No. 645. | Tex. Crim. App. | Jun 26, 1895
This is a conviction for murder of the first degree, the punishment being assessed at confinement in the penitentiary for life. Counsel for appellant contend that the court erred in the following particulars: "The court erred in admitting in evidence, over the objection of the defendant, the testimony of George Osborne and J.J. Faulk in relation to the efforts, diligence and failure of the grand jury of Henderson County and of said witnesses to find and obtain the shoes of the defendant, worn by him at the time of his arrest, and the issuance of subpœnas duces tecum by said grand jury for the purpose of obtaining them, the defendant during said time being in jail, for that it was not shown that the defendant was responsible for the failure to discover the shoes, and was not a party to the ex parte investigations of the grand jury, and their acts and conduct were not a legitimate issue in the case, and the defendant was not responsible therefor. One of the cogent facts relied upon by the State for conviction was certain tracks from near where the fatal shot was fired, in direction of and near to defendant's home. The distinguishing feature in the tracks was what the witnesses characterized as having been made by No. 7 or 8 shoes, one of *67 which was run down with a peculiar V-shaped cut in the sole of one of them, as evidenced by the tracks. The defendant was arrested at his uncle's, a mile or two from his own house. He then wore in old pair of shoes, seemingly too short for him, which had been cut at the toes. He was carried by his home, and, at his request, was there permitted to change his clothing. The defendant also changed his shoes. He was then carried to Athens, and lodged in jail. The witness, Osborne, states that the shoes worn by the defendant at the time of his arrest, and upon said changing of his clothing, had not since been seen by him. It was to obtain these shoes that the efforts of the grand jury were directed, the defendant in the meantime being in jail. The witness, Osborne, testified that the grand jury met in September following the homicide, and a very diligent and thorough search was made into this crime. "We had everybody in the neighborhood of the killing before the grand jury. Everybody was summoned who was supposed to know anything about the crime. The grand jury did not have W.P. Towery before them, but they did have Mrs. Sallie Coker as a witness. We tried two or three times by subpœnas duces tecum to get the shoes which Lee Coker had on when arrested, but we failed to secure them. J.J. Faulk testified that he was then District Attorney of Henderson county; that the grand jury met after the homicide in August, on the first Monday in September. We investigated the murder thoroughly, and ransacked the whole country for testimony. We sent two subpœnas duces tecum to get the shoes the defendant had on at the time he was arrested, but we failed to get them. W.P. Towery was not before the grand jury. I never heard of his knowing anything about the case. There was a habeas corpus trial. W.P. Towery was a witness then, and I never heard of his being a witness until that trial." And to the testimony of George Osborne, offered by the State, to the effect that the grand jury investigated the matter thoroughly, and ransacked the Country thoroughly for all the evidence they could secure, and issued subpœnas duces tecum for the shoes that the defendant had on the morning he was arrested, and to the questions eliciting the same, the defendant then and there, at the time of the trial, objected, upon the ground that the investigations of the grand jury were secret, and that the defendant was not there represented, either by himself or by counsel, and that the diligence of the officers of Henderson County was in no way an issue in the case, which objections were by the court overruled, and the testimony admitted, and to which the defendant duly reserved his bill of exceptions, and which bill of exceptions the court qualified as follows: "The court permitted the inquiry to show the diligence used by the State to obtain the shoes the defendant wore on the night of the homicide, and the failure of the State to obtain them. And to the testimony of the witness J.J. Faulk, offered by the State to prove the efforts made by himself as District Attorney, and the work of the grand jury in investigating the crime at the time the defendant was indicted, the defendant at the time of the trial then and there objected thereto, because the investigations of the grand *68 jury were matters of secrecy, and the defendant was neither represented by himself nor counsel before that body, and that the acts of the grand jury and their diligence in no way affected the rights of the defendant; but the objections of the defendant were overruled, and the testimony admitted, and to which the defendant reserved his bill of exceptions." The bill of exceptions relating to the testimony of J.J. Faulk was signed by the court, with this qualification, to-wit: "The court permitted the State to prove by the witness Faulk the efforts that were made by himself as District Attorney, and by the grand jury of Henderson County, which convened a few days after the homicide, to find the shoes which the defendant had on at the time of the homicide." The injury from such testimony is emphasized in the fact that Towery was a witness for the defendant as to alibi, and was disparaged by the testimony of Osborne and Faulk relating to said grand jury investigations. The injurious significance of said testimony relative to the diligence of the grand jury in the effort to procure said shoes is still further emphasized by the fact that the State, upon cross-examination of the defendant's stepmother, Mrs Sallie Coker, elicited the fact from her that a bailiff of the grand jury came to her for the shoes that the defendant had on the day he was arrested; that the bailiff came twice for them, but did not get them, because witness had turned the shoes over to Mr. Richardson, the then attorney for the defendant, and witness had not seen shoes since. Objection to all this character of testimony was reserved in the exceptions relating to the ransacking of the country for testimony, and the efforts of the grand jury and officers to procure the shoes in question, and which bills of exception are hereinbefore substantially set forth. No charge was given by the court defining the purpose or object of said testimony, nor any limitation placed upon the consideration to be given thereto by the jury. It was not shown that the defendant had any connection with the shoes in their disposition in the avoidance of the subpœnas duces tecum." The above objections and reasons for making same will now be noticed. The State, under the circumstances of this case, had a right to prove that the shoes could not be found; but all evidence introduced for the purpose of showing the character of the diligence used by the grand jury or any one else to discover the guilty party, or to ascertain which person knew anything about the facts of the case, was clearly inadmissible; such as, "W.P. Towery was not before the grand jury," "I never heard of his knowing anything about the case," "I never heard of his being a witness until at the habeas corpus trial, "the grand jury investigated the matter thoroughly and ransacked the country thoroughly for all the evidence they could secure." Now, Towery was a witness for the defendant, in support of alibi. His testimony was indirectly attacked by the evidence of Faulk and Osborne, the reasoning or deduction being that as Faulk and Osborne and the grand jury made diligent efforts to discover the witnesses in the case, and as Towery had not been discovered, therefore his evidence as to the alibi was manufactured. This is a method of impeaching a witness unknown *69 to the law. Again, if Mrs. Sallie Coker concealed the shoes, appellant was not responsible for her acts. She, however, being a witness for him, the State, for the purpose of proving that she was very much biased in his favor, if not wholly corrupt, and therefore wholly unworthy of belief, could show it. This evidence, however, was not limited to the only purpose for which it could have been introduced. The jury were not instructed to consider it only for the purpose of impeaching Mrs. Coker. In the absence of instructions clearly and emphatically limiting it to its proper use, the jury would in all probability reason thus: The mother knew her son to be guilty; she knew or believed that his shoes, if found, would convict him; hence her conduct. She concealed them from the officers, etc. For the reasons indicated, the judgment is reversed and cause remanded.
Reversed and Remanded.