61 S.W.2d 825 | Tex. Crim. App. | 1933
Lead Opinion
Conviction for murder; punishment, six years in the penitentiary.
It was admitted that appellant shot and killed deceased. Appellant as a witness claimed that he shot in self-defense. We quote from his testimony: “I killed Hugh Rutledge because I thought he was going to kill me; I did not kill him for any relationship he had with my wife.” Later, he swore that he heard a motor vehicle stop and heard some one pulling at the screen door, and went out a side door and up to deceased and told him that he, appellant, had asked deceased to stay away from his place, and he would rather deceased would leave. He testified further that about this time some one called him and he turned his head and deceased hit him in the face and also grabbed him. He further testified that he jerked loose, and deceased backed away, went with both hands to his right hip pocket and pulled out a gun, but that he, appellant, was quicker and shot first.
In a dying statement, which was in evidence, deceased said that appellant shot him in the back. Other testimony shows. that deceased was shot in the back. No pistol was found on or near deceased after the shooting.
There are three bills of exception in the record. Bill No. 3 was taken to the cross-examination of appellant’s wife, the
Bill of exception No. 5 was taken to the refusal of a special charge which appears to be couched in almost the exact language of another special charge which was given. We find nothing in the other bill of exception worth discussing.
We have examined the exceptions taken to the court’s charge and believe none of them present any question calling for discussion. The trial court’s charge appears fair and comprehensive.
Finding no error in the record, the judgment will be affirmed.
Affirmed.
Rehearing
ON APPELLANT’S MOTION FOR REHEARING.
Appellant renews his contention that bill of exception No. 3 relating to the cross-examination of his wife reflects error. It appears to be appellant’s position that the state was permitted to use the statement made by his wife at her own examining trial — at a time when she was under complaint charging her with the murder of deceased — without first having shown that articles 247 and 248, C. C. P., had been complied with. The first article mentioned requires the magistrate to inform the accused of his right to make a statement relative to the accusation brought against him; and, further, to inform him that he can not be compelled to make any statement whatever, and that if he does make a statement it may be used against him. Article 248 provides that the accused may make a voluntary statement before the examination of any witness. Under the terms of said article, if a statement is made it must be reduced to writing, and is required to be signed by the accused and attested by the magistrate by his own certificate and signature to the execution and signing of the statement.
We have held that where the statement sought to be intro
Looking to the bill of exception, it is observed that it is shown in said bill that appellant’s wife was sworn by the magistrate and testified to the matters set out in the statement; and, further, that the witness duly signed the statement. There is nothing in the bill of exception to show that the testimony complained of was embraced in the voluntary statement attempted to be taken under the provisions of articles 247 and 248. On the contrary, the bill is susceptible of the construction that the witness took the stand on the examining trial as a witness for herself and was sworn, and that the testimony used by the state to impeach her was voluntarily given by her under oath as a witness for herself and not as a voluntary statement made under the provisions of articles 247 and 248. This being true, if appellant’s wife had been on trial under an indictment charging her with the murder of deceased, the testimony she gave at her examining trial could have been properly reproduced against her. The fact that her testimony on appellant’s trial was to the effect that one Barfield had told her to go down and make a statement and they would turn her loose would not, in our opinion, raise the issue as to the voluntary character of the tes
That the wife may be impeached by proof of contradictory statements made to third parties as to material matters inquired about on her direct-examination is well settled by the decisions. Rodgers v. State, 91 Texas Crim. Rep., 38; Escobar v. State, 51 S. W. (2d) 346. Stated in another way, the wife may be impeached by showing declarations made by her to a third party which are contrary to her testimony upon the witness stand, if pertinent to the examination in chief. Where a wife testifies before the grand jury voluntarily and at the instance of her husband who may be under investigation, the declarations made to the grand jury, if contrary to her testimony given on the trial of the case, and pertinent to the examination in chief, may be proven for the purpose of impeachment. Rodgers v. State, supra. If the wife is taken by process before the grand jury, and made to testify, her statements there cannot be proven for impeachment purposes, even though pertinent to the examination in chief. Rodgers v. State, supra; Doggett v. State, 86 Texas Crim. Rep., 98, 215 S. W., 454; Johnson v. State, 148 S. W., 328. The rule last mentioned has been applied by this court to declarations made by the wife to a justice of the peace, sitting under the authority of the statute for the purpose of investigating violations of the law. Turner v. State, 232 S. W., 801.
•We know of no case holding that the wife may not be impeached by testimony voluntarily given by her under oath as a witness at her own examining trial. The holding that such testimony may properly be reproduced against her upon the main trial of her case would seem to militate against the conclusion that it could not be used to impeach her as to material testimony given on the trial of her husband for the identical offense with which she was charged at the time of her own examining trial. Appellant’s wife was not forced to testify on her examining trial, but availed herself of the right accorded by law to give testimony in her own behalf. On the present
Appellant submitted to the court, as shown in bill of exception No. 5, the following requested instruction: “If you believe from the evidence beyond a reasonable doubt that the defendant on or about the date alleged in the indictment, shot and killed Hugh Rutledge in the county of Upton and state of Texas, and if you believe from the evidence beyond a reasonable doubt that such killing did not occur in the exercise of the right of self-defense on the part of the defendant, as that right has been defined to you, then in this connection you are instructed that if from the evidence you believe, or have a reasonable doubt that the defendant had been informed by his wife of intimate relations with the deceased and you believe or have a reasonable doubt that, by reason thereof, if any, the mind of the defendant was at the time of the killing rendered incapable of cool reflection, or if by reason thereof, the defendant's mind, through anger, rage or resentment was rendered incapable of cool reflection and you believe or have a reasonable doubt that while in such condition of mind he shot and killed the deceased, then under such conditions, if any, you could not assess the defendant’s punishment at a period longer than five years confinement in the penitentiary.”
Chapter 60, Acts 42nd Legislature, Regular Session, reads as follows: “In all cases tried under the provisions of this Act it shall be the duty of the court, where the facts present the issue of murder without malice, to instruct the jury that murder without malice is a voluntary homicide committed without justification or excuse under the immediate influence of a sudden passion arising from an adequate cause, by which it is meant such cause as would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper sufficient to render the mind incapable of cool reflection, and in appropriate terms in the charge to apply the law to the facts as developed from the evidence.”
Since the repeal of the statutes defining manslaughter, the court is not required to define the term “adequate cause” other than as same is defined in the chapter above quoted. The charge sought by appellant failed to embrace a correct definition of the
According to appellant’s testimony, he did not shoot deceased because of any relations deceased had had with his wife. He said he killed him in self-defense. His testimony was to the effect that he had met deceased several times after his wife had informed him of her relations with deceased, and had made no effort to harm deceased. He said he had merely asked deceased to stay away from his place of business. He declared that on the occasion of the homicide deceased had attacked him, and made a movement as if to pull a pistol, and that he shot deceased believing that his life was in danger. We find no evidence in the record, either from state’s witnesses or appellant and his witnesses, raising the issue that at the time appellant killed deceased .his mind was incapable of cool reflection because of anger, rage, or resentment arising from the information his wife had given him concerning her relations with deceased.
The sentence is reformed to show that appellant is condemned to confinement in the penitentiary for not less than two nor more than six years.
The motion for rehearing is overruled.
Overruled.