Bennett v. State

81 S.W. 30 | Tex. Crim. App. | 1904

Appellant was convicted of murder in the second degree, the penalty assessed being eighteen years confinement in the penitentiary. This is the second appeal. See Bennett v. State, 76 S.W. Rep., 314.

Bill of exceptions number 2 complains that the State was permitted to prove by John Ward that defendant shot into the house where Dee Evans was. This testimony was part and parcel of the res gestæ of the shooting of deceased by appellant, her husband. The facts upon this appeal are practically the same as on the former appeal. There being a continuation of the shooting on the part of the appellant from the time the first shot was fired until deceased was killed, it becomes a part and parcel of the res gestæ of the transaction; and the court did not err in admitting said testimony.

The fourth bill complains that the court erred in permitting the testimony of John Stirmin, in which he relates the different means and methods he used in order to ascertain the whereabouts of appellant. After the shooting appellant ran off. The State proved flight. Stirmin was permitted to state what extent he as sheriff went to ascertain the whereabouts of appellant. He testified to sending letters and telegrams to various points in the State of Texas, trying to find the whereabouts of appellant. Counsel in their brief insist that this was error in view of the fact that the testimony is undisputed on the question of the flight of appellant; that appellant's flight being conceded, it was error for the court to permit the sheriff to state that he attempted to find the whereabouts of defendant, since this would impress the jury with the idea that the sheriff thought defendant was guilty. We do not think this objection is tenable. If it is proper to prove flight, the extent of the flight can be proved as a circumstance to indicate guilt; and if a witness makes inquiry over the State of Texas as to the whereabouts of an accused, the extent of this inquiry would evidence the extent of his flight; at any rate would indicate that he had run beyond the jurisdiction of the court, and to that extent would be admissible. Counsel refers us to Bennett v. State, 39 Tex. Crim. 679, in support of the proposition that the testimony is not admissible. We do not think this case is in point. There the sheriff was permitted to testify, that he had exercised every possible effort to ferret out the perpetrator of the crime, and had finally arrested defendant as the perpetrator. This would be getting before the jury the opinion of the sheriff, that defendant was guilty; but bare efforts on the part of a sheriff to ascertain the whereabouts of a party who has fled is not evidence that the sheriff believes such party is guilty, but is simply evidence of the fact of the flight and the extent of the flight.

Appellant objects to the following dying declaration, which was introduced in evidence on the trial, as shown by bill number 6: "Mount Calm, Texas, June 22, 1902. — Sworn Statement of Lula Bennett. My name is Lula Bennett. My husband Ben Bennett. I live in Waco, Texas. Dee Evans and I were sitting on the steps talking about shooting down at Day's Lake. A Mexican came up with some candy and he asked me if I wanted some, and I told him no. We were then talking about the shooting at Day's Lake. Bennett said, `Why in the hell don't you all talk about something else;' and Dee Evans asked him if he was talking to him or his wife. And he said he was talking to both of us. Bennett then jumped up and pulled his gun, and Dee went back into the house, and I told him not to shoot in the house among the people, but he shot anyhow. After that he (Bennett) shot me." Suffice it to say that the proper predicate was laid for the introduction of this dying declaration. However, the court through extra precaution submitted the matter as a question of fact to the jury. Appellant objects to the dying declaration on the ground that the same shows that it was the statement of the officers rather than deceased; that the officers even lugged in the statement that Bennett shot Dee Evans first, which is not corroborated by any witness in the case. Appellant urges various other objections to the dying declaration, but we deem it necessary to review only the one insisting that witness should only be allowed to testify orally to the dying declaration, and that a written dying declaration is not admissible in evidence. To sustain this proposition appellant has submitted a learned and lengthy argument. However, we have repeatedly held that a dying declaration, when proper predicate is laid, whether written or oral, is admissible testimony on the trial of the case. We do not think it violates the constitutional inhibition, either in letter or spirit. Taylor v. State, 38 Tex.Crim. Rep.; Kenney v. State, 9 Texas Ct. Rep., 888.

Appellant complains of the following portion of the court's charge: "The evidence of the witnesses Fannie Alexander, Dink Alexander Berry Malcomb, and Lou Hays to the effect, and in substance, that the deceased, Lula Bennett, did not say at any time in their presence that she was shot while the defendant and Joe Evans were shooting at each other and she didn't know who shot her, was admitted for the sole purpose to be considered by you for what you may deem the same worth, if anything, as affecting the credibility of the witness Henrietta Edwards and you can consider the same for no other purpose." The record shows that the State introduced an oral as well as a written dying declaration. After which appellant placed on the stand Henrietta Edwards and Bettie Davis, both of whom testified, in substance, that they were with Lula Bennett after she was shot and after she was removed to Waco, and before she died, and that they heard her say that Joe Evans and Ben Bennett were shooting at each other, and she, Lula Bennett, got shot but did not know who shot her. After these witnesses for defendant had thus testified, and after defendant rested, the State called to the stand Fannie and Dink Alexander, Berry Malcolm and Lou Hays, all of whom testified in substance that they were with Lula Bennett a considerable portion of the time after she was carried to Waco wounded, and they did not hear her say at any time that Joe Evans and Ben Bennett were shooting at each other and she got shot and did not know who shot her. The charge of the court was not correct. Said testimony is not impeaching testimony in its legal aspect, as appellant insists.

