Hunnicutt v. State

20 Tex. Ct. App. 632, 1886 Tex. Crim. App. LEXIS 87

Opinions

White, Presiding Judge.

This is the second appeal taken in this case, the first being from a conviction for murder of the first degree, with a life term in the penitentiary assessed as the punishment (Hunnicutt v. The State, 18 Texas Ct. App., 498); this present being from a conviction for murder of the second degree, with the punishment-affixed at twenty years in the penitentiary.

Many questions of an interesting character are presented in the record, but we propose to discuss only such as may become important upon another trial, remarking in passing that such as are not discussed are not considered as presenting errors of a radical or reversible character.

1. Defendant applied for a change of venue on account of the existence of such prejudice against him that he could not get a fair and impartial trial in the county where the prosecution originated and was pending; this being one of the statutory grounds provided for in article 578, Code of Criminal Procedure. Twelve compurgators supported defendant’s affidavit as to the existence and character of the prejudice against him. W. H. W. Smith, the sheriff of Dallas county, made a counter-affidavit, directly controverting and attacking the means of knowledge of defendant’s compurgators with reference to the matter stated in the application, and expressly denying the existence of such prejudice against defendant as that he could not obtain a fair and impartial trial in Dallas county. This counter-affidavit was sufficient under the statute to attack the means of knowledge of the compurgators and to raise and present the issue of “prejudice” or “no prejudice,” so as to authorize the introduction of evidence on the issue in order that it might be tried and determined by the court. (Code Crim. Proc., art. 583; Davis v. The State, 19 Texas Ct. App., 201; Pierson v. The State, decided at the present term. It was not error to overrule exceptions made to the sufficiency of said counter, attacking affidavit, nor was it error to overrule the application for a change of venue.

2. As to dying declarations, a sufficient predicate was laid by both the witnesses Gliser and Tooley for their admission in evidence. When the admissibility of Gliser’s evidence of dying declarations (the jury having been retired) was being inquired into by the court, and after the witness had stated the circumstances attending the making of, and what these declarations were, defendant’s counsel proposed to disprove the statements made by said witness by other witnesses, and the court held that such proof was not permissible at that time, but could be made by way of impeachment of the witness before the jury. We are of opinion that the court did not err, but on the contrary announced the proper practice. If a proper statutory predicate was laid by the witness (Code Crim. Proc., art. 748), it was the duty of the court to admit the evidence. As to the credibility of the witness testifying to the declarations, that was a matter exclusively within the province of the jury, and the court would not have been authorized to have ruled out evidence otherwise admissible, upon the ground that the witness was not worthy of credit.

¡Nor was it error to admit the evidence of the witness Maddox in this connection. The fact that the wounded man was continually asking the doctor “ to do something for him,” does not controvert his belief of the statement he first made to the witness Tooley,— “ Oh, my God, Mr. Tooley, I am killed,”— or the fact that he was conscious of his dying condition; but to our minds it only evidences a desire to have the doctor do what he could to alleviate his sufferings. Intensity of pain frequently prompts those conscious that they must die to request others to kill them to relieve "them of their sufferings, and in extremity of physical suffering it is but natural that such an one should desire all the palliation or relief possible, though he may know that death is inevitable in a short time. Deceased had stated that he was dying,— was killed,— before Maddox was present, and the fact that Maddox heard no such statements after he arrived is no evidence that a change had taken place in the deceased’s mind as to his hopes of recovery.

3. Objection was made to the pardon offered in connection with the witness Polser, who was an ex-convict. Two objections were urged: 1st. ■ That the pardon misrecited the offense for which the witness had been convicted and served a term in the penitentiary; and 2d, that there was a variance between the date of the conviction and that stated in the pardon. The witness had been convicted at the June term, 1878, of the district court of Dallas county, of “ theft of a steer.” The pardon was for a conviction for “ cow stealing” at the September term, 1878, of the district court. Whilst it has been held that if a pardon misrecites the offense, that would render it inoperative (1 Whart. Crim. L. (5th ed.), § 766, and note; Hunnicutt v. The State, 18 Texas Ct. App., 521), we cannot say that the offense is misrecited in this instance. In common parlance and acceptation we cannot but say that “ theft of a steer ” is not embraced in the general charge of “ cow stealing.” It was shown by proof that the witness had never been but once convicted and sentenced to the penitentiary in the district court of Dallas county. “The rule is, in the absence of fraud, a pardon will be good though it states the date of the conviction incorrectly, if it was intended to cover and does cover the particular offense.” (1 Bishop’s Crim. L., § 906; Hunnicutt v. The State, 18 Texas Ct. App., 521.) Under the facts as shown, we are of opinion the pardon was valid and restored the competency of the witness.

