Wilson v. State

90 S.W. 312, 49 Tex. Crim. 50, 1905 Tex. Crim. App. LEXIS 336

• Court: Court of Criminal Appeals of Texas
• Decided: December 6, 1905
• Docket: No. 3132.
• Status: Published

Opinions

Appellant was convicted of murder in the second degree, and his punishment fixed at seven years confinement in the penitentiary.

This is a companion case to that of H.C. Wilson v. State, decided at the Austin Term, 1905.

Appellant filed a motion to quash the indictment, because the charging part reads, "That H.C. Wilson and W.L. Wilson did then and there unlawfully with his malice aforethought kill." It is a well-known rule that bad spelling and ungrammatical construction will not vitiate an indictment. It clearly appears that both appellant and H.C. Wilson are charged with killing deceased with malice aforethought.

He also complains the court erred in permitting Nev Sorrells to testify, over the objection of appellant, that appellant and his brother (H.C. Wilson) were standing in front of W.C. Barnwell's drugstore in Gilmer, Upshur County, where the difficulty occurred. In this there was no error. The testimony of this witness shows that appellant and his brother were talking together just before the killing occurred. It may be that this was an innocent conversation, as appellant insists, but this would not preclude a converse inference by the jury, and hence it was a fact legitimately provable by the State. What has been said above also applies to the bill reserved to the testimony of C.W. Douphrate to the same effect.

The eighth error assigned complains that the court permitted Jim Starr, over appellant's objection, to testify that during the progress of the fight, he spoke to A.W. Harrell (deceased) in a loud voice, and said, "Bud, God damn it, run out of it." The bill presenting this matter shows that both appellant and his brother heard the statement. In this there was no error.

The ninth error complains that while J.H. Starr, a witness for the State, was being cross-examined by appellant, he was asked to state whether this defendant went to deceased, after he fell, and in response to said question, witness answered: "If he did, I did not see him." Thereupon appellant's counsel asked, if he could not answer the question positively. Witness reiterated, "I think it is positive enough; it looks to me like it is." The court thereupon remarked, "I think he has answered it as fully as he can. Things will happen that a witness ought to see, still sometimes they may not see it." Appellant excepted to the remark of the court. Thereupon the court stated, "He answered it in my opinion as honestly as a witness can answer." Appellant objected to said remarks on the ground that it prejudiced the rights of appellant. The court states in his explanation to this bill: "The witness had stated minutely all the surroundings; he had stated fifteen or twenty times, if defendant cut deceased after he fell, and while he was on the ground he did not see it. He had stated as often his opportunities to see it. Defendant was trying to force him to swear to a conclusion that it was impossible for defendant to have cut deceased while he was down without the witness seeing it. Witness had testified fairly, had shown no disposition to evade, and was willing to tell all he saw and heard. After harassing the witness for ten minutes on this point, I thought it was time to stop it, and proceed with the trial. Witness and the court had shown great patience in the cross-examination on this point before interfering to stop it, and proceed with the trial." The rules of procedure in this State require that trial courts should studiously avoid any comment upon the weight of the evidence, while ruling on the admission of testimony; or in charge to the jury. In view of the explanation of the court we cannot see there was such error as authorizes a reversal. After the witness answered the question, it is legitimate for the trial court to say so, and as indicated by the bill, stop any harassment of the witness. It is not proper for the court to say anything indicative of the fact that the court believed the witness is honest or dishonest. It is proper for trial court to protect a witness against any supposed imposition or badgering; but it is not proper to comment on the truth or falsity of the witness' testimony, or make a comment that can be legitimately or naturally construed as such.

