Harrelson v. State

132 S.W. 783, 60 Tex. Crim. 534, 1910 Tex. Crim. App. LEXIS 556

• Court: Court of Criminal Appeals of Texas
• Decided: May 18, 1910
• Docket: No. 576.
• Status: Published

Opinions

RAMSEY, Judge.

By indictment filed in the District Court of Shelby County on the 17th day of August, 1908, appellant was charged with the murder of one S. A. Eraser. This killing is charged to have been committed on the 15th day of June preceding. At a trial held in said court on the 14th day of September, 1909, appellant was by' the jury found guilty of murder in the second degree and his punishment assessed at confinement in the penitentiary for a period of five years.

The statement of facts comprises something more than 100 pages of closely typewritten matter, and it would be impossible within the limit of any ordinary opinion to make a detailed statement of the case. It may be sufficient, however, to say that appellant and deceased lived within about a quarter of a mile of each other, and that their relations had not been friendly for some little time. Various threats were shown to have been uttered by deceased against appellant, and there was some evidence of threats by appellant to do harm to deceased. The record shows that a brother of appellant had been prosecuted for theft by deceased, or at least the deceased was a prominent actor in his prosecution and an important witness on his trial. It also shows that deceased had charged appellant with burning his smokehouse and that probably the deceased instigated a charge of theft of timber against appellant. The record also shows that some charge, about the same time, had been brought against deceased. Taking the whole record, it clearly shows that the relations between the parties were very strained. There is in the record considerable testimony that appellant was a man of good reputation as a quiet, peaceable citizen. There is some evidence to the effect in substance that the reputation of deceased as a quiet and law abiding citizen was bad, though the State met this issue by testimony that his reputation in this respect was good. The evidence tends to show that for many years there was a roadway leading across appellant’s land and that for some time before this in getting logs to the river appellant had been hauling across the land of deceased. To this deceased objected and had given notice, just before the killing, to appellant that this must stop. Out of these controversies grew the difficulty and in them rests the motive for the killing. When this killing took place there was no eyewitness except appellant. His evidence tends to show that on the morning in question he came 'upon deceased unexpectedly and upon an infrequently traveled road. Deceased was in his shirt sleeves, had a hammer in his hand and his coat thrown across his left arm. His testimony is that when he was ten, fifteen or twenty steps from the deceased, deceased put his hand towards his waist, and with a threatening statement made a demonstration as if to draw a pistol and that thereupon he shot deceased. Appellant was armed with a double-barreled shotgun, and the evidence shows that he fired into the body of deceased twenty-three different and distinct shot, or at least his body was pierced and bore evidence of having been struck by at least that many different bullets. When found, by the testimony of numerous witnesses it was shown, deceased was in his shirt sleeves and his coat was lying across his left arm, and by the testimony of most of the witnesses it was shown that it was folded with the lining on the outside; that it contained a pistol, and that this pistol was rather against the body of the deceased. This will probably be a sufficient statement of the case to make the opinion understood.

1. When the case was called for trial appellant filed a motion to quash the venire on two grounds. First, because it did' not state the nature of the offense with which appellant was charged, nor that he was charged with a capital offense. Second, because the certificate of the clerk of the District Court to said writ was defective in that it is dated on the 10th day of September, 1909, which was nine days after the venire was by its terms made returnable. We think there is no merit, as presented, in either of these contentions. Article 642 of our Code of Criminal Procedure is to this effect: “A 'special venire’ is a writ issued by order of the District Court, in a capital case, commanding the sheriff to summon such a number of persons, not less than thirty-six, as the court in its discretion may order, to appear before the court on a day named in the writ, from whom the jury for the trial of such case is to be selected.” The statute by its terms does not require that this writ shall state that the case in which it is issued is a capital case, or that it shall state the nature of the offense, but only provides that such special venire shall be issued in' a capital case. In this case the writ names the case by style and number and the court in which it is pending and gives the day and date to which same is returnable. It has long been held in this State that statutes relating to this writ are, for the most part, directory and should be liberally construed. Roberts v. State, 30 Texas Crim. App., 291; Murray v. State, 21 Texas Texas Crim. App., 466; Pocket v. State, 5 Texas Crim. App., 552. There is no claim or contention that in fact the writ was not issued in the instant case, or that it was not a case in which under the law, a special venire was required to be issued. Nor do we think there is any merit in the bill of exceptions and contention that the writ should have been abated because it was dated on the 10th day of September, 1909. Under the direction of the court inquiry was made and it was discovered that as a matter of fact it was issued on the 10th day of August, 1909, and that the indorsement on the back of said special venire bears that date, and that the certificate of the clerk at the bottom of the venire bearing the date of September 10, 1909, was a clerical error. The writ by its terms was made returnable on September 1, 1909, and the jurors appeared on the 3d day of September of the same year under authority and by direction of the writ aforesaid. It seems too clear for discussion that this contention is without merit.

