Benson v. State

103 S.W. 911, 51 Tex. Crim. 367, 1907 Tex. Crim. App. LEXIS 143

Opinions

HENDEBSOY, Judge.

Appellant was convicted of murder in the first degree, and his punishment assessed at death, from which judgment he prosecutes this appeal.

Briefly stated, the circumstances show that appellant and deceased were negroes, and on the night in question, which was about the 4th of September, 1906, both had gone out to one of the parks in San Antonio, and were returning to the city on the street car. Before taking the car and while still at the park, a wordy altercation occurred between appellant and a negro woman who was in the company of deceased. After all the parties got on the car this quarrel was resumed. The testimony of the State’s witnesses tends to show that appellant was the aggressor, and was insulting in his remarks to the sister-in-law of the deceased. Deceased, while the quarrel was going on, came from the rear toward the front of the car where appellant and his sister-in-law were and interfered; he told appellant in substance that he should not insult his sister-in-law, at which appellant abused him and told him he would see him (deceased) -later; that when the car arrived down town all the parties got off; in getting off appellant shoved the sister-in-law of deceased off the step, and as soon as he got off denounced the deceased and drew his pistol and shot three times; at the first shot deceased fell, and then appellant fired two other shots in rapid succession.

Appellant’s testimony tended to show that in the first quarrel between appellant and deceased’s sister-in-law, the woman was the aggressor in the quarrel and that deceased interfered with a knife in his hand and threatened appellant; told him in effect if he wanted anything to get off the car then and settle it. When they got to the point where the parties alighted from the car, after they started off, deceased turned and walked back towards appellant a few steps; appellant, who was standing on the sidewalk, apprehending danger, from an attack by deceased, shot him. This is a sufficient statement of the case in order to discuss the assignments.of error.

We do not deem it necessary to discuss the assignment of appellant with reference to the stenographic report of the testimony in the case. If it be conceded that appellant had a right to have the stenographic report, we do not see that he suffered any injury so far as the preparation of the motion for a new trial is concerned, as it appears to have been prepared carefully and covering all the necessary points.

We do not believe that the court erred in overruling the motion for a new trial based on the act of the court in regard to overruling the motion for continuance. The State’s witness Jefferson, it appears, on cross-examination, stated in answer to a question by appellant, that he did not take a knife off of the body of the deceased, and appellant says he wanted the witness Powers in order to prove by him that Jefferson told him that he did take a knife off of the deceased. This, at most, would be merely impeaching testimony, and a motion for a new trial is not ordinarily granted on account of the absence of such testimony. Besides, we fail to find in the record any bill of exceptions to the action of the court in overruling the motion for a new trial. In this connection, we notice on page 327 of the stenographer’s report what is entitled appellant’s bill of exceptions number 10. It appears counsel for defendant made a statement to the court that before announcing ready for trial he had a motion for continuance in his pocket, on the ground of the absence of Will Powers, and he told Mr. Baker he would present it, and that Mr. Baker agreed to admit the testimony which would be if he was here, so counsel for defendant understood, “that Robert Jefferson told him he took the knife off of the body of the dead man at that time.” Mr. Balcér agreed to admit that. The court: “The court didn’t know anything about.” Mr. Baker: “I said, there is no use admitting anything, because he was a fugitive from justice.” The court: “And I understood you to say, if you could only get Arthur Parrish you would go to trial, and there was no understanding, whatever, and I told you if you didn’t get Parrish you could withdraw your announcement of ready for trial, and I would entertain your motion.” Mr. Terrell: “We want to impeach Jefferson’s testimony, and asked him if he didn’t take the knife off the body of the dead man at that time. And we have here the motion for continuance.” The court: “I can’t help that.” Mr. Terrell: “We will ask time for writing another motion for continuance.” The court: “You can consider it as in, and I will overrule it.” Mr. Baker: "Deputy Sheriff Goforth informs me he remembers the conversation and that he remembers that I would not admit the testimony of Will Powers.” The court: “It must have been a misapprehension. You didn’t state what the testimony was to me at all, and, gentlemen, you will consider the motion refused, to withdraw your announcement, and all I said here is my reason for not granting it.” Now, we cannot make out of this a motion for continuance and the overruling of same. Indeed, we would furthermore make this observation with reference to a number of bills of exception taken to testimony introduced or rejected. The exceptions taken in the stenographer’s report appear to be in the shape of questions and answers, and at least a number of exceptions are in such a confused state as to leave it doubtful as to the nature of the exception. We have heretofore stated that we would not look through a record where the exceptions are scattered over a number of pages and not taken in such condensed and logical shape as to intelligently present the evidence excepted to and the ground for objection to same; and such we find to be the condition as to some of the exceptions claimed to have been taken in this record. It is decidedly the better practice to take separate bills of exception to the rejection or admission of testimony, or if these exceptions are taken in the statement of facts they must be "in such condensed and logical form as to present in an intelligent way the error complained of. See Stephens v. State, 15 Texas Ct. Rep., 937.