The fifteenth error assigned, insists the court erred in permitting Dr. T.S. Ragland, to testify to what purported to be a dying declaration, alleged to have been made by A.W. Harrell, deceased, a short while before his death, because said statement was not shown to have been a part of the res gestæ, and did not come within the rule prescribed by law for the introduction of dying declarations. The bill shows that deceased had gone something like two hundred feet after the difficulty to Ferrell's drugstore, and within twenty minutes after the difficulty had ended, made the statement complained of. State's counsel asked the witness, the following question: "Doctor, in your opinion, was deceased conscious? A. `Yes, sir.' Q. `What did he say?' A. `Now, all this was said in monosyllables; that is, two or three words at a time. The first thing he said was, `What a pity! What a pity! They killed me for nothing. What will become of my poor wife and children.' He then turned to me, or Dr. Daniels, I don't remember which, and said, `Dr., can't you do nothing for me?' We just told him to be quiet.'" To support appellant's contention he refers us to Bateson v. State, 80 S.W. Rep., 88, where it was held the statement of deceased, "that they murdered me without cause" was improperly admitted, because a witness can only state matter involved in the dying declaration to which deceased could have testified as a witness if alive, and could not give in evidence matters of opinion; and also cited Medina v. State,43 Tex. Crim. 52; 63 S.W. Rep., 331. In Roberts v. State, 5 Texas Crim. App., 141, we held, where witness testified, "Alexander stated that Steve Roberts killed him for nothing," that said declaration was not an opinion. In Sims v. State,36 Tex. Crim. 154, we held the following declaration admissible: "Sims ought not to have shot me, and I did not think Sims was going to shoot." See also Connell v. State,46 Tex. Crim. 259; 10 Texas Ct. Rep., 890; sec. 1008, White's Ann. Code Crim. Proc. We think the declaration here, under the last cited authorities, was admissible, and not an opinion of the witness. However, that portion of the declaration which says, "What will become of my poor wife and children?" was not admissible. Cravens v. State, just decided. We think appellant is correct in his insistence that the testimony was not admissible as dying declarations but was admissible as res gestæ, since the same occurred within fifteen or twenty minutes after the fatal stab was inflicted. Witness did not testify that deceased knew he was dying, although he did die immediately.

The 18th error complains that while R.C. Barnwell, a witness for defendant, was testifying, appellant's counsel proposed to exhibit to said witness a stick of native pine wood, about two and one-half inches wide, at one end, and about one and a half inches wide at the other end, and three-quarters of an inch thick, and asked the witness how said stick compared with the one which he (witness) had testified that deceased had used in the difficulty at the time he was killed. Appellant offered further testimony to show that the original stick had been turned over to the district clerk of Upshur County, for safe keeping, but had been lost. Appellant then offered to prove by witness that the stick proposed to be exhibited to him was about the same size, width and material as said original stick. Whereupon the court asked attorney for appellant, if the stick which he proposed to exhibit was the one used by deceased at the time of and in the difficulty; and when defendant's counsel informed the court that it was not the original stick, the court of his own motion, instructed the jury that they would pay no attention to said stick, and thereupon ordered the sheriff of Camp County to take said stick out of the courthouse. The witness was not permitted to examine the stick, nor to testify in any way in regard to the same. Had the witness been permitted, he would have stated that the stick shown him was about the same size and character and material as the one used by deceased in the difficulty with appellant and his brother. Appended to this bill is the following explanation: "This was one of the last witnesses introduced by defendant. A large number of witnesses had testified and had described the stick. The State had closed and defendant was about ready to close. Defendant had this stick before the trial commenced. For some time they had displayed it before the jury. I supposed it was the stick used by Harrell and the jury were watching. Attorneys representing the State objected to its display before the jury. To have allowed this witness to testify would have made it necessary for the State to reintroduce a large number of witnesses and a great many of them had been excused and gone home, probably twenty witness had already testified describing the stick. This was at the very close of the case. It would not have been fair under these circumstances to allow this witness to compare the stick offered with that used by Harrell." We do not think the court was correct in excluding the testimony or the stick. If as stated in the explanation, probably twenty witnesses had already described the stick, it certainly would not be necessary to bring said witnesses back to redescribe the stick. We know of no rule of law that limits appellant' in the manner here shown, in the introduction of his testimony. If the stick was not similar to the one used by deceased on the day of the difficulty, then the testimony, as stated in the explanation, would clearly have shown that said witness' statements were untrue. On other hand, if the stick comported with the testimony of the other witnesses, it was legitimate testimony to go before the jury for whatever weight it might have. Appellant insists that deceased was attempting to strike and did strike him with a stick. The character and weight thereof was certainly a material inquiry in the course of this trial, and as to when the testimony was introduced, is a matter that we do not believe the discretion of the court can determine. It follows, therefore, that the court erred in rejecting this testimony.

