HARPER, Judge.
The appellant was indicted charged with the offense of murder. Upon a trial she was convicted and sentenced to the penitentiary for life.
1. At the threshold we are confronted with a grave question—an application for change of venue in this case. This is a matter generally left to the sound discretion of the trial court, but in this instance, after a careful reading of the record, we have come to the conclusion that the application should have been granted. Without going into details in this matter, it is sufficient to say that the newspaper reports in the record show that there was a deep interest taken in this case, and that when the habeas corpus hearing was held the District Court was crowded, and the attendance continued from day to day, the paper saying: “Jammed to the very doors, with every seat on the lower floors and in the balconies occupied, besides the many who stood up both downstairs and upstairs.” That at the conclusion of this hearing the trial judge expressed his opinion that “defendant had shot the deceased while he was* asleep in bed” and he refused bail. That the evidence in the case and the opinion of the trial judge were published in newspapers having a general circulation over the entire county. That upon a second habeas corpus hearing, again much interest was manifested, and when the judge hearing the cause granted the defendant bail, a number of the citizens of McGregor hanged and burned him in effigy, and this fact was published broadcast over the county. Without commenting on this further than to say that the record discloses that men who engaged in this proceeding, were men of standing in their town and county, it shows to what extent passion and prejudice were swaying the minds of those people. It further appears that when a reputable attorney was appointed administrator of the estate, because he was* one of the attorneys of the defendant, a special train was chartered for the citizens to go en masse to the county judge to protest, and he stepped aside and let another be ajSpointed to avoid this scene. The printing office was broken into and a paper issued against the will .of the administrator in charge. Witnesses from many portions of the county testify that they do not believe the defendant could get a
fair and' impartial" trial. Many testify they believed she could. Some testify they had an opinion in the case themselves, but they thought she could get a fair and impartial trial. Every witness who testified, either for the State or defendant, said they had heard the case discussed more or less, and a great many stated that they had read the evidence and had read the opinion of the judge expressed at the habeas corpus trial. Hot a single witness testified that he knew .nothing of .the case, and a great majority had formed an opinion. As said by this court in the case of Steagald v. State,
22
Texas Crim. App., 496:
“Among English speaking peoples 'the right of trial by jury’ has always been considered, and Sir William Blaclcstone justly denominates it 'the palladium of civil rights.’ Our Constitution requires that it 'shall remain inviolate.’ As an essential factor in the protection of the life and liberty of the citizen, it is considered so important that our laws declare that 'the defendant to a criminal prosecution for any offense may waive any right secured to him by law except the right of trial by jury in a felony case.’ But he is not only entitled to a trial by jury, but our Constitution characterizes the kind of jury which is to try him, and says: 'The accused shall have a speedy, public trial by an impartial jury.’ Hot only so, but it is also the will and policy of the law that the 'trial shall be alike fair and impartial to the accused and the State.’ An impartial jury and a fair trial is what the State demands, and in her demands she is no respecter of persons. She has one law for all—the high and the low, the rich and the poor, the friendless—the most debased and hardened of criminals. The greater and more horrible the crime charged the greater and more imperative the necessity that these safeguards— these landmarks of the law—should be constantly looked to and kept steadily in view, lest, perchance, they should be forgotten, denied or ignored in those natural promptings of a manly—it may be—and certainly a human instinct, which, standing appalled and outraged at the very contemplation of such heinous iniquity, condemned the" suspected criminal in advance, and mainly, perhaps, through the magnitude of his imputed crime. In such cases, when the popular mind is inflamed and popular indignation is ready and clamorous to become the executioner of its own vengeance, it is the part of an honest, fearless, manly judiciary to uphold the standard of the law, and to vindicate its majesty and integrity regardless of all consequences.”
This appellant may be guilty of one of the most diabolical offenses known in the annals of crime. It may be the citizenship were justly wrought up to the high tension this record discloses, and she deserved the punishment accorded to her in this case, but our courts are organized that every person may have a fair and impartial trial by an impartial jury, uninfluenced by any other consideration than the evidence adduced on the trial. Many people have a wrong conception of an application for a change of venue, construing it as a
reflection npon the citizenship of a county. This is not a correct view, because juries are selected under the rules of law, and while possibly, and doubtless it is true, that among the citizens of McLennan County, twelve men, yea, possibly hundreds of men, could be found who would give to this defendant a fair and impartial trial—that is not the question. The question to be decided is, do we know as near as mortals may, when we take into consideration the mode and method provided by law for the selection of juries that a jury will be obtained, that will not be influenced by the passions of the hour, by public sentiment, who have not prejudged the case in their own minds, or any consideration other than the evidence in the case, and inasmuch as this case must be reversed, upon other grounds any way, we have decided that a change of venue should be granted, and the judge of the district is ordered to make an entry changing the venue in this case in accordance with the provisions of the statute. The mind of human kind is such that it more readily gives credence to testimony in consonance with preconceived notions or ideas, than to receive testimony of a different character. The State can not be hurt, for all it desires is a jury of twelve men who will receive their first impressions from the evidence adduced on the trial. See Coffman v. State, this day decided.
