Appellant was indicted for the murder of his brother-in-law, Mike Manning. On a trial he was convicted of manslaughter and his penalty fixed at five years in the penitentiary.
One of the State's most material witnesses was Bill Lee, who gave pertinent testimony against appellant. He and appellant's brother, Philip Burnaman, were together near Philip's house at the time appellant killed deceased. Immediately after the killing appellant went from the scene to said Lee and appellant's brother Philip and made certain res gestae statements to them. The State introduced Bill Lee when first opening and presenting its case. He at that time fully testified to said res gestae statements. After introducing other testimony the State rested. Appellant thereupon, among other witnesses, introduced his brother, Philip Burnaman, who was a most material witness for appellant, and gave pertinent and strong testimony in his favor, disputing, in part at least, the testimony of said Bill Lee as to said res gestae statement, and adding thereto material and strong testimony tending to establish appellant's most material defense, which was self-defense. The State in crossing appellant's brother, Philip, did not ask him if he had attempted to get said Lee to testify as he, Philip, did as to said additional material res gestae statement, or what appellant had said to them and exhibited to them immediately after said killing. In rebuttal after appellant had closed his testimony, the State reintroduced said Lee, who testified denying pointedly the testimony of appellant's brother Philip as to said additional claimed res gestae statement. (The court, in approving appellant's bill raising this question, allowed it in connection with the full statement of the evidence as shown by the statement of facts.) The witness, Philip Burnaman, after having testified for appellant, was excused by the court from further attendance with notice to both parties, and had gone to his home some miles distant, and his further attendance was not had, and he was not again placed on the stand. We here quote in full what then occurred and what said witness Lee testified:
"State: Now the other question we want to ask this witness in regard to the statement of that absent witness, we can't do it unless we have him here to ask the question. Court: Well, if that is all stand him aside. State: We will ask the question. Defendant: We object if there is no predicate laid. State: It is a question I don't think a predicate has to be laid for, the court can pass on that proposition. Q. I will ask you whether or not since the morning of the homicide there, that means the killing, after you met Sam, since that time the brother of Sam, that is, Philip, has approached you and told you that you and him must get together and understand this matter alike so
that you could tell it alike when you came to court? A. Yes, sir. Defendant: We object to that; that is certainly not impeaching testimony to begin with, and if there is any — all right go ahead, we don't care.
"Philip has talked to me twice about that. In the conversation with Philip he undertook to call my attention to the fact and asked me if I didn't see cut places there; that was a day or so, a couple of days after the killing taken place, I went back up there to work, and he says, `Didn't Sam show us that cut place on his jumper?' and I says, `No, he didn't show it to me,' and he says, `I saw it somewhere,' and says, `It seems to me like it was when he come up here,' and he says, `You want to understand this has got to go to court,' and I says, `Well, I know it, I have been summoned to go to court.'
"Q. And what was it he said to you when he was talking that you answered while ago that you must get together on the matter? Defendant: We object to that. Court: What was it? State: I asked him what was it the brother, Philip, said about getting together. Defendant: Go ahead and relate it again. A. I started to preaching one evening, and Philip saw me coming and come and met me and he stopped me and says, `You know this little thing is going to be in before the grand jury now right away and we want to get together —' Defendant: We object because this is the statement between two witnesses in the absence of the defendant. Court: It only goes to the credibility of the witness. Defendant: There is no predicate laid for it. Court: I don't think it is a character of matter that requires a predicate. Defendant: We except to the ruling of the court. `And he says we want to get together and tell this matter so we can tell it alike,' and I told him that I had done told it once just like I saw it — that was the way I was trying to tell it, and I rode off and left him standing there in the road. After Sam came up there where me and Philip were after the shooting and on that same morning before the body was moved I saw Sam Burnaman again, he was leading his horse as we were moving Mike, we met him coming leading his horse out of the pasture, we were in about seven or eight steps of him; I don't know whether his jumper was buttoned at that time or not; I didn't notice anything wrong with his clothes or torn places anyway, but I didn't notice him much because I was helping carry Mike. I never at either of those times noticed that, his clothing were torn and his breast open or anything of that kind?
