Barry v. State, No. 1167.

No. 1167. | Tex. Crim. App. | Mar 17, 1897

Appellant was convicted of murder in the first degree, and his punishment assessed at confinement in the penitentiary for the term of his natural life; hence this appeal. With regard to appellant's first bill of exceptions, we do not believe that it is well taken. The witness, Dennis Ford, was placed on the stand by the defendant, and, although defendant may not have asked him anything about where he was at the time of the difficulty, yet on cross-examination we believe it was competent for the State to show by him where he was at the time the shooting occurred. There is nothing in appellant's second bill of exceptions. The witness, Dennis Ford, on cross-examination, was asked the following question: "Is it not a fact that you stated to Mrs. Haddix, while the shooting was going on, that it was defendant killing the deceased, Healey; that you all knew it was going to come off; that your mother sent you and your brother, Tim Ford, away from home, so that you would not be there when it happened?" — "to which question the defendant then and there objected, on the ground that it was not a material inquiry in the case, was irrelevant," etc. The County Attorney stated, in the presence and hearing of the jury, that his purpose was to lay a predicate to impeach the witness, and to show a conspiracy to kill the deceased. The witness answered this question in the negative; but appellant insists that the question was illegal, and the statement of the County Attorney as to his purpose in eliciting the proof was improper, and calculated to prejudice appellant. It seems that the witness answered the question before the court had ruled on it, and the point of appellant's contention is, as above stated, that the question was illegal, and the remarks in connection therewith were improper. Strictly speaking, the question was not a proper one, for, shaped as it was, it did not propose to olicit any fact and would not have afforded a ground for impeachment; but we fail to see any such prejudice ensuing as was calculated to injure appellant. The bill of exceptions reserved as to the testimony of Mrs. Haddix does not show what her testimony was, and we therefore cannot tell what she testified to. The court withdrew it from the jury, but its nature is not stated, so it does not appear that the action of the court in regard thereto constitutes error. We do not believe it was competent for the State to prove by the witness, Mrs. Jackson, the conduct of the witnesses, Mrs. Ford, Mrs. Healey and Mrs. Barry on the morning after the homicide. She was permitted to state that she went to the house of Mrs. Ford, and saw said parties there. They were at the table laughing and talking, apparently as if nothing had happened. There was no proof of a conspiracy on the part of these witnesses with the defendant to take the life of the deceased, and, if there had been such a conspiracy, this circumstance happened after the commission of the homicide, and would not have been admissible, being a subsequent act, even though they had been co-conspirators with the appellant. Mrs. Ford was the mother-in-law and Mrs. Barry the sister-in-law of the appellant, and were also the mother-in-law and sister-in-law of the deceased, and Mrs. Healey was the wife of the deceased. Now, the fact that they were guilty of heartless conduct following immediately after the homicide, or that the witness should have been permitted to draw such a conclusion, and to state that impression to the jury, could serve no legitimate purpose in the case, and its only influence would be to the prejudice of the appellant. Nor do we believe it was proper for the State to elicit from Mrs. Jackson testimony to the effect that, on the morning after the homicide, she was at Mrs. Ford's, and that Mrs. Ford endeavored to make her remember that on a certain occasion the deceased, Healey, rubbed his hand on the stomach of Mrs. Barry, the wife of defendant, and asked her (Mrs. Barry) when the "damned little bastard was going to be borned;" and, on the witness replying that she "did not hear deceased use that language," that then Mrs. Barry said to her, "You will have to remember it," or, "You must remember it." Now, if Mrs. Ford had been placed on the stand, and she had been examined as to this matter, for the purpose of showing that she was interested in procuring testimony for defendant, or fabricating the same, and she had denied making this suggestion to Mrs. Jackson, then Mrs. Jackson might have been examined upon this point solely for the purpose of impeachment; but such does not appear to have been the case. Nor do we believe it was competent for the State to show by the witness, Mrs. Jackson, that during the trial which was then going on she had seen defendant's witnesses talking together frequently, in private, in a low tone of voice. We do not believe the court's explanation authorized this testimony, and its only effect was to suggest something undue or improper on the part of these witnesses with regard to their testimony, and so was calculated to be hurtful to the defendant. Appellant's sixth bill of exceptions is as to the action of the court in allowing the State to prove on the cross-examination of Mrs. Tim Healey (wife of the deceased) that deceased had an insurance policy for $1500 on his life for her benefit, which was objected to on the part of appellant, on the ground that no predicate had been laid for the introduction of the same, and that testimony in regard to said policy was immaterial, irrelevant, and incompetent; also by appellant's twenty-second bill of exceptions he raised the same objections to the introduction by the State of the life insurance policy itself, which was introduced in evidence over his objection. The court in the charge to the jury limited the purpose of this testimony