Creswell v. State

14 Tex. Ct. App. 1, 1883 Tex. Crim. App. LEXIS 109

Opinion

Willson, Judge.

On the eighth day of October, 1869, Lem Edwards was shot and killed in Tarrant county, near his residence. In March, 1877, the defendant was indicted for the murder of said Edwards, and in February, 1883, he was convicted upon said indictment of murder in the first degree, and his punishment assessed at confinement for life in the penitentiary; from which conviction he has appealed to this court.

numerous errors in the proceedings and judgment have been assigned by defendant’s counsel, but we deem it necessary to discuss only a few of them, passing over those not noticed by us with the remark that in our judgment they are unimportant and untenable.

When this case was called for trial in the court below, the State announced ready for trial, and the defendant being called upon to announce stated that he could not safely go to trial until he could have an opportunity to confer with Cass Edwards •and Elizabeth Edwards, two of the most important State’s witnesses; that he had never had an opportunity, either by himself or counsel, to confer with the said witnesses or either of them, nor did he in any manner know to what facts they would testify in the case, and he therefore requested the court to be allowed to confer with said witnesses himself and by counsel, before announcing ready for trial. Thereupon, the court granted permission to the defendant’s counsel and the said witnesses to confer together, but, at the same time, at the instance of counsel for the State, stated in the presence of said witnesses that they need not confer with defendant or his counsel unless they wished so to do, and that the court had no power to compel them in any way to confer or talk about the case to either the defendant or his counsel. Counsel for defendant then requested the witnesses to retire to a room with him and confer and talk with him about their testimony in the case. Counsel for the State thereupon announced in open court, in hearing of the witnesses, that he advised said witnesses to refuse to converse with defendant or his counsel about the case, and said witnesses did so refuse; and thereupon the defendant demanded of the court to require said witnesses to converse with him and his counsel concerning their knowledge of the case, which requirement the court declined to make, and the defendant was forced to go into trial without conferring with said witnesses; to all of which he at the time excepted, and presents the above facts in a bill of exceptions, and assigns the same as error.

A question of practice is here presented which has not, as we are aware, been settled by the courts of this State. Is it within the power, and is it the duty, of the trial court to compel a witness to disclose to a party to the prosecution what his testimony will be in the case? We are cited by counsel for appellant, in support of the affirmative of this question, to but a single authority, and that is the case of Yanez v. The State, 20 Texas, 660. In that case, after conviction, the defendant moved for a new trial upon the ground of surprise, the alleged surprise consisting in relying on mistaken information as to what a certain witness would testify, defendant having been informed, not by the witness, but by another person, that said witness would testify to certain facts favorable to defendant, but upon the trial the said witness testified to a different state of facts prejudicial to defendant.

In passing upon this motion for new trial the Supreme Court said: “The surprise might have been avoided by inquiring of the witness himself, before announcing for trial.” It is nowhere intimated that the defendant had the legal right to compel the witness to disclose to him what his testimony would be. If a witness should mislead a defendant as to material facts, and testify on the trial materially variant from what he had informed defendant he would testify, and prejudicially to the defendant, in such case the defendant, upon a proper application, might be entitled to a postponement or continuance of the case upon the ground of surprise. (Code of Criminal Procedure, Art. 568.) But there is no provision of law which requires a witness, before he is placed upon the witness stand to testify, to tell the defendant ¡ or any one else what his testimony will be; nor is the refusal of a witness to disclose his knowledge of the case made a ground for a postponement or continuance of a case, or for a new trial after conviction.

When witnesses have been placed under the rule, which does not appear to have' been done in this case, they are instructed that they are not to converse with each other, or with any other person, about the caso, except by permission of the court, etc, (Code Crim. Proc., Art. 666.) This rule is provided to prevent the testimony of one witness from influencing that of another, and to guard against false evidence. Its purpose is not to prevent parties or their counsel from conferring with witnesses about the case in a proper manner, in the discretion and under the direction of the court. This whole matter is placed by the law within the discretion of the trial judge, and great latitude is allowed him in the exercise of it. His action in such matters would not be revised bjr this court, except it were clearly shown to be an abuse of discretion operating to the injury of the defendant’s rights. (Williams v. The State, 35 Texas, 355; Roach v. The State, 41 Texas, 261; Goins v. The State, 41 Texas, 334; Sherwood v. The State, 42 Texas, 498; Ham v. The State, 4 Texas Ct. App., 645; Davis v. The State, 6 Texas Ct. App., 196; Cordova v. The State, Id., 208; Shields v. The State, 8 Texas Ct. App., 427; Jones v. The State, 3 Texas Ct. App., 150; McMillan v. The State, 7 Texas Ct. App., 142; Walling v. The State, 7 Texas Ct. App., 625; Browns. The State, 3 Texas Ct. App., 294; Avery v. The State, 10 Texas Ct. App., 199; Johnson v. The State, Id., 571; Hoy v. The State, 11 Texas Ct. App., 32.)