We note the action of the court with reference to the cross-examination of the witness Sarah Jones is assigned as error. It is insisted that this witness was a State’s witness, and that the court permitted the district attorney to cross-examine her on the alleged ground of surprise on the part of the district attorney at her testimony. On pages 167-8 of the stenographer’s report this matter is presented, and it appears therefrom that the court permitted the district attornejr to cross-examine said witness, and following this it appears the district attorney asked the witness some questions which may be considered in the nature of a cross-examination of said witness, but it is difficult to eliminate or determine what are and what are not leading questions. The right to cross-examine or to ask leading questions of one’s own witness is a matter within the discretion of the court when it appears the witness is hostile to the party calling such witness. The bill should show enough of the environments to point out the error of the court, and we do not believe this bill does so. In this connection we note that some exception was taken to the introduction of the inquest testimony of this witness, or at least using this inquest testimony by the State in the examination of said witness. Counsel for defendant objected, it seems, to further examination of the witness by the district attorney, claiming that there was no variance in the testimony of the witness at this trial and the testimony as contained in the statement of the witness at the inquest trial. The court stated, “But the district attorney is going on the theory that she did not testify to these other things at the inquest,”, and appellant excepted to this. The quesion was then" asked “Why didn’t you tell what you saw,” to which witness replied: “I told you what you asked me, and if you had asked me if I saw Miller in any position, I would have told you,” and then other questions and answers followed. Now, it is impossible to determine what was excepted to or how the exception was made or taken. In this connection we note that counsel for defendant objected to the introduction of certain inquest statements, on the ground that the witnesses whom the .State endeavored to impeach were not asked the same questions in the inquest proceedings by the district at torney as they were asked upon this trial, and, further, because the statements as testified to at the inquest proceedings had not been denied under oath by any one. This appears to apply to the inquest testimony of several witnesses, including Sarah Jones. We are not informed what questions were asked by the district attorney, and we do not know whether a predicate was laid for impeachment or not: nor are we informed what oath was referred to when it was said the testimony at the inquest proceedings had not been denied under oath by any one. Matters of this character should be definitely pointed out so that this court may know what it is expected to review or revise. Inquest proceedings can be referred to and used under certain conditions. Witnesses may be impeached by such testimony under certain conditions, and if those conditions do not exist, which authorize the use of this testimony, bills of exception must definitely and intelligently point out the matter complained of and why it was complained of. .We notice in appellant’s brief it is stated: “A close perusal of the testimony at the trial, and the proceedings at the inquest, will show that the only difference between the testimony at the two different times, was that upon the trial all the details were brought out, and of course many minor points were brought out which were not brought out at the inquest, and which naturally would not have been brought out, because the inquest was not for the purpose of going into all the details of the killing, but only to fix the cause of death.” If this be true, it appears to be a proper deduction, while it does not present any question for our consideration or afford any reason why the inquest testimony could not be offered. Such testimony could be offered by the State to contradict its own witness only where the witness testified to some affirmative fact against the State and to its surprise, or such testimony might be appealed to by the State to contradict a witness for the defendant under certain circumstances, but as far as we are advised from these bills of exception the matter is not presented to us in such shape as to be reviewed.

On page 364 of the stenographer’s report we notice a colloquy between counsel for the State and defendant and the court. The objection was made by the district attorney that in the examination of the witness Mary Lou Courtney by appellant the questions asked her were leading and the court held that appellant could prove by the witness the direction deceased was going with reference to appellant at the time he was shot, but not to ask leading questions. While s,ome questions were excluded on objection, we notice that appellant proved by the witness what he had a right to prove: the direction that deceased took or was taking at the time he was shot. We notice that the question asked to elicit this was leading, as follows: “Before the shooting, was he coming towards you when you first noticed him?” A. “He got off the car and went back of the car, when he' made two steps, about one or two steps towards us,” and subsequently she answered “When he got off, it threw him back of the car, and he went around and then made two steps toward us, but I don’t know what motions he made.” So there does not occur to us anything in this bill of exceptions.

It does not appear to us that there is anything in appellant’s bill of exceptions number 9, on page 314 of the stenographer’s report.