4. Objection was further made to the competency of the witness •Polser, and a motion was made to withdraw and exclude his testimony from the jury, because this witness had, on the day after the homicide, stated before the grand jury that he himself had committed the homicide, and that, after he had been placed in jail for the killing, two members of the grand jury told him that if he would change his testimony and state that he did not do the killing, he would be turned loose,— whereupon he, Polser, again went before the grand jury and testified that he did not do the killing but that defendant Hunnicutt did. Wherefore it was insisted that the witness was a bribed witness, and that his testimony should have been excluded from the jury. The matters stated are such as should have been submitted to the jury as affecting the credibility of the witness; they were not properly addressed to the court either as to the competency of the witness or the admissibility of the evidence. Having received a valid pardon, as above shown, the facts complained of did not render him incompetent to testify under any of the conditions named in the statute (Code Crim. Proc., art. 730), and it was for the jury alone to pass upon the credibility of the witness and the weight of his testimony.

5. After the State had closed its testimony the defendant moved the court to require the State to introduce as witnesses three other parties who were shown to have been present at and eye-witnesses to the shooting,— to wit, George Waller, John Herndon and Ike Hunnicutt, and it was urged as ground for the motion that the only eye-witness of the transaction called to testify by the prosecution was the witness Polser, who was an ex-convict, who had admitted that he himself had done the killing, and who afterwards had agreed to testify otherwise under a contract of immunity. Upon this point the writer, in what follows, expresses alone his individual views.

In his work on Criminal Pleading and Practice, Mr. Wharton says, “the prosecution is not at liberty to put in part of the evidence making out its case and then rest. It is bound, under ordinary circumstances and when this can be done without undue cumulation of testimony, to call the witnesses present at the commission of the act which is the subject of the indictment.” (Whart. Crim. Pl. & Prac. (8th ed.), § 565.) In his work on criminal evidence, the same learned author says: “ The prosecution is usually bound to call aíl the attainable witnesses to a transaction which is the subject of examination. Thus, on a trial for murder where the widow and daughter of the deceased were present at the time when the fatal blow was supposed to have been given, and the widow was examined on the part of the prosecution, Patteson, J., directed the daughter to be called also, although her name was not on the indictment, and she had been brought to the assizes by the other side. ‘Every witness,’ he said, who was present at a transaction of this sort ought to be called ; and even if they give different accounts it is fit that the jury should hear the evidence so as to draw their own conclusion as to the real truth of the matter.” (Whart.’s Crim. Evid. (8th ed.), § 448.) The body of this text is taken from the rules announced in Roscoe’s Cr. Evid. (7th ed.), p. 135.

In Hurd v. The People, 25 Mich., 405, it is said, “ the prosecution in a criminal case is not at liberty, like a plaintiff in a civil case, to select out a part of an entire transaction which makes against a defendant, and then put the defendant to proof of the other part, so long as it appears at all probable from the evidence that there may be any other part of the transaction undisclosed, especially if it appears to the court that the evidence of the other portion is attainable. . . . The English rule goes so far as to require the prosecutor to produce all present at the transaction, though they may be near relatives of the prisoner. Doubtless where the number present is very great, the production of a part of them might be dispensed with after so many had been sworn as to lead to the inference that the rest would be merely cumulative, and there is no ground to suspect an intent to conceal a part of the transaction. Whether the rule should be enforced in all cases, as where those not called are near relatives of the prisoner, or some other special cause for not calling exists, we need not determine; but certainly, if the facts stated by those who are called show prima facie or even probable reason for believing that there are other parts of the transaction to which they have not testified, and which are likely to be known by other witnesses present at the transaction, then such other witnesses should be called by the prosecution, if attainable, however nearly related to the prisoner.”

In The State v. Magoon, 50 Vermont, 333, it is said: “In criminal prosecutions the State is bound to produce and use all witnesses within reach of its process, of whatever character, whose testimony will throw light upon and characterize the transaction under inquiry, whether it tends to convict or acquit the respondent, and hence it is not to be prejudiced by the character of the witnesses it produces and uses. The public, in whose interest the prosecution is carried forward, has as much interest in establishing the innocence of the respondent, if he be innocent, as his guilt if he be guilty.”

