Kinney v. State

144 S.W. 257, 65 Tex. Crim. 251, 1912 Tex. Crim. App. LEXIS 90

• Court: Court of Criminal Appeals of Texas
• Decided: February 7, 1912
• Docket: No. 1414.
• Status: Published

Opinions

HARPER, Judge.

Appellant was indicted, charged with murder, and when tried was convicted of murder in the second degree and his punishment assessed at twenty years confinement in the penitentiary.

There are a number of bills of exceptions in the record, some of which we can not consider, the court rejecting them, stating as a reason for refusing them: “The bill is disapproved for the reason that the supposed error mentioned therein has never been called to the attention of the court, either at the time of the trial or in the motion for a new trial, or in defendant’s amended motion .for a new trial, and the question therein has never been raised in any way until this bill was presented for approval on the 22d day of May.” This was long after the motion for a new trial had been overruled and long after the adjournment of court for the term. Article 723 of the Code of Criminal Procedure provides that the judgment shall not be reversed unless the error in the charge was excepted to at the time of the trial, or be complained of in the motion for a new trial. Ho exception to the charge of the court was reserved at the time of the trial and the matter not being complained of in the motion for new trial, we are prohibited by law from considering this matter. This ruling applies to bills Hos. 14, 15 and 19.- However, those bills which the court states the questions raised were not presented until presented in the amended motion for a new trial, although not excepted to at the time of the trial, bring the matter properly before us for review. The statute gives appellant the right to assign errors to the charge of the court in the motion for a new trial, and while the questions raised were not contained in the original motion filed, yet the question of filing an amended motion after two days had elapsed, was one of discretion to be exercised by the trial judge, and having granted permission to appellant to file an amended motion, all questions properly presented in this amended motion must be considered by this court. The reason that the statute requires that the supposed errors be excepted to and stated at the time, or in the motion for a new trial, is that the trial judge may have an opportunity to pass on all these questions, and if he is convinced that an error has been committed, he can by granting a new trial avoid the expense and delay of an appeal. If all the matters are called to the attention of the trial judge prior to the time of overruling the mo tion for a new trial by proper bills of exception, or by grounds stated in the motion for á new trial, he is given an opportunity to pass on all questions thus raised, and it is made the duty of this court to pass on all questions thus presented, but as hereinbefore stated, those issues which are presented for the first time in this court, and to which no exception was reserved at the time of trial, nor presented in the motion for new trial, the trial court had no opportunity to pass thereon, and the statute prohibits us from considering them on appeal.

Bills Hos. 21 and 22 are marked refused by the court, and should not be contained in the record. If the court refuses same we must presume the matter did not occur or no exception was reserved. The statute provides for bystanders’ bills if the court refuses a bill, and if the bill is refused, and no bystander’s bill presented, no question is presented we can review.

The court did not err in overruling the application for a continuance. It appears that the witness Reed Tevis appeared and was not used by defendant. Diligence as to the other witnesses is not shown, this being the second application for a continuance. The contest filed to this application sets forth facts which show a total lack of diligence, and we must presume that the court properly exercised his discretion, especially as no process is attached to the application.

It appears from the State’s evidence that defendant and one Kerr had a row, and that deceased at that time cursed and used abusive language to defendant, and called him a coward about jumping on as small a man as Kerr. Defendant and Mr. Kuhlman were at the Amériean bar shortly after this and defendant filled his pocket with cartridges; he did not get a gun there, as he says that Fisher had soaked the gun left there by Townsend, it being a sawed-off shotgun. Defendant and Kuhlman went from the American bar to the Gombert bar, when this conversation took place, according to Mr. Kahn. He says: “I was in Gombert’s saloon on the night of the killing of Walter O’Brien; I saw the defendant Frank Kinney there; I also saw John Kuhlman there; I had a conversation with John Kuhlman first, and then afterwards both talked to me. . . . Len McFarlane, Alph Baker and myself were just about to take a drink when John Kuhlman came in; he said, ‘Kahn, I want to see you a minute;’ I said, ‘We are taking a drink now, and if you want to see me, come on here and when I am through I will talk to you;’ so he came up there, and I said, ‘What is it, John?’ and he said, ‘Have you got a shotgun?’ I said, ‘Ho, I have not; what do you want with a shotgun?’ He said, ‘I have got a friend that wants to kill a damn son-of-a-bitch,’ or words to that effect, and I said, ‘Well, if I did have one, you couldn’t get it for any such purpose as that;’ and I said, ‘Who is your friend?’ and he in a loud tone of voice, said, ‘Oh, Frank, come here;’ and about that time I saw Frank coming in from the outside through the. screen door, and he came on up to where we were talking, and I said, ‘What’s the matter, Frank, are you in trouble?’ and he said, ‘Yes, sir; Walter O’Brien jumped on me and abused me, and I be damned if I am going to stand for it;’ and I talked to them a few minutes and finally agreed that Frank Kinney was going to whip Fisher and John Kuhlman was going to whip Otto Meyer, they took a drink there and left, and that is all I know of it.” The witness Len McFarlane testified in substance to the same facts.

