28 Tex. Ct. App. 247 | Tex. App. | 1889
Lead Opinion
Numerous objections are urged by counsel for the defendant to the charge of the court, each of which we have carefully considered, and will briefly refer to and determine.
1. “Malice” in the charge is defined to be “the intentional doing of a wrongful act to another without legal justification or excuse.” This definition of the term is precisely the same as that given in McKinney’s case and approved by this court. 8 Texas Ct. App., 626; see also Harris, v. The State, Id., 90, as to definition of “'malice”; Lander v. The State,. 12 Texas, 481.
2. It was not error to instruct the jury that if the defendant “killed" the deceased by shooting her with a pistol, or by cutting her with a-knife,” etc. It was charged in the indictment that he used both means-in killing her, and it was sufficient to prove that he used either. Hoiwas it necessary to prove or charge, in view of the other evidence in the case, that the weapon used was a deadly one.
3. Upon the presumption of innocence and reasonable doubt the-the charge is full and correct, and not subject to the objections made to it.
4. Hor is the charge on circumstantial evidence objectionable, but on the contrary it is substantially the form of such a charge which has repeatedly been approved in this and other States. It has not been usual to add to a charge upon circumstantial evidence the last sentence contained in the one before us, but we can perceive no error in such addition, as it certainly announces a correct principle of law applicable to the case.
5. A majority of the court hold that the charge on alibi is sufficient. It is almost a literal, and is a substantial, copy of the one approved by this court in Walker v. The State, 6 Texas Court of Appeals, 576. It has; been approved by this court in numerous subsequent unreported eases. We are unable to appreciate the objections made to this charge. We can not see that it is upon the weight of the evidence, or that it sums up the evidence or any portion of it. It does not obtrude upon the jury the-opinion of the judge as to the facts upon the issue. It refers to the term alibi as a defense.
It is argued that alibi is not a defense. This objection is to our mind without merit, and but for the dissent of our brother, Judge Hurt, and the earnest insistance of counsel for defendant, we would not regard it as requiring serious consideration. In common parlance the term alibi is understood to mean a defense made in a criminal prosecution. It is denominated a defense in Webster’s Dictionary. It is also denominated and treated as a defense by courts of the highest authority, and by stand
Mr. Saclrett, in his Instructions to Juries, p. 499, gives two approved forms of a charge upon alibi, in both of which it is denominated defense. In the American and English Encyclopsedia of Law we find the following: “A prisoner or accused person is said to set up an alibi when he alleges that at the time when the offense with which he is charged was committed he was elsewhere, that is, in a different place from that in which it was committed. If proved, it is of course a complete answer to the charge. An alibi is as much a traverse of the crime charged as any other defense.” Vol. 1, pp. 454, 455. Numerous decisions are cited in the notes to the text above quoted, in many of which alibi is referred to and denominated a defense. We think alibi is a defense; as much so as insanity, or any other exculpatory matter. But it is further insisted that the charge in question erroneously casts upon the defendant the burden of proving an alibi, and that such a charge was condemned by our Supreme Court in Walker v. The State, 42 Texas, 360. An examination, of the charge under discussion in the Walker case will show that it and the charge given in this case are essentially and widely different, and we do not regard the decision in that case as an authority adverse to the views which we here announce. Our understanding of the rule is, that when the evidence for the State has established beyond a reasonable doubt that, defendant was present and participated in the commission of an offense, and is guilty as charged, he may rebut the case made by the State by proof of an alibi, but unless he makes such proof, or proves some other matter which will exculpate him, or raise in the minds of the jury a reasonable doubt of his guilt, his conviction must follow. It is not required, in order to entitle a defendant to an acquittal upon the defense of alibi, that, such defense should be established beyond a reasonable doubt. The rule is, that if the evidence adduced in the case, whether in behalf of the State or of the defendant, engenders in the minds of the jury a reasonable doubt as to defendant’s presence at the time and place of the commission of the offense, the defendant is entitled to an acquittal. We do not understand the charge under consideration as shifting the burden of proof from the State to the defendant. It does not instruct that the burden of proving an alibi is upon the defendant, or in any way intimate that he must make such proof. It simply and clearly states the rules of the law as to the effect of such proof. This view does not conflict with the decisions of this court in Humphries v. The State, 18 Texas Court of Appeals, 302, and Ayres v. The State, 21 Texas Court of Appeals, 399, as will be seen by a careful analysis of those cases. We can not conceive
6. A majority of the court are of the opinion that it was not error to admit, the testimony of the witness Barbee relating to the statements made to him by the witness Judy James. Defendant sought to cast discredit upon the witness Judy James by showing on her cross-examination that her testimony against the defendant was the result of fear, and influenced by a desire to shield herself and husband from being accused of the murder. Defendant himself, through his counsel, in his cross-examination of the witness Judy James with a view to impeaching her testimony, called forth, if not directly, yet legitimately, the statements objected to. The statements objected to were a part of a conversation brought out by the defendant, and the State was entitled to have the whole of said conversation. These statements were admissible under the express provision of our statute which expands the common law rule with reference to such evidence. Code Crim. Proc., art. 751; Willson’s Grim. Stats., sec. 2481. It was doubtless under said provision of the statute that the trial judge admitted said testimony as part of the conversation between the two witnesses Barbee and Judy James drawn out by the defendant’s counsel, and it being in our opinion clearly admissible under said provision, it is unnecessary that we should determine whether or not it was admissible for the purpose of corroborating the witness Judy James. We are inclined to the opinion, however, that it was admissible for that purpose also.