It does occur to me, if there ever was a case in which the rules above announced should obtain, the one at bar was the case. The prosecution was claiming a conviction mainly upon the testimony of a felon, whose competency had to be restored by pardon before he could even testify. Then again, he was the self-confessed murderer himself, and his confessions had been twice sworn to by him,— at the inquest and in the grand jury room; and on this trial he testified, moreover, that he had been promised immunity if he would change his testimony. Such testimony, coming from such a source and flowing through such a tainted channel, does not commend itself as satisfactory or conclusive in the absence of other attainable evidence, which might be adduced with reference to the transaction. It may be that these other eye-witnesses are incompetent, but this is not shown by the record. If kinsmen of defendant, that did not disqualify, however much it might have affected their evidence in the minds of the jury. Polser may have sworn the truth notwithstanding these adverse appearances against him. It cannot be said he was corroborated by the confessions of defendant as testified to by the State’s witness Minton, and that between the two the whole res gestee of the transaction was developed, and that it was unnecessary to adduce other evidence. In some very material respects the confessions differ from Polser’s statement. The confessions make a case of defense against a direct assault upon defendant; whilst Polser’s statement proves a shooting in his, Polser’s, defense. Besides this, the rule is well settled that deliberate and voluntary confessions of guilt should be received and weighed with great caution, because liable to misconstruction, easily fabricated, and often, though false, difficult to cóntradict. (Gay v. The State, 2 Texas Ct. App., 127; Walker v. The State, 2 Texas Ct. App., 326; Thuston v. The State, 18 Texas Ct. App., 26.)

But it may be urged that defendant could have put these same witnesses upon the stand to prove the facts they knew, and thereby establish by them, if he could do so, the falsity of Polser’s evidence and his own innocence. To force him to do so “ would be to deprive the defendant of the benefit of the presumption of innocence, and to throw upon him the burden of proving his innocence. It is the res gestee, or the whole transaction, the burden of which rests upon the prosecution, so far at least as evidence is attainable. It is that which constitutes the prosecutor’s case, and as to which the defendant has the right of cross-examination; it is that which the jury are entitled to have before them, and until this is shown it is difficult to see how any legitimate inference of guilt, or of the degree of the offense, can be drawn.” (Hurd v. The People, 25 Mich., 404.) . Under the peculiar circumstances of this case the writer is of opinion that defendant’s motion to compel the State to put these other eye-witnesses upon the stand was reasonable and should have been granted. These are the individual views of the writer upon this point.

6. On the former appeal in this case the charge of the court was held to be erroneous in restricting the right of defendant to kill solely for the prevention of murder. It was said, “a person when attacked need not resort to other means than killing, where the assault by the deceased indicated an intention either to murder, maim or inflict serious bodily injury, but may kill at once and with the most effective means, without resort to other means for the prevention of the injury.” (Hunnicutt v. The State, 18 Texas Ct. App., 498.) In his charge to the jury in this case the learned judge upon this point instructed, with reference to the two phases of the case presented by the evidence, as follows, viz.: “If defendant killed F. E. Umphress, and if, when he fired the fatal shot, said Umphress was making an attack upon Joe Polser which reasonably indicated to defendant that said Polser was then and there in danger of death or serious bodily injury at the hands of said Umphress, then such killing would be justifiable homicide, because, under such circumstances, defendant or any other person had the right to kill said Umphress to prevent said threatened injury to Joe Polser. And if you believe that the killing occurred under these circumstances, you will acquit defendant; and if you have a reasonable doubt as to whether the killing occurred under these circumstances, you will acquit the defendant.

“ If defendant did kill F. E. Umphress, and if, when he killed him, said Umphress was in the act of making an attack upon defendant which reasonably indicated to the mind of defendant that said Umphress was about to kill defendant, or was about to inflict upon defendant some serious hodily injury, then, under such circumstances, defendant would have the right to kill him, and the killing would be in self-defense. And if you have a reasonable doubt as to whether the killing occurred under these circumstances, you will acquit the defendant.”

These instructions are in strict conformity with the law as announced above in our previous opinion. There is a subsequent paragraph of the charge, however, which is in direct conflict with these instructions, and which deprives defendant of his right to kill on reasonable expectation or fear of death or serious bodily injury, without a previous resort to all other means; and a special requested instruction correcting this conflicting and contradictory charge was refused by the court.

It is insisted that a party is not justifiable in taking life simply “ to prevent serious hodily injury,” until he has first resorted to all other means for the prevention of the injury. It is said that the only cases in which homicide is justifiable under our Code are those enumerated in article 570, and these are for the prevention of “ murder, rape, robbery, maiming, disfiguring, castration, arson, burglary and theft at night,” etc.; that in every other case of “ violent assault or attach,” article 572 applies; and that, in accordance with said article, all other means must be resorted to for the prevention of the injury, before the killing is justified in law. The position is that article 574 is but a part of, and intended alone to qualify, article 572. One of the positions assumed is that the word “attack” is for the first time used in article 572, and that, because article 574 gives the requisites of “ the attack,” therefore it must refer only to said article 572.