2. It appears in this case that Mrs. Pattie W. Neff was indicted as an accomplice in this homicide. Defendant filed a motion as provided for by article 707 of the Code of Criminal Procedure, that Mrs. Neff be first placed on trial. When this application was presented, the State’s counsel suggested to the court grounds on which to quash the indictment against Mrs. Neff, and the court entered an order quashing the indictment. The defendant insisted that the motion to quash the indictment was insufficient, and demanded a verdict of not guilty on a trial. In all this she was joined by Mrs. Neff. The defendant insists that in this there was error, because the State did not agree that it would not prosecute Mrs. Neff for this offense, and the affidavit of Mrs. Neff is attached showing that she declined and refused to testify inasmuch as she had been indicted for complicity in this offense and her testimony might be used as evidence against her in case she was again indicted. Article 709 of the Code of Criminal Procedure provides that the attorney representing the State may at any time dismiss a prosecution as to one or more defendants, and the persons so discharged may be introduced as a witness by either party. Mrs. Neff, when the indictment was quashed, stood as though she had never been indicted, and was a qualified witness for the State or defendant. It is true, if the State desired to
compel
her to testify, over her objection, it would have been incumbent upon the State to agree not to prosecute her. But the State did not seek her testimony, and when the State placed her in position where she was qualified as a witness, it had done all that was required. If Mrs. Neff was conscious of her innocence, she need have no fear. Any witness for a
defendant whether he had ever been indicted or not, could make this demand, if Mrs. Neff could do so ívhen she stood freed from an indictment. When the State placed Mrs. Neff in position so she could testify under the law, it had met the requirements of our Code.
2y2.
We do not think the court erred in refusing to quash the indictment against this defendant on the grounds set out in the motion. While the facts disclose that the juryman challenged had intense opinions in this matter, yet the evidence does not disclose that he was a prosecutor in the sense that word is used in the Code. In addition, the challenge was withdrawn at the time the grand jury was empaneled and not renewed until after the indictment had been returned into court.
3. Owing to the disposition of this case it becomes unnecessary to pass on the application for a continuance and the action of the court thereon. One thing we will say, however, that if a defendant is really sick he should not be forced into trial. In matters of law, judges and judicial officers can pass on' legal questions, but if an affidavit is filed, and a showing made that a person is too unwell to confer with counsel and too sick to stand trial, without lying down on a cot all the time, medical advice should be obtained, and if such person is feigning, of course, it presents no ground; but if on the other hand competent medical men should, after examination, pronounce the person in such condition of health as to render him unfit to stand the strain of a trial, the case should be postponed or continued. In this case it is stated she did lie on a cot all through the trial. If she was playing sick, the injury she perhaps suffered was just. But if, on the other hand, she was real-ly too ill to sit, the fact the court forced her into trial in this condition was an indication to the jury that in the mind of the judge she had committed such crime that she deserved no consideration.
4. While it would not be such error as to require the reversal of a case, in the absence of injury shown, for the court on motion to refuse to exclude the veniremen from the courtroom during the selection of a jury, yet where an application is made, claiming that the examination which should be made would prejudice her defense and rights, it should be granted, and in an extreme case we would feel called on to reverse a case if it was shown that application had been made, and by the refusal of the court to do so the defendant was prevented from asking proper questions for fear of prejudicing the jury, or in asking them might create a prejudice in the minds of the veniremen by reason of such examination, or that such a number would and did disqualify by reason of having a previously formed opinion as might prejudice defendant’s rights.
5. The record in this case is very voluminous, the motion for a new trial containing one hundred and fourteen grounds, and takes up eighty-five typewritten pages of the transcript. To discuss each as
signment in detail would be of but little benefit. However, we will take notice of all that we think may affect another trial in this case.
On the night of the 18th day of last June defendant shot and killed her husband. He was undressed and in bed at the time he was found, and physicians called testify that they examined the deceased, probed the wound, and located as they thought the course of the bullet. Defendant testified to unfriendly relations between her and her husband, and that he had frequently threatened her life, and she was afraid of him. Ho one was present other than defendant and her husband at the time of the shooting. She testified that he had been quarreling and accused her of infidelity; that she got up out of the hed and made down a pallet, when deceased, being very angry, said he would put an end to it, and reached under his pillow for a razor he had under the pillow. As he did so, she fired and ran out in the street. Those first "meeting her said she was nervous and greatly excited. Two witnesses who were out in the street say they heard deceased making a noise like he was turning about, while one witness said she heard the bed springs “screak” as he turned over. The" doctors testify that a man shot in that part of the head where deceased was shot, the bullet ranging as they judged this one did, “no voluntary movement would occur, as there would be no volition, and would produce instant paralysis of the entire physical system.” The theory of the State was- that deceased was 'asleep when he was shot, and never moved after the fatal injury was inflicted. We do not think the court erred in admitting the testimony of the physicians. They were practicing physicians, and under the laws we now have, before a man can get license to practice medicine, he must demonstrate that he has a knowledge of the matters testified to by the witness in this case.
6. Appellant also objected to the witness Hall being permitted to testify that on the day of the homicide defendant was inquiring about the life insurance policies of deceased. As qualified by the court, that it was shown that the policies on life of deceased were in part payable to defendant, this bill presents no error.
7. Appellant complains that while her witness, Mrs. Tom Evans, was on the stand, on cross-examination, she was asked if she did not tell Miss Belle Hale, who had come to inquire about the killing, “it was no use for her to ask Mrs. Straight about this because she had already told three or four different tales about it,” and when the witness denied making such statement, Miss Belle Hale was permitted to testify that the witness did make such statement to her. This would be an opinion of the witness, and under the holding in the case of Drake v. State, 29 Texas Crim. App., 265, and authorities cited, this was error.
