Lum v. State

11 Tex. Ct. App. 483

• Court: Court of Appeals of Texas
• Decided: July 1, 1882
• Status: Published

Opinion

Winkler, J.

At the September term of the District Court of Liberty county, A. D. 1881, the appellant was tried and convicted of murder in the second degree, and sentenced to serve a term of fifteen years in the State penitentiary, on an indictment filed on September 23, 1880, which charges that this appellant and one Ed. Green did kill and murder one William Churchill, alleged to have been committed in Liberty on April 1, 1875. The testimony adduced at the trial was voluminous and largely circumstantial.

The main features of the evidence may be succinctly stated as follows: About March 13, 1875, the appellant, Ed. Green, William Churchill and a negro boy were seen passing the road leading from the neighborhood in which the parties named lived, on the west side of the Trinity river, to Liberty on the east side of the river. Lum, Green and the deceased were seen together in Liberty, during the day, by several persons who testified in the case at the trial. It was shown that these same parties, Lum, Green, Churchill and the negro boy, re-crossed the river later in the afternoon of the same day, and were seen by different persons along the road returning, until within a short distance of the locality where they resided, and afterwards the parties, except Churchill, the deceased, were seen pursuing their route in the same direction.

One witness testified to the following additional facts, which we quote from the statement of facts in the language of the witness: “I saw the same parties coming back from Liberty in the evening of the same day that they passed our house going towards the town of Liberty; when I saw them Mr. Churchill was bleeding on the face. I was in the woods about one mile from my father’s house, in the direction of the town of Liberty, when I saw them coming back. I saw Pat Lum, the defendant, strike at Churchill; he was behind him when he struck at him. He reached over and struck at Churchill in the back; he seemed to have struck him a little below the shoulder-blade. I then saw them —- Pat Lum and Ed. Green—■ dragging the body off in the woods on the right-hand side of the road as you go from the town of Liberty. The country where this was done is broken and commences declining from the road on the side where they dragged the body, and continued till you get in the bottom. They dragged the body off in the woods, from out of my sight from the side of the road where I saw the defendant strike at Churchill. The body was afterwards found in the same direction where I saw them dragging it, about one mile from my father’s house, in the direction of Liberty and on the right-hand side of the road going from Liberty.”

- This seems to have been the last witness who saw all the parties together. This witness on cross-examination said that when he first saw the parties on their return from Liberty, “going up the road the negro was in front, Ed. Green next, Churchill and Pat Lum behind; then they passed out of sight behind some underbrush and a turn in the road; the noise of loud talking as if quarreling going on. I passed to the west side of the road while they were hid from my sight. They then got into an open place when I saw them again, and Lum then struck the blow. The noise they made first attracted my attention; they spoke as though they were quarreling.”

Further along and being still on cross-examination, this witness testified that “The body was found thirteen days after I saw this; which made it on the 26th of March when the body was found. All this occurred about one mile from my father’s house; after seeing this I went straight home; my father, mother and sister were there; when I returned daylight had nearly gone. After I heard the loud talking, before I saw Lum strike at William Churchill, was not long, and the quarreling continued up to the striking. Lum was on the left-hand side of Churchill when he struck at him, about one half horse-length behind Churchill. My father and John Stiles found the body. It was about ten or twelve days after I saw the occurrence before they began to look for the body.”

The next witness was the father of the first witness. This witness, after testifying to the fact of seeing the same persons pass his house going toward Liberty, stated: “On the evening of the same day, they passed back without Churchill. Before they came by, we heard some screaming in the direction of Liberty. It was in the afternoon when they passed back; I cannot place the time very well. Ed. Green was leading the horse that Churchill was riding in the morning. The horse had a saddle on him. The negro was ahead, and he waited at the creek until they—the other two, Pat Lum and Ed. Green-—came up. I saw the dead body of Churchill about thirteen days afterwards, on Good Friday, the birthday of one of my daughters. Ed. Gill came one night and told me that somebody had murdered William Churchill, and the Roses told me that they had seen Pat Lum, Ed. Green and a negro boy looking about the place where the body was found, with a lantern. John Stiles and myself found the body about the same place where the shrieks came from, about one hundred paces from the public road, on the north side of the road. John Stiles first found the body; he was lying on his left side. Behind his left shoulder-blade there was a cut about four inches deep; there seemed to be a cut of a knife on his face near his mouth, and the mark of a blow on his head. The body was very much swollen, but I could see it was the same man who had passed my house that morning with the defendant, Ed. Green, and the negro boy, on their way to town.”