In the examination of Arthur Parrish, a witness for the defendant, the question was asked by the State on cross-examination: “Don’t you think there were a dozen there with eyes enough to see that knife? Mr. Camp: We objected to that. He is endeavoring to draw conclusions. Let him state the facts. Q. Don’t you know if there was any knife in his hand there a dozen people could have seen it? Mr. Camp: We object to that, it calls for a conclusion of the witness. The district attorney is holding me" down rigidly. The court: This is cross-examination, gentlemen. Mr. Camp: We will take a bill of exceptions, your honor.” How, it does not appear from this that even if it was conclusion of the witness as insisted on that the matter was prosecuted or any conclusion developed. Of course, we take it in cross-examination a witness could be asked who else was present at the time, and if others were present, if they could have seen or did see a knife.

On page No. 346 of the stenographer’s report appellant has his exception Ho. 11, in which it seems that appellant took objection because he was not permitted to have a witness reiterate his testimony. We think it is entirely competent for the court to put a limit to the examination of a witness and to prevent counsel from having him repeat again and again his testimony.

On page 374 of the stenographer’s report, we find exception Ho. 12, which appears to be to a ruling of the court on objection of the district attorney against appellant’s counsel asking leading questions: “Q. Were you still excited when you fired those three shots? A. Yes. sir. Q. And were you more excited at the second shot? The court: I don’t think you have a right to lead. Counsel objected to your leading. Don’t lead your witness. Let him state his frame of mind. Mr. Terrell: I would say to the court there had been no objection raised at that time to the question and stenographer’s report will show it, and I except to the court’s remarks. The court: I understood the district attorney to object. Mr. Baker: I objected, and I want to ask counsel not to lead the witness whether I object or not. The court: If he desires you to object, it is his privilege. Mr. Baker: I will make a standing objection. Mr. Terrell: I take exception to the remarks of the court, that the counsel for defendant seemed to be determined to have their way. The court: That’s your own gratuitous remark, I never said anything of the kind, sir. Mr. Terrell: We take exception to that.” Of course, there is nothing in this colloquy of an erroneous character so far as appellant is concerned.

zXppellant objected to a portion of the 8th paragraph of the court’s charge, to wit: “There is, however, no definite space of time necessary to intervene between the formed designed to kill and the actual killing; a single moment of time may be sufficient.” This is a part of the definition of express malice and in the connection in which it appears in subdivision 8 of the court’s charge it was not error. As an abstract proposition, it is correct and under the circumstances of this case it was applicable, because the parties being strangers and no previous grudge being shown, the killing occurring on the first meeting, the question of time would be a factor in forming the intent. The court in the connection in which this part of the definition was given informed the jury that they must believe beyond a reasonable doubt that the killing was the consummation of a previously formed design; that the design to kill was formed deliberately, with a sedate mind, that is at the time when the mind of the person killing was self-possessed and capable of contemplating the consequences of the act proposed to be done, etc.