By his second bill appellant claims that the court committed reversible error in failing and omitting to limit the effect of the said testimony of Bill Lee to impeachment purposes alone of his brother Philip.
His contention is that it is error for the court to have permitted, over his objections, the State to prove that his brother Philip undertook to persuade said Lee to change or manufacture his testimony, unless it be shown that he was connected with or authorized the same. The State contends that this testimony by Lee was admissible as original
evidence for the purpose of showing the bias and interest of Philip in his brother's favor; that it shows or tends to show the motive of Philip in testifying as he did in appellant's favor.
It has many times been decided by this court, and we think it is elementary that the "motives which operate upon the mind of the witness when he testifies are never regarded as immaterial or collateral matters. A party may prove declarations of the witness which tend to show his bias, interest, prejudice, or any other mental state or status, which, fairly construed, might tend to affect his credibility." (Pope v. State, 65 Tex.Crim. Rep., 143 S.W. Rep., 611, and cases therein cited and principles therein held.) The rule is that the hostility of a witness towards a party against whom he is called may be proved by any competent evidence. It may be shown by cross-examination of the witness or other witnesses may be called who can swear to facts showing it. In People v. Brooks, 131 N.Y. 321, the rule is thus stated: "The hostility of a witness towards a party against whom he is called may be proved by any competent evidence. It may be shown by cross-examination of the witness, or witnesses may be called who can swear to facts showing it. There can be no reason for holding that the witness must first be examined as to his hostility, and that then, and not till then, witnesses may be called to contradict him, because it is not a case where the party against whom the witness is called is seeking to discredit him by contradicting him. He is simply seeking to discredit him by showing his hostility and malice, and as that may be proved by any competent evidence, we see no reason for holding that he must first be examined as to his hostility." This rule was again reasserted in Brink v. Stratton, 176 N.Y. 150.
Mr.
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Appellant was indicted for the murder of his brother-in-law, Mike Manning. On a trial he was convicted of manslaughter and his penalty fixed at five years in the penitentiary.
One of the State's most material witnesses was Bill Lee, who gave pertinent testimony against appellant. He and appellant's brother, Philip Burnaman, were together near Philip's house at the time appellant killed deceased. Immediately after the killing appellant went from the scene to said Lee and appellant's brother Philip and made certain res gestae statements to them. The State introduced Bill Lee when first opening and presenting its case. He at that time fully testified to said res gestae statements. After introducing other testimony the State rested. Appellant thereupon, among other witnesses, introduced his brother, Philip Burnaman, who was a most material witness for appellant, and gave pertinent and strong testimony in his favor, disputing, in part at least, the testimony of said Bill Lee as to said res gestae statement, and adding thereto material and strong testimony tending to establish appellant's most material defense, which was self-defense. The State in crossing appellant's brother, Philip, did not ask him if he had attempted to get said Lee to testify as he, Philip, did as to said additional material res gestae statement, or what appellant had said to them and exhibited to them immediately after said killing. In rebuttal after appellant had closed his testimony, the State reintroduced said Lee, who testified denying pointedly the testimony of appellant's brother Philip as to said additional claimed res gestae statement. (The court, in approving appellant's bill raising this question, allowed it in connection with the full statement of the evidence as shown by the statement of facts.) The witness, Philip Burnaman, after having testified for appellant, was excused by the court from further attendance with notice to both parties, and had gone to his home some miles distant, and his further attendance was not had, and he was not again placed on the stand. We here quote in full what then occurred and what said witness Lee testified:
"State: Now the other question we want to ask this witness in regard to the statement of that absent witness, we can't do it unless we have him here to ask the question. Court: Well, if that is all stand him aside. State: We will ask the question. Defendant: We object if there is no predicate laid. State: It is a question I don't think a predicate has to be laid for, the court can pass on that proposition. Q. I will ask you whether or not since the morning of the homicide there, that means the killing, after you met Sam, since that time the brother of Sam, that is, Philip, has approached you and told you that you and him must get together and understand this matter alike so
that you could tell it alike when you came to court? A. Yes, sir. Defendant: We object to that; that is certainly not impeaching testimony to begin with, and if there is any — all right go ahead, we don't care.
