Fitzpatrick v. State

38 S.W. 806, 37 Tex. Crim. 20, 1897 Tex. Crim. App. LEXIS 5

• Court: Court of Criminal Appeals of Texas
• Decided: January 13, 1897
• Docket: No. 1159.
• Status: Published

Opinion

DAVIDSON, Judge.

Appellant was convicted of murder in the second degree, and given twelve years in the penitentiary; hence this appeal. There is nothing in appellant’s assignment as to the order of court changing the venue from Tom Green County to Erath County. The ground urged is that the order does not show that it was done at a regular term of the District Court of Tom Green County. It has been held that the transcript for the change of venue need not include the caption, showing the term of court at which the order of change of venue was made. See, Wolfforth v. State, 31 Tex. Crim. Rep., 387. The law fixing the time of holding the District Court of Tom Green County, in force at the time, authorized the said court to be begun and holden on the fourteenth Monday after the first Monday in September, which, in the year 1895, came on the 9th day of December, and authorized said court to continue in session until the business thereof was disposed of. .The order for the change of venue in this case was made on the 8th day of January, 1896. The indictment was returned into the District Court on the 10th day of December, 1895. On this showing of the record, this court will certainly indulge the presumption that the District Court of Tom Green County met, as authorized by law, on the 9th of December, 1895, and the session was continued until the 8th of January, 1896, when this order for the change of venue was made. The State insists that the bills of exception in the record numbered from 2 to 7, inclusive, should not be considered, because they were not approved by the judge as required by law, but that they were approved, some nine days after.they were filed, on a separate piece of.paper, by the judge who tried the case. This approval, filed by the judge, was during the term, and within ten days after the trial was concluded. The judge’s approval alludes to each of the bills seriatim, and to a number of them he affixes an explanation before signing. While the statute requires a bill of exceptions to be approved and signed by the judge, we know of no rule of law or decision that requires the bill of exceptions and the approval of the judge to be written on the same sheet of paper. Of course, this would appear to be the more regular procedure—that each separate bill be signed by the judge. If the bills of exceptions are made out on separate slips or. sheets of paper, and afterwards attached and fastened together with pins or brads, in such case, we think there would be no question^ if the bills of exceptions are. numbered and alluded to in the judge’s approval, that it would be sufficient approval of each of said bills. The record in this case does not show that said bills and ..the approval were not so fastened together. The judge’s approval rather indicates that such was the fact, as it alludes to each of the bills, inclusive, from two to seven, and approves the same. However, we would not-be understood as holding, although the bills were not so attached and fastened together, if the judge’s certificate of approval referred to and identified said bills as the bills approved and signed by him, though such approval was on a separate sheet of paper, that it would not be a good approval of the bills of exception. We think the maxim would apply here. “Id certum est quod certum reddi potest.” While the State’s witness, John Brown, was on the stand, over the appellant’s objection, the State asked him the following question: “Did you make this statement on the examining trial?” ‘When the defendant called him (meaning Allen) a lying son-of-a-bitch, Allen said, “I didn’t care, if you are standing in together; I did not mean anything.” ’ ” To which witness answered, “Allen said, ‘I didn’t mean anything.’ ” To the question and answer, and before the same was answered, defendant excepted “(1) because the same was leading; (2) not original evidence; (3) not proper to bolster up the statement of a witness by proof of what he had previously testified to. In explanation to the bill, the court certifies “that the witness, Brown, had omitted the statement complained of in detailing the occurrence. Ilis manner indicated that he was an unwilling witness for the State. State’s counsel asked him if his memory had not been refreshed by reading his testimony over to him the night before, and that if he had not then been asked if it was correct, and if he wanted to correct the same by any additions or omissions; and he answered that it had been read over to him with that statement, and he had stated that it was correct. His testimony was then shown him, together with his signature, and he was asked if he made the statement as contained in the bill of exceptions. Upon objection by the defendant’s counsel, State’s counsel stated that they believed that said witness would answer as stated in his original testimony, and were surprised at his failure to do so; and the court regarded said witness as unfriendly to the State, and that State’s counsel did not ask him questions on the stand merely for the purpose of contradicting him, and admitted the question as shown by said bill.” The court’s explanation that the "witness appeared to be unfriendly authorized the court to allow leading questions; this being a matter largely within the discretion of the court. With regard to the use of the record by the State’s counsel in the examination of the witness, unquestionably, if this record had been called for by the witness for the purpose of refreshing his recollection about the fact, and the witness could say it would serve such purpose, he would have been afforded the opportunity of examining it. See, Hubby v. State, 8 Tex. Crim. App., 597; White v. State, 18 Tex. Crim. App., 57; 1 Thomp. Trials, p. 364, § 402, Subdiv. 3; State v. Miller, 53 Iowa, 154, 4 N. W., 900. But in this ease it appears that the witness was an unfriendly and an unwilling witness, and in such case it was permissible for the court to authorize his being treated by counsel, in the examination, in this respect, as an adverse witness; and, in order to elicit the fact, he could be cross-examined, and means could be used to refresh his memory, and to challenge his recollection of the facts. It seems in this case, on being so refreshed by the record, the witness stated that Allen said, -on the occasion in question, that he did not mean anything by saying that the defendant and Harris were standing in together, or in his (Allen) calling defendant a son-of-a-bitch. This, as we understand it, was not stating what he had testified to previously, as corroborative of his testimony then being given, but was the statement of a fact which was pertinent, after his recollection had been refreshed; and this, we think, was legitimate. With reference to the objection to the examination of the witnesses, Freeland and Brazil, in connection with the record of a former trial, the court’s explanation shows that the testimony in connection with this record evidence of a former trial was first brought out by the defendant; and on re-examination by the State, the remainder of said witness’ testimony, in connection with that brought out by the defendant, was allowed to be adduced by the State as explanatory of what had been theretofore introduced by the defendant. This, as we understand it, was permissible. And we think it was permissible to show by the witness, Brazil, in connection with his testimony (he having already testified as to the relative positions of the defendant and the deceased at the time of the fatal rencounter, and his own position) that he saw no demonstration on the part of the deceased at the time or shortly before the time he w.as shot; that he was in a position to have seen any demonstration on the part of the deceased, as if to draw or present a pistol, if he had done so; and that he saw no such demonstration. This was a shorthand rendering of the facts.