This portion of the court’s charge is objected to: “If from the evidence you believe the defendant killed the said Albert Miller, but further believe that at the time of so doing the deceased had made an attack upon him, which from the manner and character of it and the relative strength of the parties and the defendant’s knowledge of the character and disposition of the deceased, caused him to have a reasonable expectation' or fear of death or serious bodily injur;', and that acting under such reasonable expectation or fear, the defendant killed' the deceased, then you should acquit him.” Appellant insists the charge is erroneous because it made defendant’s right to an acquittal depend upon the knowledge and character and disposition of the deceased, there being no proof as to the character and disposition of the deceased and that the defendant had knowledge thereof, and furthermore it was not claimed that the deceased had attacked the defendant, but that the proof along this line shows that he was attacking him, and the effect of the charge was to put the burden on the defendant to show that he had been attacked. With reference to the last proposition, it occurs to us to make very little difference whether deceased had attacked or was then attacking appellant. If it be conceded that the testimony suggests self-defense at all as predicate on the attack, the deceased turning, and, according to his witnesses, going in the direction of appellant being an attack, it could not certainly injure appellant that the court told the jury if they believed appellant had made an attack; this was certainly not inconsistent with the idea that deceased was then making the attack. Certainly the jury were not misled as to this matter or as to appellant’s rights in connection with the character of the attack. In regard to the other proposition, in support of his contention, appellant refers us to Wallace v. State, 97 S. W. Rep., 471; Hickey v. State, 76 S. W. Rep., 921, and Brady v. State, 65 S. W. Rep., 521, and some other cases. While it may be conceded that a charge of this character should not be given in the absence of some testimony suggesting the character of deceased and appellant’s knowledge thereof, the question presented here is, was, this charge, though in the absence of any testimony regarding deceased’s character, such as to have injuriously affected appellant’s rights. The question presents itself in common sense point of view: would the; ordinary juror believe from this charge that there must be in evidence'some testimony in regard to the character and disposition of the deceased, and some evidence of the relative strength of the parties, and knowledge thereof on the part of appellant before he could avail himself of the right of self-defense. To so hold, it occurs to us, would be to impute to the jurors a lack of ordinary intelligence, but beyond this, while the court gave a charge on self-defense in favor of appellant, both the one quoted above and the succeeding one coupled with threats to take life, we do not believe that the record, as here presented upon this point, entitled appellant to a charge on this subject at all. So far as the testimony of the State’s witnesses are concerned, as to this homicide, it was an unprovoked murder. These witnesses show that appellant was the aggressor from start to finish; before the parties got on the street car, appellant asked Beulah Miller, who was a stranger to him, who was her man, and she replied that she did not have a man, that she was married, and appellant replied that he did not know whether she was a man or a woman; did not know whether she was married or not. After the respective parties got on the car appellant again renewed his insults, and deceased then went from the rear of the car where he-was sitting to the front where the altercation was going on, and asked- him not to insult that girl, that she was; his sister-in-law,- and appellant said that he would see him again; that after this he pulled his hat down over his eyes, and subsequently all the parties got off the car, and that as Beulah was, getting off the car, appellant shoved her off and walked around to where deceased was, and stated, “You are the son-of-a-bitch that acted so flip,” and as Albert Miller turned to see what he was saying, appellant shot him and he fell, and appellant shot at him twice more in rapid succession. Now, appellant’s version is stronger than that of any other witness on his behalf, and he tells about the difficulty and homicide substantially, as follows: That as he came up in the park to where they were to take the car with his crowd, they passed the other crowd, and Beulah Miller cursed and “I said, ‘Who was that cursed ?’ and she turned and said ‘Hush up, nigger, no one is talking to you,’ and she said, ‘If you fool with me, I’ll slap your head with this stick,’ and I said T guess you won’t,’ and she said, T wouldn’t have a nappy headed nigger like you. I’ve got a white man as my man,’ and I said, T thought so. You are dressed in white,’ and she said, ‘Aren’t you sorry your mother ain’t got a white man ?’ and I said I’ve got no mother,’ and then she said the same about mv sister, and I told her T had no sister.” That after they got on the car Beulah kept hurrahing him, but he said no more to her, and Albert came up to where they were with his left hand holding to the car and with his right hand with his knife down by his leg, and said, “You black son-of-a-bitch, don’t you interfere with this girl,” and I said, “No, wait a minute and I’ll tell you how it was,” and he said, “No, you needn’t tell me how it was, you black son-of-a-bitch, if you open your mouth again I will kill you,” and “I said, ‘That’s all right. That’s all right,’ and I' didn’t say any more. Then he went to the back end of the car, and when we got to Houston and Soledad, I got off the car, and Sarah Jones gets off, and Mary Lou Courtney gets off, and so did Emmet Polk, and we stood on the sidewalk on Soledad, and Albert Miller,—he was on the back, he gets off and turns round and starts towards the Fulton market, and I was standing there”; that he was watching Miller because of what he said on the car; that Albert got about three steps from the car line and then turns around with his hand that way (showing position) and takes about three steps, and that he fired. Appellant was about three feet from him when he fired; he fired two more shots in rapid succession. At the second shot deceased was standing there, and after the second-shot fired he was down. There is no claim that deceased said anything, or that appellant saw him- have a knife in his hand. Appellant was asked the question: “You did not know whether he had a knife in his hand at that time or not?” and he answered in the negative. Now, on this character of testimony it is claimed appellant had a right to act in self-defense against an immediate attack then being made on him by deceased, which threatened his life or his person with serious bodily injuiy. It will be observed that no knife was found on deceased, much less an open knife in his hand after he was killed. Giving full stress to all that appellant says deceased did on that occasion, it occurs to us that the testimony suggesting self-defense, to say the most of it, is exceedingly weak; and to hold that (notwithstanding the court gave a charge on self-defense without threats, and one based on threats, because in the former reference was made to the relative strength of the parties and the character of deceased, when there was no testimony in the record on this subject) this case should be reversed, would be to put a premium on the assumed ignorance of the jury. We hold that while said charge was erroneous under the circumstances of this case, it was not of a character to injure or prejudice the rights of appellant. It does not occur to us that there is anything in the conduct of the district attorney as is complained of by appellant that would authorize a reversal of this case.

There being no errors in the record, the judgment is affirmed.

Brooks, Judge, absent.

Affirmed.