8. Appellant in a proper bill shows that, while the defendant’s witness, Tom Evans, was on the stand, on cross-examination, State’s counsel asked him "if deceased was not lying in a perfect position of
rest.” The court sustained the defendant’s objection, when it is shown that State’s counsel, in the presence and hearing of the jury “stated that said witness had so testified on a former hearing.” This was improper. Objections to testimony would be of no avail if presenting officers are permitted to state that the witness had so testified, getting the testimony as effectively before the jury as if the witness had been permitted to testify.
9. Appellant also complains that while the witness Evans was on the stand he was asked if he did not tell Mr. Burge “that Mrs. Streight (defendant) had told him that deceased was after her, running her around the room with a razor, and that she got a pistol and shot him,” and upon the witness denying it, in rebuttal the State placed Mr. Burge on the stand, who testified that Mr. Evans did tell, him that defendant had made that statement to him. Under the rule laid down in the Drake case, supra (page 272), this was admissible. This also applies to the testimony of S. C. Walker in bill No. 47, as to what Mrs. Evans claimed defendant told her.
10. We agree with appellant that the testimony was admissible to the rejection of which complaint was made in her thirty-fifth bill of exceptions. Where the testimony of a defendant as a witness is attacked, by severe and insinuative cross-examination, by proof of previous contradictory statements, by failure to make complaint when the State’s cross-examination claims it was called for, such defendant may be aided by supporting testimony. Ross v. State, 60 Texas Crim. Rep., 547, 132 S. W. Rep., 793; Cabrera v. State, 56 Texas Crim. Rep., 141. When the State had her to testify that she had not told her neighbors of the deceased’s improper conduct as testified to by her, it was permissible to prove that she had told a cousin with whom she was raised, a lawyer, and acted on his advice in remaining with her husband.
11. The State contended that when the pistol was fired it had burned the eyebrows of deceased. The appellant complains that “while defendant’s witness, W. A. Holt, was on the stand and he had testified that he was in the ammunition business, handling firearms and sporting goods, and had been for sixteen years; that he was much accustomed to the use of firearms of all. character; that he had had much experience with them and observation of them; that he had made some experiments as to the effect of pistol shots in regard to a powder burn, using a 38-calibre Colt’s pistol, the kind found by deceased after he was shot, and the same character of shells as had been taken from the pistol of the defendant; that he made twenty-five shots at ranges from one inch to four feet; that he had targets prepared with human hair placed in the position and to represent human eyebrows; that he used a piece of wood covered with pieces of leather with eyebrows fastened on them for dummies and laid them on two pillows (it having been shown that the deceased was lying on two white feather pillows when he was first reached immediately
after he was shot); witness had the target and paraphernalia in court with him and exhibited the same in connection with his testimony, showing how the tests had been made. Defendant then proposed to prove by said witness that with the bullet hole being one inch above the nasal eminence, as was shown by testimony to have been the fact in this case, it would be impossible at any range for the powder to burn the eyebrow off, and the following occurred: “By Mr. Williams, for defendant: Mr. Holt, from the experiments you have made, and your knowledge of firearms, and the tests you have made to show what can and what can not be done with reference to an eyebrow being burned off with a pistol shot- By Mr. Cross: We object. By Mr. Williams: With a 38-Colt’s pistol at any range- By the Court: The objection is sustained. By Mr. Williams: We except to the ruling of the court. By the Court: That is what I expected you to do. By Mr. Williams: We except to the remarks of the court. We except to the ruling of the court, because we think the witness is qualified as an expert. He made the tests -under the same circumstances as the facts in this case, and we think he is in a position to testify upon the subject.”
The court doubtless in rejecting the testimony thought it would be of but little weight, yet as it was shown in making the tests human hair was used, a pistol of the same size and cartridge of the same make and the testimony should have been admitted. The defendant states her contention was that these eyebrows had been burned after the shooting by some person unknown to her, and that a pistol would not burn the eyebrows when fired, regardless of the range, and it would have been proper to admit such testimony as she had on this point, without reference to its weight. Mr. Underhill, in his work on Evidence, lays down the rule: “Sec. 233. If the conditions and circumstances existing or alleged to exist in the case, and surrounding the subject matter, are reproduced for the experiment, a witness who is an expert may accompany his statement of opinion with a statement of the result of an experiment.” Under the circumstances, the remark of the judge was hardly proper. Harrell v. State, 39 Texas Crim. Rep., 204; Kirk v. State, 35 Texas Crim. Rep., 224.
12. The court did not err in the matter complained of in bill No. 39. A witness for the defendant had testified 'she heard the bed springs screak. The State’s witness testified that the springs came from his place; they were guaranteed springs, and that he was on the bed on which deceased died that night and the springs did not screak.
13. Appellant complains that testimony was admitted that the reputation of deceased was that of a peaceable, law-abiding citizen. As qualified by the court, we do not think there was any error in admitting this testimony. The court says: “That the defense had introduced a great number of witnesses to prove that the deceased made threats to murder his wife through a long number of years, not only to murder her, but to murder his children, and. that he went
into a rage nearly every day, generally at the breakfast table, and cursed and abused his wife and threatened to kill her on divers and sundry occasions, and that she had testified that he had drawn a sixshooter on her on several occasions, and threatened to cut her throat on a number of occasions. That under the statute, which provides that when the defendant begins to prove threats, then the State can prove the general reputation of the deceased for being of a peaceable and inoffensive disposition, this testimony was admitted.” But it was hardly permissible, as complained of in the next bill, for the witnesses to be permitted to testify that they had never heard deceased curse his wife or any other member of his family. These witnesses knew deceased as one business man knows another, and it could hardly be expected that they would know what took place in the privacy of their home, when they testify they had never been in his home.