John Stiles, who seems to have been the first person who discovered the dead body, among other things, said, in giving his testimony with regard to the identity of the body, as follows: “Any person who knew the man well before he was killed might have identified him. He had dark hair. Mr. Byrne told me he heard some one scream down that way, and insisted on going to look for him in that direction. Mr. Byrne remained with the body, and I went for a justice of the peace. I got back about eight or nine o’clock, probably later, that night. I had never seen Churchill before that time. I saw him dead; never have seen him since. He was a stranger in this country, and had not been here long.”

We quote from another witness who seems to have seen the parties on their return from Liberty in the afternoon. He says: “I met them about half-way between 'Bogers’s place and the ferry. We all took a drink. Churchill rode by, and it appeared that there had been some difficulty between Churchill and the ferryman; something was said and Churchill gave it “the damn he.” Pat Lum, the defendant, said, “ do you call me a damn he, sir?” We took another drink. After they went ahead I saw defendant whipping Churchill with a switch. Churchill stood and took it without saying anything, and without offering any resistance. They all got down at Mr. Bogers’s and got some water, except Churchill. I got him the water and he said to me, ‘ Mister, this is mighty bad, but I reckon it will be all right.’ That was after Lum had whipped him. I saw Pat Lum and Ed. Green one week from that day. I rode up to Mr. Ben Green’s, and Ed. Green and Pat Lum came out. I said to them, 1 Boys, they will give you fellows hell about that fellow.’ They said they had not seen the man Churchill since he fell off his horse at the Black Hill. The Black Hill, as I understood it, is about two miles from Mr. Byrne’s place, towards the town of Liberty. When they left Mr. Bogers’s place, they went in the direction where the body was afterwards found, up the road. I have never seen the man Churchill since that day, that I know of.” We have not attempted to set out the entire testimony of these witnesses either on their direct or cross-examination, nor to extract from any other witness’s testimony, many of whom testified in the case.

The foregoing extracts will serve to indicate the general character of the case as developed upon the trial. We do not deem it important to consider in this opinion all the several grounds presented in the assignment of errors. The controlling questions presented in the brief of counsel for the appellant, seem to us to be: First, the sufficiency of the evidence to support the verdict and judgment, mainly as to the sufficiency of the testimony as to the identity of the body of the deceased. Secondly, alleged error in the ruling of the court upon the testimony offered by the defendant for the purpose of impeaching the testimony of certain of the State’s witnesses; and thirdly, supposed error in the failure of the court to submit to the jury the issue of manslaughter.

I. Whilst it is true that “ Mo person shall be convicted of any grade of homicide unless the body of the deceased, or portions of it, are found and sufficiently identified to establish the killing ” (Penal Code, art. 549), still we are. of opinion that in this case, if the witnesses for the State are worthy of belief, the body found some thirteen days after the killing is the body of the missing man William Churchill, and that he is the same man charged to have been murdered. The proof of the witnesses shows, we think satisfactorily, that the body found was that of the identical person who was seen going to and returning from the town of Liberty, in company with the appellant, Ed. Green and the negro boy, and the man the appellant was seen whipping with a switch on the return from Liberty, and who was last seen alive by the witness who heard the wrangling and saw the striking at the deceased by the appellant. The place where the lick would have struck deceased corresponded with the wound which appeared on the body when found, and the body was found in the direction of the place where screaming had been heard on the same afternoon. The three other persons who were together and with the deceased in the morning were seen returning without the deceased, and having charge of the horse he was riding in the forenoon. And still further, the body was found in the same direction one witness had seen the appellant and Ed. Green dragging the body of Churchill down the hill. The testimony of Mr. Byrne alone was sufficient to not only identify the body as being that of Churchill, but his and other testimony showed that he had come to a violent death and at the hands of the appellant, or that of the appellant and Green acting in concert.