7. A majority of the court hold that it was not error to reject the testimony of the defendant’s witness Peareson as to the litigation between defendant and the deceased. Said witness was permitted to and did testify about such facts relative to such litigation as were relevant to the issue and otherwise competent. But the other matters sought to be elicited from said witness were not admissible under any rule of evidence with which we are familiar. They were declarations made by defendant to his counsel, and advice given to him by his counsel. Such testimony must be regarded as in the nature of self-serving and incompetent in behalf of the defendant.
8. There are numerous other assignments of error which we do not discuss because we deem them unimportant and without substantial merit. We have found no error in the conviction. We think the evidence supports it. It was the province of the jury to weigh the evidence and pass upon the credibility of the witnesses, and accepting as true the evidence adduced by the State, there can be no question of the defendant’s guilt of a most atrocious murder.
The judgment is affirmed.
Affirmed.
Dissenting Opinion
This is a conviction for murder of the first degree, the penalty fixed being confinement in the penitentiary for life.
Appellant makes twenty-six assignments of error. I have carefully examined each in connection with the-brief for the State and the record. I desire to notice in this opinion only such of them as I deem to be of serious character, remarking that the points made and not discussed are held to be, if errors at all, not reversible errors. I will not take up the assignments in the order presented in counsel’s brief.
David James and his wife Judy were the tenants of appellant, and occupied a house of two rooms. In the absence of David, Judy being at home, Mrs. Brown, the deceased, and her son moved into the house, occupying one room, without the consent of any person. Several days after this, on the 7th day of December, 1887, about eight o’clock at night, three men, one being Henry Allen, broke open the door to the room occupied by Mrs. Brown and her son, seized and carried them off. Both were tied before they were taken from the house. On the next day, about a mile west of David James’s house, on the prairie, Mrs. Brown and her son were found. They were dead, having been killed by gun shot or pistol Avounds, or with some sharp instrument, or both.
The State relied (1) upon motive; (2) slight physical circumstances attending the homicide; (3) positive evidence to the identity of appellant as one of three who carried the deceased and her son from the house of David James; (4) the opinion of David James as to the similarity in shape and movements in appellant and one of the party which carried off Mrs. Brown and her son; (5) the dog matter. There may be other circumstances relied upon, but the above constitute the main facts for the prosecution.
To show that David and Judy James were mistaken or swore falsely, appellant introduced several witnesses by whom he proved that he was not at James’s house when Mrs. Brown and her son were taken away, but that he was at the house of J. 0. Cooper, who lived about twelve or fourteen miles from James’s.
How, under the facts of this case, the only method or means by which appellant could completely meet or cast a doubt upon the State’s case was such proof, which is commonly known and called proof of an alibi. This being the case, it was of the first importance that there should be no error in the charge of the court upon this subject. Counsel for appellant in their ninth assignment of error complain, and I think justly, of the charge upon this subject.
The court instructed the jury as follows: “Amongst other defenses interposed in this case by the defendant, is what is known in legal phraseology as an alibi—that is, that if deceased was killed as alleged, the defendant was at the time of such killing at another and different place from that at which such killing was done, and therefore was not and
I have two objections to this charge: (1) It is wrong to instruct the jury that the defendant interposes an alibi as a defense, because an alibi is no defense at all, m any other sense than as rebutting evidence, tending to disprove the facts relied on by the State for conviction, or as evidence tending to cast or create a reasonable doubt of the truth of the facts relied on by the State for conviction.
Let us illustrate: A is charged with murder. B and C were present at the homicide. They swear to facts which make out a case of murder. D is also present, and swears to facts which, if true, defeat murder, or which might create a reasonable doubt in the minds of the jury as to the truth of the case as made by the testimony of B and 0. The facts sworn to by D would be a defense in one sense, and in the same sense would an alibi be a defense—both being an attack upon the case as made by the testimony for the State, and in no other sense are they defenses. The danger to the accused from a charge telling the jury that an alibi is a defense is this: It is calculated to impress the jury with the idea that the alibi is a separate and distinct issue presented by defendant for solution by the jury, and this being so, the jury will naturally hold the accused to proof of his plea, whereas the correct principle requires the charge to be so framed as to present but one issue, i. e., did the appellant kill and murder Mrs. Brown?