14. For the purpose of showing the state of feeling, bias and prejudice of certain witnesses in this case, the defendant desired to prove that when the presiding judge of this court had admitted her to bail, that they were a portion of the crowd and took part in hanging Judge Davidson in effigy. Also that defendant selected Lud Williams, her attorney, as administrator of the estate of deceased, and the Probate Court appointed him, and they forcibly took charge of the printing office; it further appearing in the record that some number of citizens were coming from McGregor to Waco to protest to the county judge against the appointment. When men like those permitted their anger to get the better of their judgment, as shown in these bills, the defendant should have been permitted to show they were biased and had ill will towards her, and these facts would tend to show it.
15. In regard to admitting the testimony of J. D. Cotton, who was only nine years old, this is a matter lodged in the sound discretion of the trial court, and we would not feel inclined to disturb his ruling in a matter of this character, especially as the bill shows no injury to defendant.
16. We do not think the objections well taken to the testimony of Miss Sallie Ritchie and S. C. Walker as to what was said over the telephone. Miss Ritchie was the operator, made the connection, and said she recognized the voices of defendant and Mrs. Neff, and what was said would be admissible as a circumstance in the case, considering the State’s theory.
17. It could not be admissible' as to what Miss Belle Neff’s ipdividual opinion was in this case, and it was error to permit Mrs. Walker to testify that Miss Belle Neff “stated to her the night of the killing that she did not see how Mrs. Streight could have done that, that Mr. Streight had always been good to her.” Miss Neff was not upon trial in this case, and what statement she might have" made as to her . opinion in the matter in the absence of defendant would not be admissible.
18. It appears from bills of exception Bos. 50 and 59 that when Mrs. Bayborn, a witness for the defendant, was testifying, that the State was permitted to ask her if she did not tell A. S. Davis “that deceased was one of the highest-minded men she ever knew.” The witness denied making this statement, but began to tell what she did say when she was compelled to answer yes or no. The State was then permitted to prove by Mr. Davis that she had so said to him. Defendant then placed Mrs. Bayborn on the stand, who would have testified, if permitted, that what she said was “anyone who read the editorials written by deceased would think he was one of the highest-minded men they ever knew,” but the court declined to permit her to do so. We do not see upon what ground the witness, in the first place, was not permitted to tell what she did say, and if- not, then it was certainly permissible, if it. was sought to impeach her, to permit her to tell exactly what she had said in regard to the matter.
19. One of the most serious questions in the case is presented in bills of exception Bos. 54, 55 and 56, all of which relate to three letters, the proof of which was sufficient to admit them in testimony if they were admissible for any purpose. The letter shown by bill of exceptions No. 54 was written in July, 1909, to a Mr. Johnson, about his brother, who was lying at the point of death. Deceased is not shown ever to have seen that letter. The one shown by bill No. 55 shows on its face to have been written deceased by defendant December 29, 1903, and expresses for him undying affection, and begging him to return to his family, and showing at that time a separation. The one shown by bill No. 56 was written to Bobert Wood, and if written by defendant was damaging to her theory. She denied writing these two last mentioned letters. These last two letters were in deceased’s possession at the time of his death, and had been for a number of years, defendant testifying that she saw them in deceased’s possession shortly after they were dated in 1903. Defendant denies writing the letter to Bobert Wood, and if she wrote it, it would show that at that period she was untrue to her husband and was guilty of adultery with Wood. At this time she and deceased were living apart, temporarily at least; and, if she wrote the letter to deceased, dated December 29, 1903, she expressed contrition for her misdeeds, and begged him to forgive her and speaks of deceased in the most endearing terms. Shortly thereafter they were reunited and lived as husband and wife until the homicide in 1910. If deceased had the Wood letter, defendant had convinced him she was- not the author of it, or by living her for six or seven years thereafter it is claimed he had condoned the offeúse.
As the letter addressed to Bobert Wood is the one most damaging in its nature, we will pass on its admissibility first. It was remote in'time, and to be admissible in evidence it must shed some light on the cause of the homicide from the standpoint of the State or defendant, or must tend to show the motive of the defendant in the com
mission of the offense, or tend to establish the degree of homicide, if it was not justifiable as claimed by defendant.
The defendant testified in the case, and on direct examination, among other things, she says:
“On Sunday morning, before the homicide, we went to Sunday-School. I stayed for church, and my husband did not. When I went home from church I found him in an upset state of mind, but I had company, and he did not say anything as to what was worrying him. My company left in the afternoon, but still he did not say anything as to what was worrying him, until Monday morning. Early, about daylight, I expect, he turned over to me, and said: 'Do you know a Mr. Farwell?’ and I was asleep, and it awakened me; and I said, 'What did you say?’ He repeated the question. I said, “Yes, I know a Mr. Ed Farwell. I met him on the train between Dallas and Waco. He is a traveling man. It was in October, during the fair.’ He turned over and took hold of my throat with both of his hands, his body over mine. He said, 'You are a God-damned, lying slut, and I will kill you,’ and he kept abusing me, and I said, “Don’t you remember I told you about meeting Mr. Farwell, and he told me about his sister-in-law having run over a little child with an automobile, and what a demented condition she was in afterwards.’ He said he did not, and kept up his abuses and cursing, until he turned over again, and said, ‘I will kill you for this,’ or something like that. I got up and went upstairs, and went to bed in my little girl’s bed, and stayed until time to get breakfast. I came down, and he renewed the quarrel while I was dressing. My little boy was upstairs, and heard him, and said, 'Papa, I wish you would cut that out,’ and I went on and got breakfast. After breakfast was over my little boy said, 'Mama, what was the matter with papa? What was that he said?’ His father had gone at that time.