II. It is shown by one of defendant’s bills of exception that the defendant offered evidence to discredit Mr. Byrne. The State’s proof (the bill recites) shows, if it shows any offense, that it was committed in March, 1815. The defendant, Pat Lum, was a short time afterwards before the examining court. The witness Byrne was a witness -before the examining court, and subsequently a witness on the hearing of a habeas corpus sued out by Pat Lum in the same case. The witness Byrne had been living hr the neighborhood where the offense was alleged to have been committed for about five years before the time at which said offense was alleged to have been committed, and was living there when he testified in the examining court and on the hearing of the habeas corpus, and for some time after. But the witness for the past two or three years had been hving hr Beaumont. The defendant asked the witnesses Ed. Gill and John Green, as follows: “ Do you know the general character of the witness Mr. Byrne for truth and veracity among his neighbors at the time he lived in this county, and at the time he testified before an examining court in this case, and on the hearing of a habeas corpus sued out by defendant in this case? ” The State’s counsel objected to the question and the court sustained the objection; and the defendant took a bill of exceptions to the ruling.

Abstractly considered, we are of opinion the question was a proper preliminary question to ask a witness who, is offered for the purpose of impeaching a witness on the opposite side of the case. The rule cited by the counsel for the State, to the effect that, “When a witness has a fixed domicile, the impeachment of his character must relate to the time of the trial and the place of his domicile,” is not applicable to or decisive of the question here presented. Generally, when a witness is offered for the purpose of impeaching another, he must show his competency to testify as to the general character of the witness sought to be impeached, among his neighbors. It Is not what the opinion of the witness may be which qualifies him to testify as an impeaching witness; he must be able to testify to the general character of the witness sought to be impeached among his neighbors,—his general character, or the general reputation he has established among those among whom he has lived, or with whom he has most associated. The presiding judge, in giving his reasons for the ruling complained of, says: “ The question involved in this ruling was simply this,— the witnesses were asked if they knew the reputation of Byrne for truth and veracity when he lived in this county three years ago, and when he testified some years ago before the examining court in this case. It was objected to by the State’s attorney on the ground that they should only testify to the reputation of Byrne for truth and veracity in the neighborhood he now resides in, and testify to his present character for truth and veracity, and the court sustained the objection, stating that the witness could testify whether he knew Byrne’s character at this time,— the time he was giving his testimony. The evidence of the examining court was not introduced upon the trial. The witness Gill did state to the jury that Byrne’s reputation for truth was not good when he lived in this county in 1815, but that he was not acquainted with it now, and did not know how it stood and could not testify as to what his character at this time was for truth and veracity.”

In general the authorities all agree that it is a requisite of law that, in order that an impeaching witness may be competent to impeach another witness, he must know what his general character is among his neighbors for truth and veracity. This question was a proper one. The ruling of the court was prejudicial to the rights of the defendant under the law. (See in point, Kelly v. State, 61 Ala. 19, and Sleeper v. Van Middlesworth, 4 Denio, 431.) When a certain state of things is once proved to exist, the law presumes its continuance until a change is shown. Therefore, when a witness, called to impeach the character of another witness, offers to speak as to the general character of the witness attacked, as it existed some two or three years before the trial, it is not too remote and its rejection is error. State v. Lanier, 79 North Carolina, 622, and authorities there cited.

III. Did the court err in omitting to charge on manslaughter? From a careful examination of the testimony, we fail to discover any proof which presents an issue of that character, or shows any probable cause, to reduce á voluntary homicide from murder to manslaughter, or which would excuse, or justify the act of killing. It is the duty of a trial judge to measure his charge by the evidence adduced, and to give instructions to the jury as to every legitimate deduction to be drawn from the evidence; but when he has done this, the law’s demands are satisfied. The testimony did not call for an instruction on manslaughter as that grade of culpable homicide is defined by law.

There were objections raised to the competency of two of the jurors summoned for the trial, as shown by bill of exception. It is shown that the defendant avoided these jurors by peremptory challenges, and that they did not serve as jurors on the trial. It further appears that the defendant did not exhaust his peremptory challenges. In such a case, even if there had been any erroneous ruling, it could not be cause for reversing the judgment by this court, as has been repeatedly decided.

The charge of the court is deemed to be substantially correct, under the proofs. There were no exceptions taken thereto, at the time of its delivery, nor were any additional charges asked on either side.

The indictment, notwithstanding the objection raised thereto in the overruled motion in arrest of judgment, is amply sufficient so far as this appellant is concerned, and he alone was tried under it.

After a patient consideration of the case, our conclusions are that the judgment must be reversed on the ruling on the evidence.

Reversed and remanded.