GRAVES, Judge.
The appellant was convicted of murder with malice, as evidenced by the killing of L. M. Smith, and was assessed a penalty of twenty years therefor.
It appears that appellant, a minister, and also a carpenter by trade, had been divorced from his wife; and their children, one married girl and two young boys, were living with the wife. Mr. Smith had been coming to the divorced wife’s home,
after the divorce, and had at times taken her and her children to church. On the night of the fatal difficulty Mr. Smith and the boys, the daughter and her husband, and appellant’s former wife, had been to church, and upon their return to the home they found appellant in or near the driveway thereof. Appellant told his boys to bring him certain of his carpenter tools from the premises, and they proceeded to do so. In the meantime Mr. Smith had gotten out of the automobile, as had Mrs. Mangum also, at which time it appears from the testimony that appellant produced a pistol in his possession and Mr. Smith was shot twice therewith. The deceased seemed to have gotten the pistol away from appellant and gave it to one of the little boys, who laid it down in the driveway, and Mr. Smith went to and sat down on the gallery of the home, evidently in great pain, at which time appellant made an attack upon his former wife, and had her down on the ground beating her when the son-in-law struck appellant over the head with a brick, and with the help of others held appellant until the arrival of the officers. Mr. Smith’s wounds were serious, and from them he eventually died, hence the murder charge.
Appellant’s bill of exceptions No. 1 is voluminous, and occupies many pages of the record. The gist thereof, however, is a complaint that a prejudiced juror had gotten on the jury by reason of certain misstatements attributed to such juror on his voir dire examination, and that appellant, through no fault of his own, nor lack of diligence upon his part, had not had his case presented to a fair and impartial jury, it being claimed that this juror was prejudiced against the appellant, and had made statements to others prior to being accepted on the jury, evidencing such prejudice against appellant. We find the matter presented from both sides to the trial court by witnesses and affidavits upon the hearing of the motion for a new trial, and the facts relative to the mentioned juror and his statements were gone into fully before that court, who decided the matter, upon contradictory testimony, against the appellant’s contention, and we find ourselves of the same opinion as that of the trial court. It was his judgment that the juror was fair and impartial, after going fully into the matter, and we do not feel called upon to disturb his ruling thereon.
Bill of exceptions No. 2 is concerned with a series of questions propounded to the witness Denver Seale, an investigator for the district attorney’s office, who testified relative to a dying statement made to him by Mr. Smith. It appears that Mr. Seale had a conversation with the deceased relative to the
occurrence in which the deceased had received the wounds from which he later died, and that Mr. Seale then wrote his version of what the deceased said relative thereto, and brought the written instrument to the deceased, read it over to him in the presence of a witness, and the deceased signed the same. The questions asked Mr. Seale were, in substance: “Why didn’t a lawyer from the district attorney’s office go out to take this statement? * * * Were there any stenographers connected with the district attorney’s office to whom the witness had access, * * * and why didn’t the witness take a stenographer out there to take down verbatim this dying statement?” Objection was made to the answering of these questions, and same was by the trial court sustained. We think the trial court’s ruling thereon was correct.
Bill of exceptions No. 3 relates to the trial court’s ruling wherein he sustained an objection to the appellant being allowed to testify that “his boys had asked him to come back,” evidently meaning that they had asked him to return to their home where they were living with their mother and sister. The testimony does not seem to evidence any materiality, especially in the manner in which it was offered. It is also to be noted that the jury actually heard the testimony, but upon objection being made the court sustained the objection; however same was not excluded from the jury’s consideration by the court, and no request made relative to its exclusion. We see no error reflected herein.