“From then on, that week, he kept this fussing up all the week, cursing and abusing me about that one little matter, and I said to him, 'Why do you say I am a liar?’ He said, 'Because he did not give you his card. He wrote his name on your card.’ He had found a card with this man’s name in an old card case of mine somewhere, on Sunday before I came from church, and he kept that matter up all during the week, accusing me of having lied, and abusing me. I was in a very nervous condition.
“On Friday I had company again for dinner. It was Mr. Pat Heff’s mother. He was very pleasant at dinner, but after dinner, when he started off, he did not say good-bye, and I followed him to the hall, and said, 'Aren’t you going to kiss me good-bye?’ He said, 'Ho, let your lover kiss you good-bye.’ I said, 'I haven’t any lover. What do you mean?’ He said, 'That is all right,’ and walked out. In the evening he came home early. I still had company, and he did not say anything, hut that night he told me that he had found a letter that
he supposed was written to me. He just said, When did you get this letter ?’ and produced that letter, and read it, and I recognized it immediately. I said, ‘This is a letter that Tom O’Brien wrote to Nettie Randall two years ago, when she was staying here.’ Well, he did not believe that, and .cursed me about that, and said he was going to kill me about that and the other affair. He kept that fussing up during the night until away late in the night. I did not go’ to sleep. I had not slept scarcely any all the week, and he did not go to sleep until late in the night. He said he meant to kill me. He said he knew who the letter was from. He meant to kill me and he meant to kill the man; he did not believe the letter was from Tom O’Brien and never would, and kept on with his threats.” The witness told about hiding the pistol, and says the next morning he renewed the threats, and remarked, “I have a pistol besides that one which was under my pillow.” The night he was killed the witness says Mrs. Neff was at her home and deceased came in and began sharpening his razor, and after some conversation told Mrs. Neff he did not believe the story about Tom O’Brien writing the letter he found in the house. Mrs. Neff replied she was going home, as she did not want to witness a family row, when deceased replied, “You will witness something worse than that if you stay here.” She testified deceased afterwards placed the razor under the pillow of his bed. Again she says:
“We had been living in McGregor very nearly six years. Commencing with my life there in McGregor, the first few months—in fact, the first year—I worked in the office with him, and he became so disagreeable I quit working in the office. He was very disagreeable, and as the years went on he became more so. I worked in the office the first year. He got so disagreeable I could not work any longer, and because of my health. Part of the time I did not have any health, and it was too hard on me. His treatment of me and his family was cruel and violent. There were many times, at meal times, especially, that he was very violent. So much so that I was just crazed, and so were the children. I can think of several instances. There was one, I think it was in March of this year, he came home to supper one night. I had been expecting a long distance call from my cousin, Mr. McLean. He was in Cleburne, trying a case, and had told me he was coming back by to see me, and would call on me Saturday, perhaps. I left the house in the afternoon, and told the central girl that if I got a long distance call while I was not at the house to send the message up to my husband. He came home to supper, and asked me if I had gotten this long distance call. I said, ‘No, I went out shopping. Went to town this afternoon.’ He became angry, and said I was a liar. That I did not have to go to town; that I was always gone; never home attending to my business, and cursing and abusing me. He called me a God-damned lying slut. That was his special name for me. That was what he called me more
than anything else. That was a favorite expression of his when addressing me and his little girl. I say that I have heard him call Fredda, his daughter, that. I can not remember all those names that he called me that evening. He was in the habit of calling me every vile name he could think of. I hate to tell them. I hate to repeat the language that he used. He called me a bitch often. With reference to the last four or five years of my life, we had fusses at the breakfast table often. It was almost a daily occurrence. Those fusses would -go to the extent that he would threaten my life. He would call me these names that I speak of, or some of them. He would do that often. I won’t say he did that every breakfast meal, but it was almost a daily occurrence. He did that in the presence of my children. As to the other affair that I was telling about, we were at the supper table when he asked me if I had gotten this long distance call, and he abused me, as I said before, and my little boy rebuked him, and he said, ‘You get up and leave here. You are not wanted here.’ So he, the boy, got up and went to the picture show. The little girl was spending the night away from home, at Mrs. HefE’s. He kept up this abuse until I said, T am going to call an officer,’ and I started to the telephone, and he went through the bath-room, and got his pistol by the time I had gotten to the telephone, almost. He said, ‘If you attempt to call an officer I will kill you and the officer,’ and he stepped to the front door, to close the front door, with his pistol in his hand. . . .
“I can tell of another incident when he had drawn a pistol on me' there in McGregor. He had drawn it on me several times. I do not know that I can tell the exact circumstances, but it would just be in a violent fit of temper. I do not believe I can give a part of the details of any other circumstance right now, when he had drawn a pistol on me. He would get so mad on these occasions that he was beside himself. He was insane. He had the expression of a maniac on his face. I was afraid of him. I was very much afraid of him. I had fear with reference to my children. He had threatened to kill the entire family. I regarded there being serious danger of his doing that. There were many times when I thought he would. I regarded my life in danger. I had been regarding my life in danger for all these years, there at McGregor. I did not quit him because he had always threatened that he would kill me if I did. I believed it.”