While we think that, ordinarily, it would be proper and just to afford to a defendant the opportunity to confer with the witnesses in the case about their knowledge of the facts, and that it would be right for witnesses to fully state to the defendant or his counsel what their testimony would be, still, we know of no rule of law by which witnesses can be compelled so to do. But if such legal right on the part of defendant, to compel the witnesses to disclose their knowledge of the facts of the case was. shown to exist, a denial of this right would not be sufficient error to set aside a verdict of conviction, unless it were shown that thereby he had probably been injured in his rights. In the case before us, it is not shown or even intimated that the defendant was in any way injured or prejudiced in the trial of his case, by reason of the refusal of the witnesses to confer with. him and his counsel as to what their testimony would be. We conclude that the court below did not err in refusing to require the witnesses to confer with the defendant and his counsel about the case. That the State’s counsel advised the witnesses in open court not to confer with defendant or his counsel, without assigning any reason for such advice, is not error of which the defendant can complain. Such advice may have been in bad taste and improper, but it does not in this case reach the dignity of an error in law.

Upon the trial defendant offered evidence to prove that the general character of the deceased was that he was a violent and dangerous man; that he habitually carried a six shooter upon his person, and was expert in the use of the same. This proposed evidence was excluded, and the action of the court in rejecting it was excepted to at the time* and is assigned as error. There was no predicate laid for the introduction of such evidence. (Penal Code, Art. 612.) It was not proved that deceased had threatened any injury to the defendant, either by words or acts, nor do the circumstances in evidence tend to show any such state of case as would render admissible the evidence offered. Threats made by deceased, and the dangerous character of deceased, are only admissible when it is shown that at the time of the homicide the deceased did some act indicating his purpose then to take the life of the defendant, or do him some serious bodily harm. (Irwin v. The State, 43 Texas, 236; Horbach v. The State, Id., 242.) Or when the circumstances of the case raise a doubt in regard to the question whether the accused committed the homicide in self d ¿fence. (Stevens v. The State, 1 Texas Ct. App., 591; Whar. Cr. Ev., 80.)

In the case before us, the evidence shows that the deceased was killed while on horseback; that the fatal ball entered the back of his head, showing that he was shot by some one who was most probably in his rear; and that a short distance from where he was shot he fell from his horse to the ground. Deceased at the time was armed with a six shooter, which was found upon his body, partially withdrawn from the scabbard. It was shown that deceased habitually carried his six shooter. Upon this state of facts defendant’s counsel contends that evidence of the dangerous character of deceased was admissible, the case being one of circumstantial evidence entirely. We do not think the evidence was admissible, there being a total absence of any proof showing or tending to show that at the time of the homicide the deceased was doing any act indicating a purpose -to kill or injure the defendant, or tending to show that the homicide was committed in self-defense.

It was in proof that shortly before the homicide the defendant purchased a large sized six shooter from one Fitzgerald. In explanation of this purchase and of his possession of a six shooter on the day of the homicide, the defendant offered to prove that at that time it was the custom and habit of every one in that county to carry upon their persons six shooters or other deadly weapons. This proposed evidence was rejected, and the action of the court in rejecting it was excepted to, and is assigned as error.

If the defendant had offered to prove that it was his own custom and habit at that time to wear a six shooter, or that he had purchased and was carrying this one for some legitimate purpose, such evidence would have been admissible as tending to rebut any unfavorable inference that might arise from the fact of his having the pistol. But this was not what he proposed to show. His proposition was to prove the custom of the country in carrying arms; the habits of others in that respect, not his own habit. He proposed to explain his act of obtaining and carrying the pistol, not by his own declarations accompanying the act, nor by his own habit of carrying a pistol, but by the custom of the country.

To hold such evidence to be admissible under the circumstances of this case would be going to a greater length in widening the avenues for the admission of testimony'than this court has yet gone, or than would be supported by the most liberal authority. We do not think the doctrine of res gestee, however broadly applied, would reasonably embrace the proposed evidence. It was remote, irrelevant and unimportant. Its rejection, so far as we are able to see, was not error, at least not such error as. would necessitate a reversal of the judgment. (Boothe v. The State, 4 Texas Ct. App., 202; Boon v. The State, 42 Texas, 237.)

In relation to the various exceptions to the charge of the court, and to the refusal of the court to give charges asked by defendant’s counsel, we will only say, without discussing these assignments of error in detail, that while the charge of the court as given is perhaps open to the criticism that it was too voluminous under the facts of the case, and might by a careful revision have been made more concise and clear, still we think it contained the whole law of the case correctly expressed, and in such manner as to be understood by the jury. Taken as a whole, in connection with the evidence, we do not think it is obnoxious to the exceptions made to it by defendant’s counsel. Bor do we think there was error in refusing to give the charges requested by defendant. In so far as these charges were correct and applicable, they had been substantially given in the general charge.

Although the evidence in support of the conviction is entirely circumstantial, we think in strength and conclusiveness it fills the requirements of the law, and that the verdict of guilty of murder in the first degree was not only warranted, but sternly demanded by the facts proved. '

Finding no error in the record for which the judgment should be reversed, it is affirmed.

Affirmed.

Opinion delivered April 18, 1883.