It appears from the State’s testimony that when defendant and Kuhlman left the Gombert saloon, they went to a telephone and called Wm. McBride, who testified that on the night of the homicide defendant called him over the telephone after nine o’clock at night and told him he wanted to borrow his (witness’) gun, as he was going hunting; he agreed to loan it to him, when defendant asked him to bring it to Charley Alios’ place of business. Witness says he took the gun to the place suggested, and there met defendant and John Kuhlman. He says be asked defendant where he was going to get shells, when defendant said he had a pocket full of them, and showed him some, when defendant and Kuhlman went off together. It is shown they took a street car, and went near the place where deceased was working and got off the car. From this time the record does not disclose where Kuhlman went, but a witness, Mr. Hubbard, says he was going toward the saloon where deceased was at work, when defendant passed him with a gun in his hands, and before ,he got in the saloon he heard a gun fire. Witness Kerr says he was in the saloon with deceased and one Fisher", who is now dead, and he saw defendant throw the door open with one foot and raise the gun, when witness dropped to his hands. That the gun was first pointing towards him, witness, but defendant turned the gun towards deceased and fired. That deceased hollered, “Hold!” was all he said and fell behind the bar. That Fisher said, “You son-of-a-bitch, what are you doing?” and as the gun fired he and Fisher both ran out of the house. Witness Pete says he was at work upstairs in the building when he heard the shot and went downstairs at once, and went in the saloon. Deceased, who was lying behind the bar, flat on his back, remarked to him, “Pete, for Christ sake, stop the blood; I am bleeding to death,” and he got a towel and wrapped his arm, when deceased said, “Defendant Kinney had told him he was going to kill him, but he thought defendant would wait until he got outside and take a punch at him.” Witness further testified that deceased had no weapons, and he saw "none close to him. The doctor testifies this wound which entered his right side and pierced his lungs was the cause of death.

By proper bills defendant objected to the witnesses Kahn and MeFarlane testifying to what Kuhlman said; objected to the witness Kerr being permitted to state what Fisher said at the time of the shooting and objected to witness Pete being permitted to state what deceased said to him when he entered the saloon. The statements of Fisher and Pete were admissible as res gestae. They are virtually part and parcel of the transaction. The remark of Fisher was made as the shot was fired, as was the remark of deceased, and is a part of the event, was addressed to the defendant. He must have heard it and made no reply. Witness Pete shows he was the first person to deceased, and only a few minutes had transpired from the shooting until the statement was made. (For authorities see section 1236, White’s Penal Code, section 1085, White’s Code of Criminal Procedure, and section 339, Branch’s Criminal Law.)

In regard to the conversation testified to by ICahn and McFarlane, defendant denies hearing it, but the facts and circumstances introduced by the State, that he had gone to the American bar in search of a gun, and filled his pocket with cartridges; that Kuhlmafi and defendant started to Gombert’s saloon together, Kuhlman saying he could get a gun from Kahn; that when Kahn asked him who it was wanted the gun, Kuhlman said, “Oh, Frank, come here, when defendant came in the door and told witness that deceased had jumped on him and abused him and he be damned if he was going to stand it.” That when they left there they got a gun from McBride, and defendant went straight to the place of deceased and shot him. These facts would indicate that defendant knew Kuhlman was going to ask Kahn for the gun, and was close enough to hear what Kuhlman said, because he took up the conversation, and said deceased had cursed and abused him and he was not going to stand it. In regard to this testimony, the court instructed the jury:

“If you believe from the evidence, beyond a reasonable doubt, that the defendant ,and John Kuhlman, agreed between themselves, or conspired together to kill Walter O’Brien, and that in pursuance thereof defendant killed him, then I charge you that any act or declaration of John Kuhlman in furtherance of said common purpose done or said by him in the absence of the defendant, and which may have been introduced in evidence in this case is legal evidence in this case against defendant, and may be considered by you in finding your verdict, but if the evidence fails to satisfy you, beyond a reasonable doubt, that such agreement or conspiracy existed, then such acts or declarations of John Kuhlman, done or said in the absence of the defendant is not legal evidence in this case against the defendant and you will give them no consideration whatever, but will wholly disregard them in finding your verdict in this ease.”

The evidence would authorize this charge. Deceased said defendant and Kuhlman were together when he had the words with defendant about the witness Kerr; they were together at the American bar when defendant filled his pocket with cartridges; they left there together and went to Gombert’s saloon, where Kuhlman said he wanted a gun for a friend who wanted to kill a son-of-a-bitch, and was in such close proximity that when Kuhlman called him to appear, and by his conversation indicated he was the friend for whom Kuhlman wanted the gun; they leave there together and go to Alios’ and get the gun from McBride; they return together to a point near where deceased is shot, when defendant steps in the saloon and kills O’Brien. Under this charge the jury was instructed to ignore the remarks of ICuhlman (even though the jury might have believed under the evidence he heard them) unless they believed they were acting together. This was as favorable as could have been desired.