The speciousness and fallacy of this position is easily seen when we reflect that it is impossible to conceive how a party could commit any of the personal injuries mentioned in article 570, such as murder, etc., unless he did so by an “attack.” All the personal injuries mentioned in article 570 are injuries which can alone be it> flicted by means of an “attack.” Article 574 reads: “The attack tipon the person of an individual, in order to justify homicide, must be such zts produces a reasonable expectation or fear of death or seriotis bodily injury.” A party is about to murder me, that is, he is making an attack upon me which produces a reasonable expectation or fear of death,— it may be murder or it may not,— it reasonably appears to me that whatever it is I may expect and I do fear death from it: must I sacrifice my life in stopping to debate and determine the question of murder or no murder? And must I hunt round for other means, and perhaps lose my life in doing so, before taking my assailant’s life? If this be the law, then article 570, Which justifies slaying to prevent murder, is entirely abrogated ánd is a delusion and a fraud. My assailant is about to inflict serious bodily injury upon me; my expectation that he is going to do So is reasonable; his attack may disfigure me or maim me; I cannot tel'I Xvhether it Will or not. Am I to wait until his intention is put beyond all doubts by the loss of a limb or an eye, or the breaking óf hay "nose; Or must I resort to all other means, and in doing so sacrifice tny limb, eye, or the shape of my nose, before I can take his life to prevent the injury? If such is the law, then article 570, with regard to maiming or disfiguring, may be rendered entirely worthless and nugatory. A reasonable expectation or fear of death tit the hands of another who is making an unlawful or violent attack upon "me is a reasonable expectation or fear of murder, and I have a "right to kill upon such reasonable appearances without resorting to other means. And so of serious bodily injury. It is impossible to tell Whether the violent and unlawful attack is going td stop short o'f maiming or disfiguring; I know it is going to produce seriotisbbdily injury unless I meet it promptly; and in order to. prevent it I have the right to kill without resorting to other means. Án assault and battery, causing pain or bloodshed, is adequate cause sufficient to reduce a homicide from murder to manslaughter. (Code Crim. Proc., art. 597.) If this be so, then one causing seriotis bodily injury in reason should justify the homicide.

We are of opinion that article 574 was never intended solely as an addenda to or qualification of article 572, though it may be applied to it, but that it was intended as an independent declaration With regard to the law of self-defense, which should be applied to all attacks "producing a reasonable expectation or fear of death or Serious bodily injury. It is but folly to contend that it is no part of the article 570, because there are twro or more articles intervening, presenting different aspects of the law* of justifiable homicide. Just á"S Well contend that article 573, w'hich declares that retreat is not necessary, is also inapplicable to article 570, because thus separated from it. It will hardly be contended, we imagine, that article 573 should not be given in charge on a trial for murder where self-defense was claimed in justification under article 570.

But we will not pursue the discussion further. This question has been discussed time and again, and has become fixed and settled in the jurisprudence of this State by the following authorities: Blake v. The State, 3 Texas Ct. App., 588; Ainsworth v. The State, 8 Texas Ct. App., 538; Kendall v. The Stale, 8 Texas Ct. App., 577; Bright v. The State, 10 Texas Ct. App., 68; Foster v. The State, 11 Texas Ct. App., 105; Jordan v. The State, 11 Texas Ct. App., 448; Boddy v. The State, 14 Texas Ct. App., 540; Branch v. The State, 15 Texas Ct. App., 103; Short v. The State, 15 Texas Ct. App., 376; Gilly v. The State, 15 Texas Ct. App., 301; Sterling v. The State, 15 Texas Ct. App., 256; Cartwright v. The State, 16 Texas Ct. Ápp., 473; Morgan v. The State, 16 Texas, Ct. App., 595; Jones v. The State, 17 Texas Ct. App., 611; Hunnicutt v. The State, 18 Texas Ct. App,, 522. We believe these decisions to be correct, and if they were not we would be indisposed at this day to overrule them.

The two instructions quoted above from the charge of the court were correct and in harmony with these decisions, and the court erred in confusing and neutralizing them by a subsequent paragraph of the charge, and should have given the first special requested instruction of defendant.

For the errors we have pointed out in the charge, the judgment is reversed and the cause remanded.