Bill of exceptions No. 4 relates to the trial court excluding from the consideration of the jury certain reasons why the appellant did not go back to the home of his former wife for the last few days preceding the night of the shooting. The witness had been permitted to give the substance of a conversation claimed to have been had with the deceased a short time prior to the fatal difficulty in which he contended that the deceased had told appellant not to come over to his former wife’s home; that he had also testified that he had not gone back over there prior to the night of the killing, and then when asked why the witness did not go over to such home the State objected to an answer thereto because the answer would be but a conclusion and an opinion of the witness and self-serving. We are not impressed with the materiality of this matter. We think the trial court was correct in sustaining the objection.
Bill of exceptions No. 5 is based upon the fact that while appellant was on the witness stand, upon cross-examination, he was asked if he did not have a conversation with his former
wife, after she had started going with the deceased, in which he stated to her that he, appellant, was glad she was going with Mr. Smith, and that he was a good Christian character. This statement the appellant denied having made. Thereafter-wards the State placed Mrs. Ethel Mangum on the stand, and, over appellant’s objection, she was allowed to testify that she did have such a conversation with appellant, and that he did make such a statement relative to the character of Mr. Smith, and to their association together. We are at a loss to see where there could have been any injury to the appellant by reason of this complained of error. If it was the State’s theory that this killing had occurred on account of jealousy upon the part of the appellant toward the deceased because the deceased was keeping company with Mrs. Mangum, then such testimony would have some tendency to refute this theory of jealousy upon appellant’s part, and the proof of the statement purportedly made to Mrs. Mangum would not only not injure appellant but would have been helpful to him; it would have seemed to have evidenced a lack of jealousy. If offered by appellant, such a statement might have been deemed self-serving; when offered by the State, we do not think its tendency could have been to injure him. We are also not impressed with the fact that such a statement is a collateral matter. It occurs to us that any statement relative to the deceased, made by the appellant, would bear directly upon the issue herein.
Bill of exceptions No.
Free access — add to your briefcase to read the full text and ask questions with AI
GRAVES, Judge.
The appellant was convicted of murder with malice, as evidenced by the killing of L. M. Smith, and was assessed a penalty of twenty years therefor.
It appears that appellant, a minister, and also a carpenter by trade, had been divorced from his wife; and their children, one married girl and two young boys, were living with the wife. Mr. Smith had been coming to the divorced wife’s home,
after the divorce, and had at times taken her and her children to church. On the night of the fatal difficulty Mr. Smith and the boys, the daughter and her husband, and appellant’s former wife, had been to church, and upon their return to the home they found appellant in or near the driveway thereof. Appellant told his boys to bring him certain of his carpenter tools from the premises, and they proceeded to do so. In the meantime Mr. Smith had gotten out of the automobile, as had Mrs. Mangum also, at which time it appears from the testimony that appellant produced a pistol in his possession and Mr. Smith was shot twice therewith. The deceased seemed to have gotten the pistol away from appellant and gave it to one of the little boys, who laid it down in the driveway, and Mr. Smith went to and sat down on the gallery of the home, evidently in great pain, at which time appellant made an attack upon his former wife, and had her down on the ground beating her when the son-in-law struck appellant over the head with a brick, and with the help of others held appellant until the arrival of the officers. Mr. Smith’s wounds were serious, and from them he eventually died, hence the murder charge.
Appellant’s bill of exceptions No. 1 is voluminous, and occupies many pages of the record. The gist thereof, however, is a complaint that a prejudiced juror had gotten on the jury by reason of certain misstatements attributed to such juror on his voir dire examination, and that appellant, through no fault of his own, nor lack of diligence upon his part, had not had his case presented to a fair and impartial jury, it being claimed that this juror was prejudiced against the appellant, and had made statements to others prior to being accepted on the jury, evidencing such prejudice against appellant. We find the matter presented from both sides to the trial court by witnesses and affidavits upon the hearing of the motion for a new trial, and the facts relative to the mentioned juror and his statements were gone into fully before that court, who decided the matter, upon contradictory testimony, against the appellant’s contention, and we find ourselves of the same opinion as that of the trial court. It was his judgment that the juror was fair and impartial, after going fully into the matter, and we do not feel called upon to disturb his ruling thereon.