She then says: “I had arrived at a conclusion with reference to how my end was going to be. I always felt that it would be a tragedy. I expected he would kill me. That was the way I expected to die. I had lived in that expectation ever since I had been down there. I had had that opinion for the last four or five years, especially.” She then testifies to many acts of cruelty, such as choking her, striking her, etc.
On cross-examination she testified that deceased abused her before he went to McGregor. He abused her while they lived at Morgan,
Albany, at Shawnee, and other points named, covering a period of twenty-one years, and while she was at Fort Worth she thought he was going to kill her there. She says, “He called me a damned slut. He called me a God-damn bitch. He has called me such names as chippie and whore.” She says: “I came back to Fort Worth to my sister once, when I lived in Shawnee. I went as a trial to myself and to him, not as a separation. We were, however, separated at that time. I thought.he would kill me at the time I separated from him. I went back to him because of some threats he made. He made some threats that if I did not go back and live with him again he would kill me. That was in Fort Worth. That was about seven or eight years ago.” . . . “He threatened me, and told me that unless I did live with him he would kill me. That is one reason that I went back to him. There are other reasons. As to the other reasons, I left Oklahoma, came to Fort Worth to live with my sister. I told him that I was not going to stay away if I found that I wanted to go back, or if I found that he would be better. He came to see me several times. We were there about six months. One of the times he came he had threatened me in different ways, especially with my life, and my sister begged me not to go back. I said that I had better. She said, ‘You have tried him before;’ but he came one day, with a letter, written supposedly by me. This was in Fort Worth. He came with a letter written supposedly by me. The letter was written to a man in Oklahoma. The man’s name was Wood. .1 did not write the letter. He wrote the letter. He said he did. My husband told me that he wrote the letter that he showed me. He said if I did not come back to live with him he would produce this letter and swear that I wrote it, and would take my children from me. That is what he told me. He was there at that time, in Fort Worth.” ...
“As to my coming back, there was no begging done. He made those threats. He had that letter and another letter purporting to have been written by me to him. (A letter was exhibited to the witness by the county attorney.) .This is one of the letters that he wrote and held over me as a threat that if I stayed away from him he would use it to take my children. He threatened to use that letter on me if I stayed away, because it was begging him to take me back.” . . .
“I never went to Mrs. Woods’ house in McGregor about the first part of February of this year, and told her that I had -written a letter to John Johnson, and that I wanted to get it in my possession, because there was going to be a tragedy in my life, and that it was the only thing out against me. I never made the remark to anyone. I did not ask Mrs. Woods if she had a letter written by me to John Johnson, who was then dead, among his effects. I never made the remark that I wanted that letter, because there was going to be a tragedy in my life, and that was the only thing out against me.” . . . “I felt that he was going to kill me, and that it,was just a question
of how long. I thought he would kill me some time. He cursed and abused me almost every day. He called me a damned slut, and damned whore, and damned bitches, and God-damned bitches, etc.” '. . . “I did not tell Henry Magill in Shawnee in 1903 that I was going to kill Mr. Streight. I did not tell him that if he ever accused me of' being untrue to him again I was - going to kill him, if I had to kill him while he was asleep.” . . . “I was going to leave town, if I could have gotten money enough. I was going to leave, if I could have gotten the money, but he would not give it to me. I wanted to leave Saturday night” (the night of the homicide). . . . “He told me a great number of times through the years gone by that he was going to kill me; for twenty-one years he had been telling me that at intervals.”
While we have copied rather copiously from her testimony, yet we present but a small part of it. We will merely say that if the jury believed her theory of the case and 'disbelieved the theory of the State, they could have found grounds to have decided she acted in self-defense, or if under one theory of it, guilty of any offense, not of murder in the first degree.
When she took the stand as a witness she was subject to a cross-examination like any other witness, and the State had the right to discredit her version in any proper manner. It is true, as the defendant says, in her direct examination they limited their examination to the six years of their life at McGregor, but under no rule we know of, if they went into the history of the family troubles for six years, that the State would be limited to this period in their cross-examination to this time, if there was a good reason for not so doing. By her testimony it is shown that the family troubles, if family troubles there were, were caused by the belief of deceased in her infidelity. If her testimony is true, he had cursed her because of this belief for a period of more than ten years. They were separated about the period this letter was written to Wood, and the cause of this separation was deceased’s opinion that she was untrue to him. She, from her testimony, would present a theory that she in no instance was at fault, but the State was not compelled to accept that theory. She shows that she desired to quit deceased, and says he threatened her life, and threatened to use this and another letter to take the children away from her, if she did do so. She says that once she desired to telephone for an officer and he threatened her life if she did do so, and she was in mortal dread. She says that the trouble came up the last time about a letter deceased had found, that he charged her with receiving, which, if true, showed her infidelity. In the record is the testimony of Henry Magill, who testifies: “Deceased and I were in business together in 1902 and 1903. I heard Mrs. Streight (defendant) in the office say that if Mr. Streight ever accused her of being untrue to him again she was going to kill him, if she had to do it at night while he was in bed.” Again, Mrs. Mollie Wood testifies: “Mrs.