"Philip has talked to me twice about that. In the conversation with Philip he undertook to call my attention to the fact and asked me if I didn't see cut places there; that was a day or so, a couple of days after the killing taken place, I went back up there to work, and he says, `Didn't Sam show us that cut place on his jumper?' and I says, `No, he didn't show it to me,' and he says, `I saw it somewhere,' and says, `It seems to me like it was when he come up here,' and he says, `You want to understand this has got to go to court,' and I says, `Well, I know it, I have been summoned to go to court.'
"Q. And what was it he said to you when he was talking that you answered while ago that you must get together on the matter? Defendant: We object to that. Court: What was it? State: I asked him what was it the brother, Philip, said about getting together. Defendant: Go ahead and relate it again. A. I started to preaching one evening, and Philip saw me coming and come and met me and he stopped me and says, `You know this little thing is going to be in before the grand jury now right away and we want to get together —' Defendant: We object because this is the statement between two witnesses in the absence of the defendant. Court: It only goes to the credibility of the witness. Defendant: There is no predicate laid for it. Court: I don't think it is a character of matter that requires a predicate. Defendant: We except to the ruling of the court. `And he says we want to get together and tell this matter so we can tell it alike,' and I told him that I had done told it once just like I saw it — that was the way I was trying to tell it, and I rode off and left him standing there in the road. After Sam came up there where me and Philip were after the shooting and on that same morning before the body was moved I saw Sam Burnaman again, he was leading his horse as we were moving Mike, we met him coming leading his horse out of the pasture, we were in about seven or eight steps of him; I don't know whether his jumper was buttoned at that time or not; I didn't notice anything wrong with his clothes or torn places anyway, but I didn't notice him much because I was helping carry Mike. I never at either of those times noticed that, his clothing were torn and his breast open or anything of that kind?
By his second bill appellant claims that the court committed reversible error in failing and omitting to limit the effect of the said testimony of Bill Lee to impeachment purposes alone of his brother Philip.
His contention is that it is error for the court to have permitted, over his objections, the State to prove that his brother Philip undertook to persuade said Lee to change or manufacture his testimony, unless it be shown that he was connected with or authorized the same. The State contends that this testimony by Lee was admissible as original
evidence for the purpose of showing the bias and interest of Philip in his brother's favor; that it shows or tends to show the motive of Philip in testifying as he did in appellant's favor.
It has many times been decided by this court, and we think it is elementary that the "motives which operate upon the mind of the witness when he testifies are never regarded as immaterial or collateral matters. A party may prove declarations of the witness which tend to show his bias, interest, prejudice, or any other mental state or status, which, fairly construed, might tend to affect his credibility." (Pope v. State, 65 Tex.Crim. Rep., 143 S.W. Rep., 611, and cases therein cited and principles therein held.) The rule is that the hostility of a witness towards a party against whom he is called may be proved by any competent evidence. It may be shown by cross-examination of the witness or other witnesses may be called who can swear to facts showing it. In People v. Brooks, 131 N.Y. 321, the rule is thus stated: "The hostility of a witness towards a party against whom he is called may be proved by any competent evidence. It may be shown by cross-examination of the witness, or witnesses may be called who can swear to facts showing it. There can be no reason for holding that the witness must first be examined as to his hostility, and that then, and not till then, witnesses may be called to contradict him, because it is not a case where the party against whom the witness is called is seeking to discredit him by contradicting him. He is simply seeking to discredit him by showing his hostility and malice, and as that may be proved by any competent evidence, we see no reason for holding that he must first be examined as to his hostility." This rule was again reasserted in Brink v. Stratton, 176 N.Y. 150.