2. On the trial the State was permitted to introduce, over the objections of appellant, Mr. G. W. Gibson, official stenographer, who testified in substance that on- the trial of appellant’s brother at the February term, 1908, of the District Court of Shelby County, in which he was charged with theft of hogs and in which deceased was the principal State’s witness, after the jury upon said trial had retired to consider of their verdict they came into open court and requested that the testimony of said witness Fraser be read to them by the stenographer, and that after the reading of the testimony of said witness the jury afterwards returned a verdict of conviction against appellant’s brother assessing his punishment at two years confinement in the State penitentiary. This testimony was objected to for the reason that same was immaterial and irrelevant and because the defendant was not present at the time and did not hear the testimony that was reread and had never heard of its having been reread just prior to the verdict being returned against his brother. That it was competent under the facts of this case, as showing motive, for the State to prove the relation of the deceased to the case in question, his active participancy therein, there would seem to be no sort of doubt. It will be observed that no portion of the statement made by the deceased was admitted, but simply the fact was proven that his testimony was reread and that afterwards a conviction was had. This matter is not included in any regular bill of exceptions, but appears in the statement of facts where it is stated, as an objection, that it was not shown that this occurrence was had in the presence of the appellant or that "he had ever heard of it. The testimony of Mr. Gibson does not show, as a matter of fact, nor is it stated and found as true by the court that he was not present or did not know of the incident testified about, nor is it clear that .appellant had not heard and did not know of this incident. We are inclined to think that the record raises the issue that he did know of it and that his relations to the case and his interest in his brother’s behalf were such as to justify the jury in concluding that he must, in the nature of things, have known of this particular incident. It is shown on the cross-examination of the witness Harvey that the appellant was present at the trial of his brother. While he denies this, it does appear from his testimony that he was engaged for about two days after the conviction in seeking to obtain affidavits of various persons attacking the reputation of deceased for truth and veracity, which affidavits were intended ,for use in his brother’s motion for new trial, which was then pending. It also appears by the testimony of the witness Roberts that appellant understood or believed that his brother had been convicted for hog theft largely, if not solely, upon the testimony of the deceased, it appearing further in this conversation that appellant said to Roberts on the Saturday evening before deceased was killed on Monday, that this testimony of deceased would not be forthcoming at the next trial of his brother.

3. Complaint is made of the charge of the court in that it is erroneous since it failed to charge the jury that appellant had the right to carry his gun with him in the bottom on the morning of the homicide, and that if the jury believed that he was seeking the deceased with his gun and met the deceased in the road, and at -said meeting shot him, but did no act calculated to provoke a difficulty with deceased, and that deceased made a hostile demonstration towards him, that deceased was about to draw his pistol for the purpose of killing him or doing him some serious bodily injury, that then he would have a right to shoot in self-defense and the fact that he was carrying his gun and looking for the deceased, if the jury so believed would not, under these circumstances, abridge or jessen defendant’s right of self-defense. In considering this complaint it should be stated that the court gave an excellent and full charge on the law of self-defense which is not, except in the respect above noted, complained of, except in the most general way. We do not think under the facts of this case that the court should have given this charge. The evidence of appellant was directly to the effect that at the time of the fatal difficulty he was not seeking deceased, and that he came upon him entirely unexpectedly. The court did not charge, on the issue of provoking the difficulty, or in any way limit appellant’s rights of self-defense by reason of any such .claim or contention. In the absence of a charge presenting the law of provoking the difficulty the court was not in error in not charging the jury in respect to these matters. An examination of the authorities will disclose the fact that in practically all the cases instructions such as those mentioned in this assignment have only been given where the issue of provoking the difficulty was in the case.