Straight came to my house in the latter part of January or first of February this year (1910). She asked me if any of her letters were among the effects of Johnnie Johnson. He had died. I told her I did not know. She told me if I would go to Kopperl and see if there were and get them and bring them to her she would pay my way. She said, ‘There is going to be a tragedy in my life and that is all there is out against me and I want to get them in.’”
Hnder all the evidence in this case, and especially the evidence of defendant, we have arrived at the conclusion that the letters introduced tended to shed light on the homicide, the causes leading up to it, and if the defendant was guilty of any offense, of what degree of homicide she was guilty. The letters, perhaps, would not have been admissible, except in the light of her testimony, but when we view the case from the standpoint of what she says and the other facts and circumstances in evidence, the court did not err in admitting them in evidence.
20. The State in rebuttal, for the purposes of impeachment, introduced excerpts from the testimony of Tom Evans, Mrs. Tom Evans, Henry Evans, Miss Fredda Streight and of defendant, given at the .habeas corpus trial, and from affidavits made in the grand jury room and before the county attorney. When the State introduced these excerpts, the defendant then offered to introduce the other portions of such statements. It is the well settled rule in this State that when part of a statement is offered in evidence, all a witness says on that point is admissible. If the remaining portion would show that the statement was in substance the same as that made on the trial, it is proper to admit all that would so tend to show, and it is not proper to permit isolated questions and answers to be selected out and introduced, and then refuse to let the remainder be introduced. It is also well settled that when a witness is sought to be impeached by proving contradictory statements, then such witness can be supported by showing that she made the same statement, as she makes on the trial, in a former recital of the matter. These were the main witnesses for defendant, and this action of the court was very material error.
21. There are several objections in the record to the qction of the prosecuting officer in conducting the examination, and remarks made during the examination. This court has strongly condemned what are termed side-bar remarks heretofore, and counsel for_ both State and defendant should desist from such practice in the trial of cases. We felt called on recently, on account of the prosecuting officer repeatedly asking the same or similar questions after the court had ruled on the matter, to reverse a case, and counsel for the State should be careful to ask only such questions as they think are legitimate and will elicit legitimate testimony, and so conduct the examination as to give no just cause for complaint, and to make no sidebar remarks that might be construed as an attempt to testify.
22. There are a number of other assignments in the motion that
we do not deem necessary to refer to in view of the disposition of the case, but there is one matter that we feel we should caution the trial judges in regard to—the action of the court in disposing of the application for a writ of habeas corpus. It appears that on September 29, 1910, defendant filed her application for a writ of habeas corpus, and on October 3, 1910, the judge entered an order granting the writ, and set it down for a hearing on October 11. At the time this action was taken the main case had not been set for a day certain, but thereafter the court set the case of defendant on the same day he had set the hearing of the application for writ of habeas corpus. On the 11th day of October, the defendant appeared and asked that her application for a writ of habeas corpus be first heard, that she might be on bail, if entitled to it, during the trial of her case. This was refused by the court, and the court required the defendant to announce ready in the main cause without hearing the application for habeas corpus. Defendant reserved a bill of exceptions to the action of the court, moved to continue the case, because of this action of the court, among other things, and in a number of ways has brought this matter before us for review. The learned judge who presided in the matter gives his reasons in a qualification to the bill, saying:
“That defendant’s counsel, after the indictment had been returned, made application for writ of habeas corpus and the court set the hearing of said writ of habeas corpus for the same day that he set the case down for trial on its merits, the court knowing all of the facts at the time, having heretofore tried the defendant on habeas corpus, and heard all the testimony that was introduced in that trial, which testimony was practically the same as the testimony in the trial of the facts with the exception of the testimony of threats and abuse alleged to have been made towards the defendant on the part of the deceased, and refused her bail on said testimony; and also knowing from the previous habeas corpus trial that another habeas corpus trial would consume many days and possibly weeks in its trial; in fact, practically as much time as the trial of the case on its merits, and the court set both the writ and the trial on the merits down for the same day.”
How the judge before hearing the case on its merits could know in advance that the evidence would be practically the same as on the former hearing or habeas corpus is past our understanding. That the action of the trial court in this instance was virtually a denial of the writ of habeas corpus, none can gainsay. If the judge was so pressed with business as to be unable to hear same, he should have so endorsed on the writ and let the application be presented to another judge.
Article 1, section 12, of the Constitution, provides: “The writ of habeas corpus is a writ of right and shall never be suspended. The Legislature shall enact laws to render the remedy speedy and effectual.” The Legislature, in obedience to this command, in articles 150 to 214 of the Code of .Criminal Procedure, has hedged about this supposed
bulwark of human liberty with almost every statutory, demand calculated to its full enforcement and preservation to the citizens. Hot only has^ the Legislature attempted to obey this instruction in letter and spirit, but it has made it a petial offense in almost every conceivable instance where an attempt could be made or is made to evade its effect or deny its protection. To the courts alone is intrusted the solemn duty of assuring and securing to the citizen these reserved rights.
She stated in her application to the trial court, and she stood before that trial court and insisted that her case was bailable under the law and the facts, and stood ready to be heard thereon, and she was entitled to a hearing after the application had been granted.
Under articles 635 and 636 of the Code of Criminal Procedure, a defendant on bail is entitled to remain on bail during the trial, and it has been held, in a recent case by this court, that an improper denial to a defendant on bail of the right to remain on bail during trial, is a denial to him of a substantial right and is reversible error. Choice v. State, 52 Texas Crim. Rep., 285.