Mr. Underhill, in his excellent work on Criminal Evidence, section 248, says: "The bias of the witness and his interest in the event of the prosecution are not collateral and may always be proved to enable the jury to estimate his credibility. They may be proved by his own testimony upon cross-examination or by independent evidence. . . . The bias of the witness may be shown either by independent testimony or by questions put to him on his examination." This court has expressly held this in several decisions. Cockrell v. State, 60 Tex.Crim. Rep.; Porch v. State, 51 Tex.Crim. Rep.; Bonnard v. State, 25 Texas Crim. App., 173. So has our Court of Civil Appeals at Galveston. Trinity Co. Lumber Co. v. Denham, 29 S.W. Rep., 553. To the same effect see also People v. Mallon, 116 N.Y. Ap. Div., 425, affirmed in 189 N.Y. 520; Morgan v. Wood, 53 N.Y. Sup., 791. In 30 Ency. of Law (2 ed.), 1127, it is said: "In some States evidence showing that a witness is interested in the result of litigation, or otherwise biased in favor of or against one of the parties, is admissible without first examining the witness on the subject," citing the decisions of several States so holding. In the same section, however, it is further stated: "The weight of authority is to the contrary. At least where the bias is sought to be shown by the declarations of the witness himself."
Again, in 40 Cyc., page 2676, it is laid down: "A party seeking to show interest or bias of an adverse witness is not confined to cross-examination but may introduce independent evidence for the purpose," citing many decisions, some the same as cited in 30 Ency. of Law, above noted. Again, in the following section the further rule is laid down indicating that the foundation for this must first be laid by asking the witness himself. We think it is evident that the two rules are not in conflict. The latter proposition in both of these authorities indicates that the latter rule is where it is attempted by independent testimony to show such bias, interest, etc., by the witness having madestatements contradicting his testimony on the trial. The distinction in the books is not always kept clear. So in this case, if it had been attempted to impeach the witness Philip Burnaman by showing by the witness Lee that he had madestatements theretofore in contradiction of his testimony on the trial and such had been attempted to be introduced, then, as a foundation therefor, it would have been necessary to have asked the witness Philip Burnaman himself such questions before such contradictory statements could have been proven.
If the appellant had not used as a witness his brother Philip, and his brother had not given such material testimony in behalf of appellant, the testimony of Lee on this point would not have been admissible at all. It is because his brother Philip testified, that said Lee's evidence showing Philip's interest and bias in appellant's favor became admissible.
Appellant cites many cases in his brief to the effect that it is error to permit the State, over his objections, to prove that his friends, relatives or attorneys have undertaken to persuade a witness to leave, change or manufacture testimony in his favor, unless it be shown that the appellant was connected therewith or authorized the same. This also is a correct legal proposition and the cases cited by appellant sustain his proposition, but, as stated above, that is not what was attempted in this case. The testimony of Bill Lee was introduced not for the purpose of showing indirectly or directly that appellant authorized or requested his brother Philip to get Lee to change his testimony or swear that Philip's attempted tampering with the witness Lee was at his instance, or that he was connected therewith, but simply for the purpose of showing the bias and interest of Philip in behalf of appellant. And we think the evidence of Bill Lee on this point could not have been reasonably or otherwise construed to be that Philip's attempted tampering with Lee was at his instance or in his behalf with his knowledge or consent.
It is also elementary that it is improper for the court in his charge to limit the effect of proof which shows the motive or interest of either the appellant or any material witness for him. Such a charge would clearly be upon the weight of the testimony and a comment thereon which is prohibited. The appellant requested no charge in this case. He attempted to raise the question by motion for new trial alone.