Bill of exceptions No. 2 is concerned with a series of questions propounded to the witness Denver Seale, an investigator for the district attorney’s office, who testified relative to a dying statement made to him by Mr. Smith. It appears that Mr. Seale had a conversation with the deceased relative to the
occurrence in which the deceased had received the wounds from which he later died, and that Mr. Seale then wrote his version of what the deceased said relative thereto, and brought the written instrument to the deceased, read it over to him in the presence of a witness, and the deceased signed the same. The questions asked Mr. Seale were, in substance: “Why didn’t a lawyer from the district attorney’s office go out to take this statement? * * * Were there any stenographers connected with the district attorney’s office to whom the witness had access, * * * and why didn’t the witness take a stenographer out there to take down verbatim this dying statement?” Objection was made to the answering of these questions, and same was by the trial court sustained. We think the trial court’s ruling thereon was correct.
Bill of exceptions No. 3 relates to the trial court’s ruling wherein he sustained an objection to the appellant being allowed to testify that “his boys had asked him to come back,” evidently meaning that they had asked him to return to their home where they were living with their mother and sister. The testimony does not seem to evidence any materiality, especially in the manner in which it was offered. It is also to be noted that the jury actually heard the testimony, but upon objection being made the court sustained the objection; however same was not excluded from the jury’s consideration by the court, and no request made relative to its exclusion. We see no error reflected herein.
Bill of exceptions No. 4 relates to the trial court excluding from the consideration of the jury certain reasons why the appellant did not go back to the home of his former wife for the last few days preceding the night of the shooting. The witness had been permitted to give the substance of a conversation claimed to have been had with the deceased a short time prior to the fatal difficulty in which he contended that the deceased had told appellant not to come over to his former wife’s home; that he had also testified that he had not gone back over there prior to the night of the killing, and then when asked why the witness did not go over to such home the State objected to an answer thereto because the answer would be but a conclusion and an opinion of the witness and self-serving. We are not impressed with the materiality of this matter. We think the trial court was correct in sustaining the objection.
Bill of exceptions No. 5 is based upon the fact that while appellant was on the witness stand, upon cross-examination, he was asked if he did not have a conversation with his former
wife, after she had started going with the deceased, in which he stated to her that he, appellant, was glad she was going with Mr. Smith, and that he was a good Christian character. This statement the appellant denied having made. Thereafter-wards the State placed Mrs. Ethel Mangum on the stand, and, over appellant’s objection, she was allowed to testify that she did have such a conversation with appellant, and that he did make such a statement relative to the character of Mr. Smith, and to their association together. We are at a loss to see where there could have been any injury to the appellant by reason of this complained of error. If it was the State’s theory that this killing had occurred on account of jealousy upon the part of the appellant toward the deceased because the deceased was keeping company with Mrs. Mangum, then such testimony would have some tendency to refute this theory of jealousy upon appellant’s part, and the proof of the statement purportedly made to Mrs. Mangum would not only not injure appellant but would have been helpful to him; it would have seemed to have evidenced a lack of jealousy. If offered by appellant, such a statement might have been deemed self-serving; when offered by the State, we do not think its tendency could have been to injure him. We are also not impressed with the fact that such a statement is a collateral matter. It occurs to us that any statement relative to the deceased, made by the appellant, would bear directly upon the issue herein.
Bill of exceptions No. 6 complains of certain arguments before the jury in which the State’s attorney referred to the appellant as a “guilty murderer under the evidence in this case.” This bill also contains a further exception to other remarks of the same State’s attorney which were objected to, and which objection was sustained and the jury was instructed to disregard the latter remarks, although exception was reserved to the making of the last remark. It is therefore necessary to treat each set of remarks separately, and this bill as presented becomes multifarious. Regardless thereof, however, we think the matter free from doubt, and we will consider the same. In the remarks just above cited, we find the State’s attorney drawing his deductions from the admitted testimony, with no request from appellant’s attorney for an instruction to the jury to disregard the statement complained of. Mr. Branch’s Penal Code, p. 204, Sec. 362, lays down the doctrine that: “Unless the remarks of .State’s counsel are obviously of a nature to impair the rights of defendant or to improperly prejudice his case before the jury, such remarks, though im
proper, will not be considered for reversal unless a charge instructing the jury to disregard them was asked and refused and an exception reserved,” citing a long list of cases.