We have not seen a copy of the decision of the Appellate Court rendered in the case of Dr. Hyde, of Kansas City, charged with murder and sentenced to life imprisonment, but a report of the decision shows that the case was reversed because the defendant was improperly confined in jail during his trial.
In the case of the State v. Williams, 39 L. R. A., 821, it is said: “It was the ancient rule at common law that a prisoner brought into the presence of the court for trial upon a plea of not guilty to an indictment was entitled to appear free of all manner of shackles or bonds; and, prior to 1722, when a prisoner was arraigned or appeared at the bar of the court to plead, he was presented without manacles or bonds, unless there was evident danger of his escape. 2 Hale, P. C., 219; 4 Bl. Com., 322; Layer’s case, 16 How. St. Tr., 4th ed., by Hargrave, 230, 231, 244, 245; Waite’s case, 1 Leach, C. C., 33. In J. Kelyng’s Reports (pleas of the crown adjudged in the reign of Charles II.) : ‘It was resolved that when prisoners come to the bar to be tried, their irons ought to be taken off, in that they be not in any torture while they make their defense, be their crimes ever so great. And accordingly, upon the arraignment and trial of Hewler and others, who were brought in irons, the court commanded their irons to be taken off.’ The common law of England was expressly adopted by legislative enactment at the first session of the legislative assembly of this territory, and there is no doubt that the ancient right of one accused of crime under an indictment or information to appear in court unfettered is still preserved in all its original vigor in this State. In State v. Kring, 64 Mo., 591, the prisoner was convicted of murder in the first degree. The plea of insanity was before the court, and the defendant had some three months before assaulted a person in open court. He was brought into the trial court manacled, and remained some time in that condition. The Supreme
Court, in reversing the judgment of conviction, observed:
‘We
have no doubt of the power of the Criminal Court, at the commencement, or during the progress of a trial, to make such orders as may be necessary to secure a quiet and safe one, but the facts stated by the court in this case, as shown by the record, that the prisoner had assaulted a person in court about three months before the term at which he was tried, would hardly authorize the court to assume that on his trial for life he would be guilty of similar outrages. There must be some reason based on the conduct of the prisoner at the time of the trial, to authorize so important a right to be forfeited. When the court allows a prisoner to be brought before a jury with his hands chained in irons, and refuses, on his application or that of his counsel, to order their removal, the jury must necessarily conceive a prejudice against the accused, as being in the opinion of the judge a dangerous man, and one not to be trusted, even under the surveillance of officers. Besides, the condition of the prisoner in shackles may, to "some extent, deprive him of the free and calm use of all his faculties.’ Section
22,
article 1, of our Constitution, declares that ‘in criminal prosecutions the accused shall have the right to appear and defend in person.’ The right here declared is to appear with the use of not only his mental but his physical faculties unfettered, and unless some impelling necessity demands the restraint of a prisoner, to secure the safety of others and his own custody, the binding of the prisoner in irons is a plain violation of the constitutional guaranty. None appears in the record. 1 Bishop, Crim. Proc., sec. 955; Whart. Pl. & Pr., sec. 540; People v. Harrington, 42 Cal., 165, 10 Am. Rep., 296; State v. Smith, 11 Or., 205.”
In this case the defendant was not manacled, but she was carried backward and forward to the jail by officers of the law, placed on a cot in the courtroom during her trial, and kept under surveillance. No one can know what the effect of the court refusing to hear her application for bail had on the jury. No one knows what effect the officers carrying her back and forth to jail, the jury thus seeing that she was kept in custody, had. If the facts should show that defendánt was entitled to bail, the remedy referred to by the Constitution, as applied to this instance, means' and meant to this appellant that she might have her liberty under bail, especially during the trial, so that she would not be brought to and from the jail by officers in the presence of the jury with the odor of the jail about her, and the impression on the minds of the jurors that her case must indeed be grave that she was denied the right of bail, but held in strict custody; that she might have her liberty during trial that she might consult freely with her counsel; that she might come as a free person whose case has not yet been adjudged against her, and to sit facing the jury who were to pass upon her liberty and her life as a freeman. These were valuable rights to her if entitled to them under
the law, and the habeas corpus hearing should have been held, and if entitled to bail under the law, that right granted her.
[Rehearing denied May 24, 1911.—Reporter.]
Of course, the court should not permit continuances to be secured by merely filing an application on the day set for trial of a case, or so short a time before that day as to render it impossible to hear it before the day set for the trial. But in this case the application was made almost immediately after indictment found and before the main case was set for trial, and the court should not then have deliberately set the case for trial so as to 'prevent a hearing on the habeas corpus matter. Upon a proper showing the habeas corpus should always be heard, but it should never be permitted to be so used as to continue a case. Our Constitution and laws guarantee to every person charged with crime a fair trial before an impartial tribunal, and to the judges and courts our people look for the rights of each and every citizen to be preserved. Guilty though this defendant may be, which fact we know not nor judge not in this opinion, yet she is entitled in the trial of her case to every right guaranteed to her under the Constitution and laws of this State, and this is our duty and the duty of the court trying the case to see that she receives. The court having granted the writ of habeas corpus, will now grant a hearing on the writ.
For the errors pointed out, this judgment is reversed and the cause remanded with instructions to the District Court of McLennan County to change the venue of this cause under the law in accordance with the application filed.
Reversed and remanded.