The State's witnesses do not testify, as appellant insists, that they were present at the time that the defense witnesses say they heard deceased make the statement, but the substance of their testimony is that they were present during most of the time of deceased's last illness, and never heard the statement. The above statement shows that the State's witnesses were not present at the time the defense witness testified that she heard deceased make the dying declaration. And even conceding that the State's testimony was admissible, yet it was not admissible for the purpose of discrediting the testimony of the defense witness, and the court erred in so limiting the same. As appellant insists, the witness may be discredited (1) by cross-examination; (2) by contradictory statements; (3) proof of the acts and declarations; and (4) general evidence of character. Russell on Crimes, p. 925. The evidence of the State does not come within any of the rules, and it was not incumbent on the court to limit it. The dying declaration testified to by the defense witness discloses that deceased said, among other things, that she did not know who killed her. Here the court, by the above quoted charge, is telling the jury that the negative testimony of the State's witnesses can be considered for the purpose of discrediting said witness who had testified to said statement. Negative testimony can not be used for the purpose of discrediting. The fact that the defense witness heard deceased make the statement testified to is not even disproved by the fact that three or four witnesses for the State testified that they were present most of the time and did not hear said statement. It follows that the court erred in giving this charge.

By the seventh bill of exceptions appellant complains of the failure of the court to grant him a new trial in order that he might avail himself of the testimony of the witness M.T. White. The substance of this bill, which is quite lengthy, is that White was the undertaker and testified on the former trial that the bullet extracted from the body of deceased was a 45-caliber. Deceased was shot only one time. Appellant's pistol was a 38-caliber. After the former trial witness White moved away to California, and appellant filed interrogatories to take his depositions. State's counsel neglected or failed to cross the same. The deposition was taken without being crossed. Thereupon the State, through the county attorney, procured the indictment of White for perjury, alleged to have been committed on the former trial of this case. By legal extradition he was brought back from the State of California on said charge of perjury. When defendant was tried, witness White was placed on the stand, and after testifying for defendant, as indicated above, the State, on cross-examination, without objection on the part of appellant, proved by said witness White that he was under indictment. for perjury growing out of his false testimony in the previous trial of this case. Subsequent to this trial the witness White was tried for said perjury and acquitted; and appellant alleges in this bill, as a ground for new trial, that he was entitled to the testimony of said White untrammeled by the previous indictment; and he also urges that the indictment of White was procured for the express purpose and only for the express purpose of disqualifying and discrediting his testimony in this case. The fact that said indictment of White was secured for this purpose is practically uncontroverted in the bill of exceptions. If appellant had objected to any proof by the State of the indictment of White, and over his objections said proof was introduced and he had reserved a bill of exceptions to the introduction of such proof, then the question here insisted upon would have been in the shape authorizing this court to review it. But having permitted said testimony without any objection at the time of its introduction, to go before the jury, however erroneously it may have been introduced, we know of no precedent authorizing the granting of a new trial, because of such neglect to make proper objection. The authorities cited by appellant in his able brief, to the effect, that where two are jointly indicted, both tried, and the second acquitted, and a new trial is insisted on for the first one tried, by virtue of said acquittal, do not apply here; because the witness White was not indicted for the same offense for which appellant was on trial, but was indicted for perjury growing out of the former trial of appellant. If proper bill of exceptions, as stated, had been reserved to this testimony, we hold that the same would have been error on another ground, to wit, the fact that a party has been indicted on testimony given in the trial of a case then on hearing, can under no circumstances be proved on that trial. To permit this would be authorizing the grand jury to throw the weight of its influence in favor of or against either side in the case then on trial, and unduly assist or prejudice one side of the litigation then before the court. This, we understand, is not proper under any practice; and is contrary to the holdings of the civil courts as to the admission of evidence. Casey-Swasey Co. v. Insurance Co., 8 Texas Ct. Rep., 150. However, we have no bill of exceptions; and the proposition before this court is, as stated, whether the testimony which has been erroneously introduced without objection, can be the basis on motion for new trial for the granting of the same? We hold not. We would not be understood as indorsing the effort on the part of the prosecuting attorney to disqualify the witness in the trial of the case. This practice has been very properly condemned and animadverted upon in Doughty v. State, 18 Texas Crim. App., 179; and we condemn such practice and here adopt the language there used as appropriate and pertinent to the facts shown.

For the error pointed out, the judgment is reversed and the cause remanded.

Reversed and remanded.