212 S.W. 163 | Tex. Crim. App. | 1919
Appellant was convicted of murder, his punishment being assessed at five years confinement in the penitentiary.
This is the second appeal, the first being found reported in
A bill of exceptions recites that after Russel testified for the State on cross-examination, he was asked, referring to his testimony in regard to appellant's conversation, if he did not state to Jim Manning that the defendant had made a statement to him, the witness, admitting the killing. This the witness Russel denied. It is then shown that the State proved by Russell that Manning told him, Russell, that defendant admitted to him, Manning, that he, defendant, had killed deceased. Manning was in attendance upon this trial, but was not used as a witness. Objection was urged to this testimony, which we think was well taken. If Manning made the statement to Russell that defendant admitted to him that he had killed deceased, it was hearsay and on a most material issue in the case. If defendant in fact made the admission to Jim Manning, Manning could have sworn to it, and it would have connected the defendant directly with the homicide, but this could not be proved by a statement of Manning made to Russell. This was clearly hearsay testimony and inadmissible. It is also shown that Manning was present and could have been called as a witness but was not. See Murphy v. State,
Another bill recites that appellant put his reputation in evidence as a law-abiding citizen, covering something like fifteen years prior to the time of the homicide. The State was permitted then to introduce testimony showing that fifteen or twenty years or more before this homicide, appellant was given to fighting, and also to prove by one or more witnesses that he was then regarded "as a holy-terror." The objection to this testimony should have been sustained. This was too long. The interregnum between his fighting capacity as a youngster and the time of this killing, something like fifteen or twenty years, is too remote. See Bogus v. State, 55 Tex.Crim. Rep.; Hanks v. State,
Another bill raises objection to the introduction of testimony of the witness Adams in regard to tracks. The record shows in this connection that the homicide occurred in the morning, about 9 or 10 o'clock. Quite a crowd of neighbors gathered in and around the body. The justice of the peace from Nacogdoches, and the sheriff, deputy sheriff and the constable from the town of Garrison were also among those present. There was a good deal of walking around about the scene of the homicide and investigation for tracks and evidences that might lead to the discovery of the party who shot the deceased. It was in a very densely wooded country and a great many leaves upon the ground which rendered it impossible, it seems from the testimony, to find tracks. None were discovered. About seven days afterward some of the officers were upon the ground looking for evidence. Among those present on the latter visit was the county attorney, who was not present on the day of the killing. He testified, among other things, that he found some tracks near the scene of the killing which he described as being made by a shoe about No. 8 or 9 in size, which showed peculiar indentations evidencing that the shoe had some protruding tracks which left an impression in the tracks so found. He testified further that the defendant was with them, and that they went to dinner at defendant's house, which was several hundred yards away, and while there they engaged defendant in conversation as to the character of shoes and boots that he owned. Witness asked the defendant the privilege of seeing his boots or shoes. Defendant told them there was a pair of boots in the room, which they examined, and witness says that these boots had tacks that would make a similar impression to those he saw on the ground near the scene of the homicide, and that he thought these boots were about No. 8 or 9 in size, and that his judgment and conclusion was that these boots made the tracks on the ground. It is further in evidence that the defendant made statements that he was about two hundred and fifty yards away from the scene of the shooting at the time it occurred; that he did not see either the man who fired the shots, or the deceased, and did not know what it meant; he supposed it was some people squirrel hunting, as a good deal of hunting was done in that immediate "bottom;" that he was hunting a cow or his cattle and paid no further attention to it. He took the witness stand and denied that he shot the deceased, and stated that he had no gun with him with which to shoot. He is borne out by the testimony of several witnesses, some of them State's witnesses, to the effect that he did not have a gun on this occasion. Appellant objected to the introduction of the testimony of the witness Adams as to tracks for want of definiteness, and also there was no comparison made, and the boots were *286
not placed in the tracks found upon the ground. and that witness was stating his conclusion. The question of the introduction of tracks has been the subject of a great many decisions, and it would seem that the admissibility of testimony is largely one of application to the particular case and the particular facts and environments as developed on the trial. Quoting from Mr. Branch's Ann. P.C., p. 81, it is stated that: "Before a witness can give his opinion as to the similarity of tracks found upon the ground and tracks made by the accused, the witness must have made some measurement of the tracks found upon the ground and the foot or shoe of the accused, or make some comparison between tracks found upon the ground and shoes known to be those of the accused such as placing the shoe in tracks on the ground; or if there are pecularities in the tracks made upon the ground, such as worn places or peculiar tracks, and such places or tracks were found upon or were made by the shoe known to belong to the accused, the witness may detail such facts and may then give his opinion as to the similarity between such tracks." In support of this Mr. Branch cites a great many cases. He again states this rule: "Where the witness did not measure the tracks nor measure the track or shoe of the accused, it is error to permit him to give his opinion as to the similarity of such tracks based on observing the tracks and afterwards observing the track and foot of the accused." A great number of cases he cites in support of that rule. It is also held in Hester v. State, 51 S.W. Rep., 932, that it was error to permit a witness to testify that the track on the ground and the track of defendant's horse was one and the same track; he should have stated the size, similarity, etc. See also Grant v. State, 42 Tex.Crim. Rep.. Smith v. State,
There is an attack made upon the court's charge on alibi and a requested instruction refused. The question came on the former trial, and it seems from the opinion on the former appeal and this record that the charge as given by the court is the same. Judge Harper, in the former opinion, suggested to the court he should give a more ample and complete charge on the question of alibi. We suggest again to the court that this be done.
There is another bill of exceptions which recites that appellant was seeking to introduce testimony which reflected upon the witness Russell, and the character of house he was keeping, and his sister-in-law, who was living in his house and had given birth to three illegitimate children. By this he was seeking to impugn the character of the witness Russell. We are of opinion this testimony was not admissible. The court observed in sustaining the objection that it was not admissible if the woman had seven hundred (meaning seven hundred illegitimate children). This will not occur upon another trial, but is mentioned so as to guard the trial court against making remarks of that character in the admission or rejection of testimony. The statute is rather explicit that the court should not indicate his view of the testimony, but simply sustain or overrule the objection when presented. This is in aid of another statute which provides the jury shall be the exclusive judges of the facts, the weight of the testimony, and the credibility of the witness, and was enacted also to prevent the court from conveying his idea of the testimony and the weight to be attached to it so as to impress the jury. We would again suggest to trial courts that it is always safest to follow statutes prescribing rules with reference to the trial of criminal cases. It avoids trouble and complications and the necessity of discussing such questions on appeal. It occurs to us it is about as easy to follow the statute as it is to violate it, and following it is the safest rule, and its violation is always upon dangerous lines. *288
For the reasons indicated the judgment is reversed and the cause remanded.
Reversed and remanded.