On the trial the defendant was a witness-in his own behalf, and, over the objections of the defendant, the State was permitted to prove by him that he had been indicted and convicted for a simple assault upon a man named Harry Farley, and that he had been arrested in the Justice of the Peace Court for fighting with Albert Goss. Defendant objected to this testimony, because these were not convictions for felonies, but are mere misdemeanors, -which do not involve moral turpitude. They were not legitimate for the purpose of impeaching the defendant, and could only serve to prejudice the jury against the defendant. We do not deem it necessary to go into a discussion of this question or the authorities bearing upon it. The question is settled- in this State that such testimony is not admissible. See, Goode v. State, 32 Tex. Crim. Rep., 505; Brittain v. State, 36 Tex. Crim. Rep., 406; Williford v. State, 36 Tex. Crim. Rep., 414; State v. Smith (Mo.), 28 S. W. Rep., 182; Cobel v. State, 31 Ohio St., 100; Arhart v. Stork, 27 N. Y. Sup., 301; State, v. Taylor, 98 Mo., 240; 11 S. W. Rep., 570. The further question remains, however, that, notwithstanding this impeaching testimony should not have been admitted, was it of a character, under the record in this case, to injure or impair the rights of. the appellant? This involves the question whether or not appellant’s testimony as to the facts attending the killing was materially variant or differ ent from that of the other witnesses who testified in this case. All the witnesses, both for the State and the appellant, show that the difficulty which resulted in the homicide occurred over a game of cards. The defendant and the deceased, with one or two other parties, were engaged in a game of poker, in a poker room over the corner saloon, in San Angelo, Tex.; the killing occurring between 12 and 1 o’clock at night. During the game, appellant proposed to divide the pot with one Harris. Harris remarked that he .could not do it, as there was another party in the game who had not passed out; alluding to Allen, the deceased. The deceased thereupon threw his hand (cards) down, stating that defendant and Harris were in together anyhow. This was resented by the defendant, and an altercation ensued in the poker room, which appeared to have been cut off from the main or larger gambling room, being in one corner thereof. Appellant and the deceased, according to the witnesses, quarreled and bandied epithets with each other for some time in the room. Some of the witnesses say deceased called defendant a “mother f—g son-of-a-bitch” first; others, that the appellant called the deceased that first; and some that they did not know who used the expression first. Defendant himself says that deceased applied this epithet to him, but he did, not use it towards the deceased. All of the witnesses testify, and so does the appellant, that they called each other “damned sons-of-bitches” repeatedly; and a number of witnesses testify that this character of expression was common between these parties, who associated together a good deal, and nothing seemed to be thought of it between them. About this time, defendant left the poker room, went out into the gambling room, thence downstairs into the saloon, and asked for his gun or pistol. The bartender told him that he had given him his pistol when he went on duty. Defendant went back upstairs and got his pistol, where he had placed it against the wall, near his coat, when he began the game of poker. Some of the witnesses say that, when the defendant asked for his gun downstairs, he said he “would not allow any God damn man to impose on him that way, and'he would kill him.” One of the' witnesses stated that he said he “was going to shoot him; that they could not accuse him of robbing.” The defendant, in his own testimony, says that he did not remember anything that occurred after the deceased called him “a mother f—g s—n-of-a-b—h,” until he found himself down in the bar room asking for his gun. When the defendant came back into the poker room it appears that the deceased and several others were still in the room. The witnesses for the State show that the defendant began the altercation again when he got his pistol. The defendant himself says that, when he came back and got his pistol, he said, “Frank, you can’t make me do nothing,” or “You can’t do nothing with me.” According to some of the witnesses, Allen (the deceased) told him that if he would put his gun down he would whip him, and then the altercation began again. Freeland testified that he heard defendant tell Allen to go and get his gun, and he would wait for him. After they had abused each other here for some time, it seems that the parties in the room, according to the testimony of eye witnesses, as well as the defendant himself, caught the defendant, and shoved him out of the poker room. Some of the parties prevailed on Allen to go, and he came out of the poker room; the parties still quarreling. In a short time it appears that Allen started as if to leave the difficulty, and went to the stair steps and started down the steps, and had gone down a few steps, saying nothing; and at this juncture, according to the testimony of all the witnesses, the defendant stepped up to a point near to the stair steps. According to several, defendant reached over the steps, and touched the deceased, and accosted him. Brown testified that he said, “ ‘Tankey, you ain’t game to fight me,’ and made a move towards Allen, but did not know whether he touched him or not—a move like he was reaching to touch him. Allen then turned around and said, ‘I’ll fight you any way,’ and I think called defendant a ‘son-of-a-bitch.’ Allen stepped back up the stairs, and Fitzpatrick backed south of the poker-room door. I then got out of the way, and did not see the shooting.”' Killiman testified that “Allen did not say a word, as he remembered, as he walked to the steps. Defendant got to Allen by the time he got to the stairway, and slapped him on the shoulder, and said, ‘Tankey, old boy, you ain’t got nerve to fight;- go on downstairs.’ Allen then turned around, and stepped back upstairs. Runion, the constable, was with Fitzpatrick at this time, and had hold of him, trying to get him back. As Allen turned around, he said, ‘Don’t you put your hands on me, you God damned son-of-a-bitch; I can whip you any way men ever fought,’ and turned with his hands hold of his (Allen’s) coat. Defendant pushed Runion off and said, ‘I am mad; I will kill both of you,’ and raised his gun, and shot Allen; and Allen clasped his hands to his breast, whirled around, and caught the banisters, and, as he did that, Fitzpatrick shot him in the back. Allen fell.” Runion testified “that he and Fitzpatrick were some twelve or fifteen feet away from the head of the stairs, and he had hold of Fitzpatrick when Allen started down stairs. Fitzpatrick walked over to the head of the stairs, and told Allen that he was a cur, and would not fight anything. Allen told Fitzpatrick that he was a damn liar; that he would fight him anywhere. Allen came back then, and he (Runion) shoved Fitzpatrick back towards the crap table. Fitzpatrick shoved witness away, and said, ‘I’ll kill both of you,’ or he would kill both of us, and pulled his pistol, and fired. After the first shot, Allen threw his hands up to the place where he was shot, and halloaed, ‘Oh!’ and another shot was fired, and he fell.” Talbert and Brazil testified to the same effect as to the conduct of the parties at this juncture, but they did not hear the expressions of defendant, but heard the defendant say something to deceased, and Allen turned around, and said, “I’ll fight you any way in the world.” As Allen turned around, the defendant retreated a few steps, and Runion stepped in between .them. Defendant got back, drew his pistol, and, as Allen advanced, defendant shot him. All of these witnesses concur in stating that they saw no motion or demonstration on the part of Allen as if to draw a pistol. Some of them testified that he might have made a demonstration, and they not have seen it; and others, that they were watching the parties, and no demonstration of that sort was made; and they showed how the deceased was holding his hands at the time. On this point the defendant testified as follows: “After I came back in the poker room and got my pistol, I turned around and said, ‘Frank, you can’t make me do nothing,’ or ‘You can’t do nothing with me.’ I was on one side of the poker table and he was on the other. I just motioned towards him with my hand, and about that time Brown or Runion shoved me back, and I fell against some chairs, or rather, sat down. When I got up, I think I had the gun in my hand. They shoved me out of the door, and, after I got out of the door, I put the gun back in my pants, either in my waistband or hip-pocket; don’t know which. We then abused one another back and forth. He was in the poker room, and I was on the outside. He came out of the poker room, and started towards the head of the steps, and we were still abusing each other. He stepped about middle ways between the head of the steps and the poker room door, and abused me, and walked on towards the head of the steps. Runion had hold of me all this time, before and after Allen came out. After he started down the steps—I think it was about two stops from the banisters—I stooped over, and threw my right hand on the banisters, and I says, ‘Go on, God damn you; you won’t fight anyhow,’ or maybe, called him a ‘son-of-a-bitch.’ We were both calling each other sons-of-bitches. He turned around, and came back up the steps, and, after he got upon the steps, or rather, after he got on the landing, he stepped away two or three steps sideways. He said, ‘You God damn mother f-g son-of-a-bitch, I’ll fight you any way on earth.’ Runion had hold of me still, and took me towards the crap table. When deceased used this language, he threw his hand to his hip pocket, and I threw Runion off, and says, ‘Turn me loose; he will shoot us both,’ or ‘will kill us both;’ and, just as I threw Runion off, I pulled the gun out, and fired two shots.” Defendant then proceeds to tell that his mother raised him—' that he lived with her until she died, at which time he was 17 years of age. He also testified, in this connection, “that this epithet hurt' him very much, and made him awful mad and excited; and from the motion deceased made I thought he was going to shoot any minute. I knew that he always had a gun on at night. I saw him with a gun when we first went in the poker room that night. When Allen used to me the epithet above, I did not reply in the same terms. I called him a ‘damned pot-bellied son-of-a-bitch,’ and at this juncture I shot the deceased. When I fired at Allen, he had his hands back, as if he'was going to draw a gun. I could not tell what he did after I fired the first shot, on account of the. smoke. I cannot say whether I would have killed him or not, if he had not made a move towards drawing a pistol. I cannot say why I did not kill him after I came back and got my gun, after he had called me the epithet stated above.” Some of the witnesses for the - defendant testify that a pistol was found on the body of the deceased after his death. Exceptas to the epithet applied by the deceased to the defendant, just before the shooting, and also the demonstration just before said shooting,, we fail to see that appellant’s testimony is materially different, in the essential points of the homicide, from that of the other witnesses in this case. All concur with him to the effect that the deceased was leaving the place of the difficulty —had gotten a part of the way downstairs—when the defendant followed him up, and, according to some of the witnesses, made an assault upon him; according to others, and his own testimony, challenged him to a combat with deadly weapons. We can place no other construction than this on the acts and conduct of the appellant as testified to by himself. Deceased was going downstairs, leaving the place of the difficulty. 'Appellant went to him, and taunted him, telling him, “ ‘Go on, God damn you; you won’t fight anyhow,’ or maybe I called him a ‘son-of-a-bitch.’ ” No matter what had transpired before, this was a provocation on the part of the appellant, and a renewal of the difficulty. If, as he states, deceased was armed with a pistol, defendant himself knew that he also had a pistol, and previously, during the difficulty, had manifested repieatedly a disposition to use it. Although the court gave a general charge on manslaughter, in our opjinion, there was no manslaughter in this case—neither under a general provocation calculated to produce piassion in a person of ordinary temper, nor because of the alleged epithet applied by the deceased to the defendant. As was said in Graham v. State (Tex. Crim. App.), 33 S. W. Rep., 537,. this was merely an insult to the defendant himself, and not in the nature of a slander or insult towards a female relation. The evidence of the appellant in this case clearly and unmistakably shows that at least the killing Was upon implied malice. It may be that the defendant was not cool and deliberate, so as to form the intent to kill upon expiress malice. The altercation may have p>rodiíced, as he says, “hot blood and excitement” on his part; but unquestionably, after the deceased abandoned the altercation, and was leaving the place, defendant followed him, produced the occasion, and made the provocation, evidently for the purpose either of killing the deceased, if he resisted it, or, on his acceptance of the challenge, to engage with him in a deadly conflict with weapons, in which the life of one or both might be sacrificed. Of course, the defendant’s evidence puts a milder light on the killing than that suggested by the testimony of the other witnesses. His evidence alone showed a demonstration on the part of the deceased when he was taunted with his cowardice and challenged to fight; but this, under the circumstances, did not reduce to manslaughter, much less justify the killing. The jury, if they had believed the other witnesses, and had disbelieved the defendant as to any demonstration, would no doubt have given the defendant a much .severer punishment than that of confinement in the penitentiary for twelve years; and doubtless, in fixing the penalty in this case, they considered the fact that the killing was not in the nature of an assassin ation, but was a killing on an occasion produced and sought by the slayer, in which he thought his adversary was fighting him upon fair terms. We can see no other reason why they should have given him the small amount of punishment which they did. What we have heretofore said disposes of the other questions raised by the appellant on the .charge of the court, and the refused special instructions asked by the appellant. We do not believe the court made too prominent the question of a killing on provocation in this case. We do not believe the court ■erred in refusing to give the charge asked on manslaughter, predicated upon an insult to a female relative. The other errors need not be discussed. The judgment is affirmed.

[Note.—Defendant’s motion for rehearing was overruled without a written opinion.—Reporter.]

Affirmed.