as going to the credit of the defendant's witness, Mrs. Tim Healey. The language of the court in this respect is as follows: "You are further instructed that the testimony, oral and documentary, of the existence of a policy of life insurance on the life of Tim Healey, and the other testimony in relation thereto, was admitted in evidence for the sole purpose of showing the interest on the part of Mrs. Healey (if, in your opinion, such testimony does show, or tends to show, any interest on her part) in the death of said Tim Healey, thereby explaining (if, in your opinion, it explains or tends to explain) her evidence given in this case; and you will consider said testimony for such purpose only, and no other." The question presented is, was the testimony, the admission of which is complained of by appellant, admissible for any purpose? If there was testimony showing, or even tending to show, a conspiracy on the part of Mrs. Healey (wife of the deceased), in connection with defendant, to take the life of deceased, the evidence of the existence of a life insurance policy in favor of Mrs. Healey would be material, not only as bearing upon her testimony, but as furnishing a motive on the part of defendant for the perpetration of the homicide. Possibly, if there was testimony in the record tending to show that Mrs. Healey instigated the killing, though appellant himself was innocent of any guilty connection in conspiring with her to perpetrate the homicide, under the circumstances the policy of insurance might have been admissible for the purpose of discrediting her. We have carefully examined the record, and there is no testimony on the part of the State which, in our opinion, tends to show a conspiracy on the part of the defendant with Mrs. Healey, or with others, to commit the homicide; nor is there any evidence which tends to show that Mrs. Healey was instrumental in instigating or causing the homicide. As to the life insurance policy itself, the State introduced no evidence showing that defendant had any knowledge of its existence, anterior to the homicide, and the defendant testified that he had no such knowledge. Now, in the absence of any proof tending to show a conspiracy between defendant and Mrs. Healey (wife of deceased), or any fact which tends to show that she suggested, instigated, or promoted the killing, we are aware of no legal principle upon which said testimony regarding the insurance policy on the life of the husband of Mrs. Healey was admissible in evidence. The court limited the purpose of this testimony to the impeachment of Mrs. Healey. Without some guilty connection on her part in causing the murder, Mrs. Healey would be entitled to receive payment of said policy, whether the defendant in killing the deceased committed cold-blooded murder upon express malice, or whether he slew him in self-defense; so, in either event, the fact that she had art insurance policy on the life of her husband would be absolutely immaterial — her interest would be the same either way. Said policy could only go to her credit in the contingency above stated, that she had conspired with the defendant to kill deceased, or in some manner had instigated or was instrumental in causing the death of deceased. So that the real effect, of the limitation by the court in its charge as aforesaid was to instruct the jury that, if they believed she had any guilty connection with the homicide said policy could be used by the jury for the purpose of discrediting her, at least, the charge is pregnant with this suggestion; and the evidence, which was improperly admitted, was calculated to suggest to the jury a guilty connection with the homicide on the part of the witness, and to unquestionably prejudice the defendant's rights. Said insurance policy under the circumstances of this case, was not legitimate evidence for the purpose of discrediting the witness, Mrs. Healey. The circumstances of this case, as insisted upon by the State, show a most atrocious murder. The defendant himself, of all his witnesses, makes some suggestions in his evidence tending to show self-defense. The testimony of his witnesses does not attempt to gainsay a brutal killing, but the effect of their testimony is to show adequate cause to reduce such killing, which would otherwise be murder, to a case of manslaughter, predicated on insults to the wife and sister-in-law of appellant, and which had been communicated to him on the evening of the homicide, and but a short time prior thereto. We take it, that his real defense was manslaughter upon adequate cause. This adequate cause was presented in the testimony of Mrs. Ford, Mrs. Barry (wife of defendant), Emma Ford, and Mrs. Healey (his sister-in-law). The testimony of all these witnesses was material in establishing appellant's defense, and the effect of the illegal testimony was to suggest to the jury, and may have been used for that purpose, as furnishing a reason on the part of all of said witnesses to get rid of the deceased, and to suggest to the jury that the insults to the female relatives of the appellant was but a pretext, and that the real purpose of the homicide was to dispose of the deceased, so that they might enjoy the fruits of the policy; and the illegal testimony was calculated to, and no doubt did, in that way, affect all of the defendant's witnesses, and so strike at his main defense. As was said in Brittain v. State, 36 Tex.Crim. Rep.: "If the testimony did not tend to impeach or have that effect, it was before the jury, and notwithstanding the limitation, its effect was calculated to prejudice the defendant before the jury, and, as they might fail to see how such testimony might impair the truthfulness of the defendant as a witness, they might feel constrained to use it in some other way against him." The judgment is reversed, and the cause remanded.

Reversed and Remanded.