Again, as shown above, when this testimony was first offered by the State and the appellant first indicated that he was objecting thereto, it is shown that he said: "All right go ahead we don't care." And when the witness was asked to repeat it, appellant again said: "Go ahead and relate it again," and the witness did so. No motion was then or afterwards made to exclude this testimony. So that under no phase, as we see it, did the court commit any reversible error in admitting this testimony under the circumstances.
Now let us see if the court should have limited the effect of said Lee's testimony on this point, and by not doing so committed reversible error. The rule is as stated by Mr. Branch in his Criminal Law of Texas, sec. 367: "Testimony does not have to be limited where it can only be used by the jury for the purpose for which it was introduced. Leeper v. State, 29 Texas Crim. App., 63, 14 S.W. Rep., 398; Franklin v. State, 38 Tex. Crim. 346, 43 S.W. Rep., 85; Sue v. State, 52 Tex.Crim. Rep., 105 S.W. Rep., 804; Rice v. State, 54 Tex.Crim. Rep.; 112 S.W. Rep., 299; Wright v. State, 56 Tex.Crim. Rep., 120 S.W. Rep., 458; Wilson v. State, 60 Tex.Crim. Rep., 129 S.W. Rep., 613; Malcek v. State, 33 Tex.Crim. Rep., 24 S.W. Rep., 417; Brown v. State, 41 Tex.Crim. Rep., 53 S.W. Rep., 866; Harrold v. State, 46 Tex.Crim. Rep., 81 S.W. Rep., 728." And as again laid down in section 873, subdivision 3, page 555: "If impeaching testimony can only be used by the jury to impeach a witness it is not necessary to charge on the subject at all. Brown v. State, 24 Texas Crim. App., 170, 5 S.W. Rep., 685; Magee v. State, 43 S.W. Rep., 512; Robinson v. State, 63 S.W. Rep., 869; Newman v. State, 70 S W. Rep., 951; Watson v. State,52 Tex. Crim. 85, 105 S.W. Rep., 509; Waters v. State,54 Tex. Crim. 322, 114 S.W. Rep., 628; Thompson v. State,55 Tex. Crim. 120, 113 S.W. Rep., 536; Schwartz v. State,53 Tex. Crim. 449, 111 S.W. Rep., 399; Poyner v. State,40 Tex. Crim. 640, 51 S.W. Rep., 376; Givens v. State,35 Tex. Crim. 563, 34 S.W. Rep., 626; Blanco v. State, 57 S.W. Rep., 828."
Take this evidence as succinctly and pertinently stated by appellant's bill, which shows the State was permitted to prove by Lee that Philip Burnaman approached him and to him as follows: "`Say, we must get together on this little thing. You know they are going to have us before the court.' I said, Yes, I reckon they will, but all I am trying to do is to tell the truth about it; so Philip Burnaman then said to me again. `Well, we want to get together on this matter, now you know that he, Sam, came down to us after he killed Mike, and told us that he had to kill him, because Mike was coming on him with his knife; that they had had a fight down in the field and Mike had cut his jumper, and he showed us the place where Mike cut him,' and I told him that I did not notice that nor hear him say that, and he said, `Now we must get together on this matter.'"
This testimony could not have been used by the jury for any other
purpose whatever than to show Philip's interest in behalf of appellant and his bias in his favor and thus affect his credit as a witness. It could not have been used by the jury in any way to establish appellant's guilt, or to disprove his defense. Hence the court did not err in failing to charge limiting it to the impeachment of Philip Burnaman.
The court in his charge in giving general definitions and laying down general propositions on self-defense, in a separate paragraph, charged: "If defendant, in the course of the fatal altercation, fired a number of shots you are instructed that, if the first shot was fired under circumstances amounting to self-defense, the defendant had the right in self-defense to continue to shoot as long as it reasonably appeared to him that he was in danger. And if such first shot was fired in self-defense, and defendant fired other shots into the head or body of deceased thereby producing or hastening the death of deceased when it no longer reasonably appeared to him that he was in danger, then such later shots would not be in self-defense (but the offense in such case would be of no higher grade than manslaughter)." Appellant objected to this paragraph of the charge and especially to the last line or two thereof, inclosed in parentheses as above shown, claiming that it was an undue limitation and restriction of his right of self-defense.