4. During the trial it was developed that a complaint - had some time before the killing been -made against appellant charging him with the theft of timber from the deceased, and that in view of this evidence the court erred in failing to limit same to the purposes for which it was introduced. We think it would have been manifestly improper for the court to have limited this testimony. It was introduced, among other things, and was clearly admissible, for the purpose of showing animus, motive and resentment on the part of appellant and as furnishing a reason for his hate, dislike and ill-will. Sullivan v. State, 31 Texas Crim. Rep., 486. It is not necessary to limit evidence of extraneous crimes for the purpose of 'affecting defendant’s credibility as a witness unless the evidence of such extraneous crimes might be used by the jury against him on the trial. In other words, if it is such evidence as in its nature could not be taken as a circumstance of guilt in the case being tried it is not error to fail to limit it in the charge. Thornley v. State, 36 Texas Crim. Rep., 118. While this testimony seems on the trial to have been treated somewhat in the nature of impeaching evidence it was nevertheless admissible, as it was doubtless admitted, to show motive. For the court to have singled out this testimony so admissible on the subject of motive would doubtless have been to have dignified, it with an importance that it did not possess and might have been subject to objection as a charge on the weight of the evidence. In the case of Rice v. State, 49 Texas Crim. Rep., 569, it was held that it was error to charge the jury that the State had introduced evidence which might tend to show the defendant and other parties acting with him influenced a State’s witness to leave the State and not attend the trial and that the jury could only consider such testimony as a mere circumstance with other evidence, in determining whether defendant killed deceased, and if so, his motive in doing so, and that the jury could not consider it for any other purpose as they could not convict defendant for any offense other than that named in the indictment. This charge was held to be on the weight ’ of the evidence and not authorized. Hall v. State, 31 Texas Crim. Rep., 565.

5. On the trial the State proved by Mrs. Perminter and her daughter, Dona Perminter, that on the day of the homicide and a short time thereafter they stopped at the home of appellant to get some water,- and in conversation with them he made the statement that he shot and killed deceased, and that at the time he shot him deceased was putting his hand in his shirt bosom. The State was also permitted to prove by one Gox that on the road from his house to Logansport appellant made the statement to him that deceased had been interfering with him and his" teams where he was hauling and that he had carried his gun for him on the previous day and he didn’t come, and that it was a good thing he didn’t come, if he had he would have been killed, and that the next time he bothered him over there in his work he would kill him. The State was also permitted to prove by one Williams that appellant told him in speaking of deceased having his smokehouse burned, that if he ever told him to his face that he burned his smokehouse he would kill him. It was further shown in evidence that appellant was asked, touching the statements, and denied making them, or any of them as attributed to him by the witnesses. It is urged that since this evidence was in direct contradiction and in impeachment of the testimony of appellant while a witness in his own behalf, that the court should, in his charge, have limited the testimony of these witnesses to the purpose for which it was offered. Under this assignment they submit this proposition: “When a defendant goes upon the stand as a witness in his own behalf he becomes subject to the rules as any other witness, and when predicates are laid for the purpose of his impeachment, and testimony introduced for that purpose, it is the duty of the court in his charge to the jury to limit such testimony for the only purposes for which it was admitted.” That the testimony of Williams "and Cox was admissible as direct testimony there can not be the slightest doubt. They both imply threats to kill and as well imply the most deadly animosity and, as showing motive, were undoubtedly admissible as original testimony. We think, further, on a fair analysis of the evidence that the testimony of Mrs. Perminter and her daughter was equally admissible as original testimony. When the body of deceased was examined no pistol was found on him except one in his coat pocket, and the location of this was so distinctly away from his bosom as to show the substantial untruth of appellant’s statement to these ladies. It should be remembered, too, that these statements to Mrs. Perminter and her daughter were made immediately after the killing and before an examination of the body had been made by other persons. Hence, their testimony was the evidence of appellant himself about the facts immediately surrounding the killing, though incidentally an impeachment and contradiction of appellant’s testimony, and was admissible as original testimony. As stated, that the testimony of Cox and Williams implying and involving a threat by appellant against the deceased and as showing ill-will and animosity was legitimate and affirmative testimony for purposes other than impeachment, is sound in reason and supported by an abundance of authority. Leeper v. State, 29 Texas Crim. App., 63, and Hudson v. State, 28 Texas Crim. App., 323. The mere fact that the testimony was, in a sense, impeaching, or that it was offered by counsel in the belief that it was impeaching in its character can not affect its admissibility if in fact and law it were admissible in the first instance. It was incidentally impeaching and it would have been manifestly erroneous for the court to have denied the State the use of this evidence as testimony of guilt and to have limited it solely for the purpose of contradiction.

A careful review of the entire record has convinced us that there is no error for which the case should be reversed, and it is therefore ordered that the judgment of conviction be and the same is hereby in all things affirmed.

Affirmed.