Foster v. State, No. 6604

No. 6604 | Tex. App. | Jun 15, 1889

Willson, Judge.

Deceased owned a pasture through which there was a neighborhood road. There was a gate on said road opening into said pasture. This gate was frequently left open by unknown parties. About two weeks before the homicide deceased removed the gate, and in its place stretched wires across the road. These wires were daily taken down and left down by unknown parties. Near this entrance to the pasture and on said road the homicide occurred. On the trial the defendant objected to testimony showing that said gate had been left open, and that said wires had been taken down and left down, because it was not shown that the defendant was in any way connected with these acts, and he reserved a bill of exceptions to the admission of said testimony. We are of the opinion that under the facts of this case the testimony was admissible. It tended to throw light upon the transaction, and was so closely connected therewith as to render it relevant and necessary to a proper understanding of the circumstances of the homicide. It tended to explain the presence and conduct of the deceased at the place and time of the homicide. Hobbs v. The State, 16 Texas Ct. App., 517.

N. B. Johnson, a witness in behalf of the State, testified that on the day after the homicide he had a conversation with Tom Foster, defendant's brother, and who was present at the homicide, in which conversation said Tom Foster stated that he held the deceased while the defendant cut him with a knife. This conversation with Tom Foster did not occur in the presence of the defendant, and was therefore hearsay, and inadmissible as criminative evidence against the defendant. It was admissible for but one purpose—that is, to impeach the testimony of Tom Foster, and for this purpose alone it seems it was offered and admitted. But the court in its charge to the jury omitted to instruct that said testimony could not be considered as criminative evidence, but could be considered for the single purpose only of determining the credibility of the witness Tom Foster. This testimony going to the jury as it did, without any instruction from the court restricting its consideration and effect, was well calculated to, and no doubt did, prejudice and injure the rights of the defendant as criminative evidence. Barron v. The State, 23 Texas Ct. App., 462; Tucker v. The State, Id., 512; Branch v. The State, 15 Texas Ct. App., 96.

It was not error, we think, to reject testimony offered by defendant to prove statements made by the deceased after he was wounded as to the transaction. This was hearsay evidence.

One paragraph of the charge of the court is as follows: “ If defendant was oh the premises of said Selman at a point where he had no lawfuright or permission to be, and by his oAvn voluntary Avrongful acts in so being on Selman’s premises Avithout any right or permission, or by other Avrongful acts injuriously affecting the property of said Selman, caused and provoked the difficulty, then defendant Avould not be justified,” etc. Defendant objects to this portion of the charge upon the ground that it was not demanded or warranted by the evidence, and we think the objection must be sustained.

It is shown by the evidence that the defendant at the time of the homicide Avas returning home from deceased residence, where he had been with a Avagon to do some hauling for deceased. He Avas on the premises of deceased with his permission and as his employe. He Avas traveling the neighborhood road, a road much traveled, and the most direct road to his home. He had never been forbidden by the deceased to travel said road through said pasture, or notified in any way'that it was wrong to do so. There is no evidence that he injured or attempted to injure the property of deceased, or that he had committed or was committing or attempting to commit any trespass upon the premises or property of the deceased. These being the facts, it was material error to instruct the jury as above quoted, and thus present to them an issue not raised by the evidence, and the error was one calculated to mislead the jury prejudicially to the defendant. We think that under the evidence the defendant was entitled to a full, unqualified presentation of the law of self-defense.

There are other questions presented upon the charge of the court which we do not pause to discuss, for the reason that they may not occur on another trial. Neither will we pass upon the sufficiency of the evidence to support this conviction, but will remark that to our minds self-defense, if not conclusively, is persuasively established by it, and we are not prepared to say that upon the evidence as presented in the record we could permit the conviction to. stand.

Because of the errors we have specified the judgment is reversed and the cause remanded.

Reversed and remanded.

Judges all present and concurring.