Appellant's 23rd assignment complains that the court erred in refusing to permit H.C. Wilson to testify to any facts whatever, on the ground that he was jointly indicted with appellant. The fact as to this matter are about as follows: H.C. and W.L. Wilson were jointly indicted for this offense. H.C. Wilson's case had been reversed by this court, he having previously been convicted in the district court. He had not been retried. The venue of H.C. Wilson's case was changed to Wood County, and appellant's changed to Camp County. Under this state of facts, we do not think the court erred in refusing to permit H.C. Wilson to testify in this case.

The 25th assignment complains that the court erred in failing to charge the jury on the following matter: Appellant insists that it was a controverted point in the evidence whether A.W. Harrell (deceased) was conscious and sane at the time he is alleged to have made certain statements, just a short while before his death, as testified by Drs. Ragland, Ferrell and Roberts. The evidence on this point was conflicting, appellant insists, and the jury should have been charged that they could not consider said statements alleged to have been made by deceased to wit: "What a pity; what a pity, they killed me for nothing," unless they should believe from the evidence beyond a reasonable doubt that when said statement was made, deceased was conscious and sane of mind. We do not think such a charge was required. The majority of this court have heretofore held that the competency of the declarant is not requisite in order to prove in res gestæ declarations, therefore this was not an issue in the case. Kenney v. State, 9 Texas Ct. Rep., 889.

The 27th assignment complains of the following portion of the court's charge: "Implied malice is constructive malice, and not a fact to be proved specifically. It is an inference or conclusion founded upon the facts and circumstances of the case as they are ascertained to exist, thus: When the proof shows an unlawful killing, and no evidence has been adduced establishing the existence of express malice on the one hand, or which tends to establish any justification, excuse or mitigation on the other, the law implies malice, and the murder is of the second degree. But in this connection you are charged that, where an indictment charges murder on implied malice alone, and the evidence establishes or tends to establish express malice as a fact, it is not to be understood that such proof would on the one hand be incompetent nor on the other that it would create a variance from the allegation in the indictment; but such evidence, notwithstanding it shows express malice, would in such case be sufficient to warrant a conviction for murder in the second degree, since express malice comprises and embraces implied malice, just as murder of the first degree embraces murder of the second degree." This charge is correct.

We do not think, as appellant insists in his 45th assignment, that the court erred in charging on the law of principals, since evidence shows that at the time of the homicide appellant and his brother H.C. Wilson, were acting together in the fight in which deceased lost his life.

Appellant complains that the court erred in failing to charge the jury on the law of aggravated assault. We think the court should have charged on aggravated assault. The evidence does not show the size and character of the knife or knives with which the wounds were inflicted that caused deceased's death. The testimony indicates it was a common pocket-knife. This being true, it was the duty of the court, under articles 717 and 719, Penal Code, to charge on the law of aggravated assault. An inspection of these articles shows that the instrument or means by which the homicide is committed are to be taken in consideration in judging of the intent of the party offending. If the instrument be one not likely to produce death, it is not to be presumed that death was designed, unless from the manner in which it was used such intention evidently appears. Furthermore, where a homicide occurs under the influence of sudden passion, but by the use of means not in their nature calculated to produce death, the person killing is not deemed guilty of the homicide, unless it should appear that there was an intention to kill, but the party from whose act the death resulted may be prosecuted for and convicted of any grade of assault and battery. It follows from these articles, in the light of the evidence here that, if the jury should believe from the evidence that appellant while laboring under the influence of sudden passion, used a weapon not in its nature calculated to produce death, then the law will not deem defendant guilty of homicide unless it appears there was an intention to kill. Then, if appellant did hot have the specific intent to kill, he might be guilty of aggravated assault, or assault and battery, as the case may be. If appellant inflicted a serious wound upon deceased, it would be merely the duty of the court to charge on aggravated assault; but if the evidence should show that the wound was not a serious one, then it would be the duty of the court to charge on simple assault and battery. However, we have discussed these statutes so often that we refer to the decisions of this court for a further discussion of the same.

Appellant further complains of the argument of private counsel for the State. We do not deem it necessary to discuss the same. However, we again enjoin upon counsel for the prosecution to confine their remarks to the evidence adduced.

For the errors discussed, the judgment is reversed and the cause remanded.

Reversed and remanded.