calculated to cause people to talk about their daughter. He went to deceased about this conduct, and this appears to be the first break in their friendly relations.
Other matters occurred, when deceased one day about the middle of February approached appellant with an ax handle in one hand and a pistol in the other and gave appellant a very severe whipping, inflicting such injuries that he had to be carried to a sanitarium, where he remained for about two weeks, and was then carried to the Larendon apartments, where he was confined by the injuries about a month longer. Appellant testified to many threats communicated to him at various times from that date until the day of the homicide; that just two days before the homicide deceased had come from Houston to Hockley, and while there drew a pistol on him and cursed him and that he ran. He testified to facts and circumstances that, if believed, would lead one to believe that he thought he was in constant danger from deceased from the time that deceased gave him the whipping until the date of the shooting. To offset this, the State, on cross-examination, asked him if while he was at the infirmary Charley Almond had not visited him and talked with him. He stated that Almond had visited him. He was then asked if during the conversation then held Almond had not told him, appellant, that he had talked with Hamilton (deceased) about this trouble, and he, Hamilton, was desirous of letting the matter drop and did not want any further trouble with appellant. Appellant replied that no such conversation occurred, and no such statement was made to him. Appellant was further asked if he did not say he did not want to make up with Hamilton, and he answered, "No." The State then offered Almond as a witness and had him testify that he did tell appellant that he had a conversation with defendant, and told him that deceased did not want any further trouble and desired to let the matter alone and have it settled for all time, and that appellant had said he would not let it drop and would see if something more could not be done to Hamilton. After this testimony had been introduced by the State the appellant then offered to prove that his reputation for truth and veracity was good by Otto Sens and some twenty-five other residents of Harris County. When this testimony was offered by appellant the court withdrew the testimony of Almond from the jury and refused to permit appellant to prove his reputation for truth and veracity, and after withdrawing Almond's testimony the court instructed the jury not to consider it for any purpose. It will be noticed that the testimony of Almond went to a vital part of his defense as made — that Hamilton had been constantly pursuing him, going armed all the time, threatening his life, which threats had been communicated to him, and followed by an attempt to execute them just two days before the homicide, when he, appellant, fled. Could, and was the harmful and hurtful effect of this testimony removed by its withdrawal? We do not think so. It had been deliberately introduced for the purpose of impeaching appellant, and breaking down his defense. It was on one of the vital issues in the case. It is a general rule when it is thus sought to impeach
and break down the testimony of the State or appellant, proof of general reputation for truth and veracity becomes admissible.
In several bills it is shown that appellant desired to prove that deceased when visiting Hockley from the date of the difficulty in February until the date of the homicide had a pistol on his person. The court permitted him to prove those instances where the parties came and told appellant about seeing deceased armed, but refused to permit the witnesses to testify to seeing deceased armed at other times from February to September, limiting such proof to only two months prior to the homicide. 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. We think the testimony, taking into consideration the threats of deceased and his actions on several occasions, rendered the testimony clearly admissible from and after the date of the difficulty until the day of the homicide, and on another trial this testimony will be admitted. It is true that deceased was not armed at the time he was shot, but appellant testified that he knew deceased was a man who habitually went armed; that he believed he was armed on the day of the homicide, and was reaching for his pistol when he shot, and this testimony about deceased going constantly armed from the date of the first difficulty until the final tragedy would aid the jury in passing on the reasonableness of appellant's testimony that he believed deceased was armed. It is true that he was permitted to testify to the occasion when others told him deceased was armed, but the issue being whether or not deceased was armed virtually all the time from the date of the difficulty in February until the date of the killing, this testimony should have been admitted. However, there was no error in excluding the testimony of isolated instances of deceased having a pistol on his person, which were unknown to appellant, prior to the difficulty in February, and the beginning of the strained relations between them.
Nor was there any error in excluding the testimony as to the assault or attempted assault on Oscar Becker, appellant's son, by deceased. It would shed no light on the transaction for which appellant was on trial, as appellant is not shown to have been made aware of it prior to the fatal meeting.
What appellant said to W.W. Baines some two hours prior to the difficulty was properly excluded. His statements would be but self-serving declarations.
We think the 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. Appellant does testify that he had left the sanitarium and gone to the flats some two weeks prior to this incident, but the record also makes it plain that appellant's daughter, about whom the trouble arose, was then staying at the Baptist Sanitarium. It is true appellant testified he believed his girl was pure as the driven
snow, but deceased's visits to the place where this girl was at work had caused comment, and the fact he was keeping it up after she left home should have been permitted to be proven, for a father would resent more intensely a man conducting himself in a way to render his daughter subject to reproach and the tongue of scandal if she was a pure girl than if she had perhaps not been so pure in thought and deed.
We also think the testimony of Mrs. Gus Becker, the wife of appellant, should have been admitted. It is plain the unfriendly relations between appellant and deceased arose over deceased's conduct in going about his daughter so often. Had she been permitted she would have testified "that Gussie Becker was the unmarried daughter of witness and defendant; that prior to the assault made by deceased on the defendant on the 17th day of February, 1915, that said daughter, Gussie Becker, lived at the home of witness and defendant; that the telephone company had its public station at their home, and that their said daughter, Gussie, was the operator, and that prior to said assault and for several months prior thereto, deceased would go to the room where said telephone was located, and on several occasions shut the door and remain in the room with defendant's said daughter, Gussie Becker, sometimes as long as three hours, and was a frequent visitor to said room, to such an extent that it aroused the suspicion of witness, the mother of said daughter; that in the room at the time were two beds and that witness and defendant finally removed the beds from the room that deceased visited; that the visits to their daughter, Gussie, were so frequent that she called her husband's (defendant) attention to said fact and told him that the neighbors would likely talk about it, their daughter being single and deceased being a married man, and asked her husband (defendant) to go and speak to Hamilton (deceased) and ask him to desist from making such frequent and long visits as their actions were causing comment and would likely produce a scandal in the little village, and further, that her husband did speak to deceased in reference thereto and that the daughter became angry and left their home and has remained away ever since."
It is true, the court prevented her to so testify, but all persons who knew these facts should have been permitted to testify, for these circumstances were what brought about the unfriendly relations which culminated in the death of one of the parties.
We do not think that Elbert Roberts and J.E. Batte in their voir dire examination showed themselves qualified to testify to the general reputation of deceased as a man who went armed. It is made evident that it was but the opinion they held of the man from facts they personally knew, and from that fact alone.
There are several complaints of the charge of the court in the record, and while there is no error in the charge for which we would feel authorized to reverse the case, yet on another trial the court will apply the doctrine of reasonable doubt to the charges on threats and self-defense,
if excepted to, and requests for special charges to be given are made, as was done on this trial.
The judgment is reversed and the cause remanded.
Reversed and remanded.