The testimony shows that the shooting of the deceased by appellant was with a .22 target rifle. That in order to fire each shot a lever had to be worked to eject the shell as it was fired, and thereby or otherwise shift the next cartridge from the magazine into the barrel of the gun before it could be again fired. That the appellant shot the deceased thus, though rapidly, nine separate and distinct times, each of the nine shots taking effect in the body of deceased. The doctors testified that three of these separate and distinct shots were fired into the top of the head in such course as to show that they were evidently fired after the deceased had fallen and was lying prostrate on the ground; that at least five of the balls which were shot into the body of the deceased were necessarily fatal. It was further shown by the physical facts on the ground that the deceased never approached appellant nearer, as appellant himself testified, than "thirty feet, or something like that." And they were some fifteen or sixteen steps apart. Appellant claimed and testified in effect that he believed deceased was coming on him for the purpose of attacking him with a knife, and that the indications by the deceased's movements with his hand indicated that if not with a knife with some other deadly instrument. The testimony was overwhelming that deceased was wholly unarmed, except a small pocket-knife which was found in his pocket closed when searching for arms immediately after the killing; that there were no other arms of any character on or about the person of deceased when he was killed. Appellant himself, in effect, testified that he saw no knife or other weapon in appellant's hand at any time immediately prior to or at the killing. It was also overwhelmingly shown that later when the body of the deceased was removed to his home, and he was undressed in preparation
for burial, that his person and pockets were again searched and no other arms of any kind were found in his pocket or otherwise about his person, other than said small pocket-knife belonging to deceased, which was closed and in his pocket. It was shown that deceased's wife, after his pants were removed in preparation for burial, took them, laid them on a barrel in another room in her residence, and at that time no other knife was in his pocket or otherwise about his pants. It is true that some witnesses on the trial testified that the next day they examined his pants, picking them up off of said barrel, and that then there was found a large knife belonging to one of the witnesses in the pants pockets of the deceased. Even if that knife was so found after that length of time in his pocket it was closed and in his pocket.
Under the circumstances we think that the general proposition laid down in said last above quoted charge was a correct proposition. Certainly it can not be contended with any show of reason that appellant had the right to continue to shoot into the head or body of the deceased when it no longer reasonably appeared to appellant that he was in any danger from the claimed assault or attempted assault by deceased upon him. And clearly after several necessarily fatal shots had been fired into his body and he was lying prostrate on the ground thirty feet from the appellant, he did not have any right, in self-defense, or otherwise, to fire three or more other fatal shots into the top of the head or body of the deceased.
Besides this, in the latter portion of the court's charge, when he submitted appellant's claimed self-defense to the jury, he correctly and fully submitted it in every phase that the evidence raised, in appellant's favor. And even if the general definition and principle laid down in the charge quoted was incorrect, it would not have the effect and could not have had the effect of unduly limiting or restricting appellant's right of self-defense, and could not and did not in any way mislead the jury or have a tendency to do so against appellant.
The court, in submitting appellant's defense of self-defense, we think, clearly submitted it in accordance with the law and the evidence from both phases, — self-defense separate and distinct from threats, and then in a separate paragraph his defense based on threats by the deceased against him. The charges of the court on these subjects are lengthy. It is unnecessary to quote them. Upon a careful consideration of all of appellant's criticisms of the court's charge, we think none of his criticisms show any reversible error and that appellant's rights on both of these theories were clearly, fully and accurately submitted in accordance with the law and the evidence applicable thereto in this case. Appellant requested no special charge on the subject.
There are no other questions presented which are necessary to be reviewed. The judgment will be affirmed.
Affirmed.