Neither was there error in permitting the witness Kerr to detail the entire conversation had with deceased just before the homicide, on redirect examination. The defendant on cross-examination had developed that a conversation was had, and elicited such portions as he desired; the State was then entitled to let the jury hear all that was said that involved this defendant that they might intelligently pass on the matter.

It appears that on the evening of the killing Fisher had borrowed a pistol from J. W. Oliver, and defendant offered to prove by Oliver that Fisher had told him the day subsequent to the killing that he (Fisher) had delivered the pistol to deceased just a short time before the homicide. He also desired to prove by the witness other statements of Fisher, and that he, witness, in obedience to the statement of Fisher had gone to look for the pistol. The witness testified he had never seen the pistol since he loaned it to Fisher, and did- not know what had become of it. The statements of Fisher would be hearsay pure and simple, and the court did not err in excluding this testimony.

Defendant in a bill states he desired to testify that he had told a number of people, naming them, that he was going hunting prior to any trouble either with Kerr or deceased on that day. 'The court, in approving the bill, says:

“This bill is approved with the explanation that the question asked by defendant was: Go ahead and tell the jury what you said about going hunting and who you talked to, -giving their names and the different parties around town that you talked to about going hunting that day. The court sustained the objection to this question, but ■the court did not exclude any testimony showing preparation to go hunting.”

What he might have said to the different parties would not have been admissible, and as qualified by the court the bill presents no error.

There was no error in the court failing to submit a charge on manslaughter. As hereinbefore stated, it was shown on behalf of the State that defendant became angry at the remarks of deceased, and went to one saloon in search of a gun, and filled his pocket with cartridges; he then went to another saloon where Kuhlman tried to borrow a gun for a friend to kill a man, and defendant said it was deceased he was angry with; failing to get a gun at this place, Kuh] man and defendant got a gun from McBride, when defendant returns to the saloon and kills deceased. This would raise no issue but murder. Defendant testified he was going hunting and Fisher was going with him. That he was hunting Fisher and seeing him in the saloon he went in and asked Fisher if he was ready to go, and when he asked that question deceased made an insulting remark, and as he thought, reached for a pistol, when he shot him—that he shot deceased to save his own life. This presented self-defense. There is nothing in the record showing sudden rage, resentment or terror, accompanied by adequate cause to reduce the offense to manslaughter.

The paragraph complaining of the charge on express malice and other parts of the charge, presenting murder in the first degree, presents no error. The jury found the defendant guilty of murder in the second degree only, and it is the rule of this court that error in the charge on murder in the first degree, if error there be, would be immaterial error. Neither was there error in the court instructing the jury that if they believed beyond a reasonable doubt that defendant was guilty of' murder, yet if they had a reasonable doubt whether it was upon express or implied malice, they would give the defendant the benefit of such doubt, and find him guilty of no higher grade of offense than murder in the second degree.

The criticism of one sentence of the court’s charge upon self-defense is not a fair criticism of the charge. This sentence complained of appears wherein the court is defining self-defense at the close of the charge on murder in the first degree, and does not appear in the charge on self-defense proper, and when the court applied the law of self-defense to this case, the sentence complained of does not appear, but such charge is a full and fair presentation of the issue as made by the evidence.

The defendant excepted to the failure of the court to give a special instruction instructing the jury to ignore certain remarks alleged to have been made by the district attorney. This charge relates to matters in the bill which the court refused, and -as the court refused the bill of exceptions, the presumption must be indulged that the district attorney did not use the remarks or the court would have approved the bill. If the language was used, and the court refused the bill, the defendant should have proven up his bill as provided by the statute.

The appellant complains that the court in his charge submitted the issue of provoking the difficulty, and it is very questionable if this issue is raised by the evidence. If there is no evidence raising this issue, it is hardly conceivable that this charge could have resulted in injury to defendant.

The court very fairly submitted the issue of self-defense and as fully as defendant’s evidence called for, and if the evidence raises the issue of provoking the difficulty, this issue was properly presented by the charge. State’s counsel earnestly insists that defendant by his conduct, in going to defendant’s place of business, when he had testified that deceased had cursed him, and he had told Kahn he would be damned if he was going to stand it, and then going and getting a gun, in the light of deceased’s statement, that appellant had told him (deceased) that he was going to kill, fairly raises this issue. In the case of Goodwin v. The State, 39 Texas Crim. Rep., 408, this court held that although the court committed error in giving a charge on provoking the difficulty, the evidence not raising that issue, yet under the evidence in that case it was not such error as would be ground for reversal of the case. And in this case we have grave doubt that the issue of provoking the difficulty is in the case, but we are firmly of the opinion that even though it should be held that no such issue is in the case that under the evidence in this case such charge as given by the court was not calculated to and did not impair the rights of defendant, and under the provisions of our Code of Criminal Procedure it would not be ground for reversal of the case.

Judgment affirmed.

Affirmed.