To the second series of remarks an instruction was given by the court directing the jury to disregard such remarks, although exception was reserved to the making of such remarks. Under the same Sec. 362, supra, it is said: “If improper remarks of counsel are by the court withdrawn and the jury instructed not to consider them, ordinarily the injury, if any, has been cured,” citing cases.
We do not think any of these remarks were so obviously injurious and prejudicial, or of such a grave character, as to evidence any injury to appellant’s defense. This bill is overruled.
Bill of exceptions No. 7 has as its basis the introduction of a statement made by the deceased, offered as a dying declaration. It appears from the court’s qualification thereto that upon objection of the appellant’s attorneys much of this statement was by the trial court deleted, and practically the only objection left that the court did not sustain was that a portion of such statement was a Shorthand rendition of the facts. We are impressed with the same idea as was contained in appellant’s objection, and are of the opinion that the portion of such statement as was allowed to go before the jury was but a shorthand rendition of the facts that surrounded the killing, and we think, after laying a proper predicate for this statement, the State was well within its rights when it introduced the statement of Mr. Smith as to what took place at the time and scene where he lost his life.
Bill of exceptions No. 8 complains because of the trial court’s failure to give in charge to the jury appellant’s requested charge No. 10 relative to the law of threats as applied to self-defense. From a perusal of the trial court’s main charge we find that a correct charge on such threats, was embodied therein in language heretofore approved by this court.
The remarks relative to bill No. 8, just above, are also applicable to bill of exceptions No. 9, which latter bill contains a request for the court to charge that an assault and battery which causes pain and bloodshed would be in law termed “adequate cause.” We think this matter was properly covered by the court’s main charge. To the same effect as the above is appellant’s bill No. 10, and we overrule the same.
Bill of exceptions No. 11 is a complaint relative to the
State’s attorney’s argument before the jury in which he stated, in substance, that the pistol which had been identified as the weapon with which Mr. Smith had been shot, had a hard trigger pull. It seems that the State’s attorney had such pistol in his hand while arguing before the jury relative to appellant’s testimony, and was demonstrating with it when he made such statement relative to the trigger pull thereof. It is to be noted that the court sustained an objection to the statement made by the State’s attorney, and no request was made by appellant’s attorney to have the jury instructed to disregard such remark. We overrule this bill.
Bill of exceptions No. 12 complains of the fact that after the appellant had offered testimony relative to his good reputation for truth and veracity, the State also offered testimony relative to the appellant’s reputation as a peaceable law-abiding citizen. This was done, so the court’s qualification says, on account of the fact that appellant had filed at the proper time a request for a suspended sentence. Art. 778, C. C. P. provides, among other things, that: “The court shall permit testimony as to the general reputation of defendant to enablé the jury to determine whether to recommend the suspension of the sentence * *
12 Tex. Jur., p. 749, says: “The reputation contemplated by the statute is the general reputation of the accused for being a peaceable and law-abiding citizen in the community in which he has lived,” citing Skelton v. State, 106 Texas Crim. Rep. 90, 291 S. W. Rep. 238; Freddy v. State, 89 Texas Crim. Rep. 53, 229 S. W. Rep. 533; Martoni v. State, 74 Texas Crim. Rep. 90, 167 S. W. Rep. 249; Campbell v. State, 73 Texas Crim. Rep. 198, 164 S. W. Rep. 850. We see no error reflected in such bill.
We think this cause has been properly tried, and it is accordingly affirmed.