Bassham v. State

| Tex. | Jul 1, 1873

Walker, J.

There being no brief for appellant in this case, nor any assignment of errors found in the record, ^we are forced to look for a ground on which a reversal is sought to the motion for a new trial and the bill of exceptions.

A new trial was sought on the ground that the court erred in the charge to the jury, in that it directed the jury not to consider the defendant’s declarations at the time of the homicide as of any weight.

The instruction appears to have been given in reply to an inquiry coming to the court from the jury, and, looking to the statement of facts, we cannot see that instruc- . tion is erroneous. There was nothing proved which entitled the defendant to offer his declarations in evidence as part of the res gestee.

The defendant charged the deceased with insulting his wife, and thereupon shot him. If there had been any truth in this charge, it might have been proved upon the trial. The wife was not put upon the stand as a witness, nor any evidence offered which was competent to show that the appellant had received any information of an insult having been offered to his wife by the man he murdered.

The language of the charge, though not, perhaps, most aptly chosen, sufficiently explains the law to the jury, and could not have misled them. There was no evidence to show that the killing took place immediately upon the insult being offered to the wife of the appellant, or at the first meeting of the parties after the insult, if, indeed, any insult had been offered: A new trial should not have been granted upon the ground that the verdict is contrary to law and evidence. The verdict is amply supported by the evidence, and is in accordance with law. The defendant sought to borrow a pistol of one person who declined to furnish him the weapon. He borrowed one from another person, and, as near as we can tell from the proof, about one-half hour after he obtained the pistol he shot the deceased three times, inflicting a mortal wound at each discharge of the pistol.

We find nothing in the bill of exceptions requiring a reversal of this judgment.

When a party, on cross-examination of a witness, seeks to draw out new matter not inquired of on the examination-in-chief, he makes the witness his own for this purpose, and the opposite party may insist upon a cross-examination. Here the party on cross-examination sought to offer his own declarations, no part of which had been offered by the State, and which did not form a part of the res gestee-. Such evidence was incompetent. The court properly sustained the objection of the district attorney to the cross-questions put to a State witness. If the evidence were incompetent — but we confess we cannot understand from the record that such a ruling was made— for the record shows that a witness, Bullard, was permitted to state what was said both by Brock, the deceased, and by the appellant, at the time of the homicide — if the ruling complained of by the bill of exceptions was made during the trial, the court must have receded from it in admitting Bullard’s evidence, and the appellant could not have suffered by such a ruling. We find no error in the ruling of the court referred to in the 6th, 7th, 8th and 9th exceptions.

The evidence was not admissible. There was no error in the court refusing to give the special instructions asked. We find no evidence in the case which could properly have reduced the crime from murder to manslaughter.

The 13th exception is not well taken, and this is the only one requiring further notice. The defendant had a right to have the jury polled, but he had no right, after this had been done, to inquire of them if they had separated or been intoxicated during the trial.

The judgment of the District Court is affirmed.

Affirmed.