(2) The charge defines an alibi thus: “Amongst other defenses interposed in this case by the defendant is what is known in legal phraseology as an alibi—that is, that if the deceased was killed as alleged, the defendant -was at the time of such killing at another and different place from that at which said killing was done, and therefore was not, and could not have been the person who killed deceased,” etc.
In treating of alibi some of the books state that the accused who pleads or relies upon it must prove it; that the burden is placed upon the accused, and he must prove that it was impossible for him to have committed the offense, because he was at so great a distance therefrom. The rule casting the burden of proof upon the defendant is most emphatically repudiated by our Supreme Court in Walker v. The State, 42 Texas, 360. The false theory or principle which places the burden to prove alibi upon the accused (which no doubt rests upon the idea that alibi is a separate and distinct issue in the case), is the natural parent of that rule which requires the accused to prove that it was impossible for him to have been at the place where the offense was committed. Both of these rules rest upon the same reasons, and in each instance the reasons are fallacious.
But it is urged by counsel representing the State that the charge upon this and all other questions should be construed as a whole, and that as the court instructed the jury that “if the evidence raised a reasonable doubt in their minds as to the presence of the defendant they should acquit.” This instruction, while correct, does not extract the vice from the charge even when tested as a whole. Why? (1) Because, as above stated, the charge is so framed as to impress the jury with the idea that an alibi is a separate and distinct issue, with the burden on appellant to prove it. (2) The'jury might solve the doubt against the appellant by holding from the evidence bearing upon the alibi that it was not impossible for the appellant to have been present and to have killed deceased.
The State relied upon two matters as motive moving appellant to kill the deceased: (1) That deceased and her son, without authority and by force, entered and took possession of appellant’s house. (2) That appellant and Mrs. Brown had been and were then in litigation about the title to land. Evidence supporting both of these matters was introduced by the State to show motive.
Appellant to meet the second ground introduced as a witness P. E. Peareson, wjio was and had been for years the attorney for appellant in the land suit. By this witness appellant proposed to prove facts which would tend to show the state of defendant’s mind concerning the said litigation—his knowledge of the same as gained from his attorney, the witness. The facts proposed, if true, tending strongly to eliminate this litigation from the case as a motive for the murder, the court in my opinion erred in rejecting them. Preston v. The State, 8 Texas Ct. App., 30; Bouldin v. The State, 8 Texas Ct. App., 332; Washington v. The State, 8 Texas Ct. App., 377; Noftsinger v. The State, 7 Texas Ct. App., 301; Cooper v. The State, 19 Texas, 443; Burns v. The State, 41 Texas, 351; Burrill’s Cir. Ev., 466; Roscoe’s Crim. Ev., 18, 19.
In a case depending upon circumstantial evidence the mind seeks to explore every possible source from which any light, however feeble, may be derived. If this be a sound and just rule for the prosecution, it should be for the accused.
Question: “ State to the jury whether or no Hr. Gallaher was advised by you as to the condition of his title and the prospects as to the result-of his suit?” By the answer the appellant proposed to prove that the attorney had advised him that there was no doubt as to his title to all the land he claimed.
Again: “State whether or not after that suit was brought and before Mrs. Brown was killed, Mr. Gallaher, through you as his attorney and through Colonel Dennis, did not offer to let Mrs. Brown have all the land she had any title to?” Answer: “He did.”
“ Is it not a fact that when the offer was made to her in court that her lawyers and the judge presiding advised her to accept?” To which question the witness would have ahswered, that being of counsel for Gallaher he and his associate advised him that there was no doubt as to his title to-all the land which he claimed; that in open court, as counsel for Gallaher, he and his associate counsel offered to permit Mrs. Brown to take judgment for 200 and odd acres of land claimed by her; that that was all the records showed she was entitled to; that her own counsel and the presiding judge advised her to accept the offer; that Gallaher was advised by his counsel that there was no doubt of his holding all the land claimed by her; that there was no cause to doubt the result, and that he was fully satisfied he would hold it, and did not express nor seem to feel any anxiety about the case, and that he did not in any way delay the case.
Under the circumstances of this case I am clearly of the opinion that, these facts were admissible, and that it was error to reject them.
A bill of exceptions duly saved by defendant’s counsel shows: “J. G. Barbee, a witness for the State, was asked on cross-examination by the defendant’s counsel if he, witness, did not say to , Judy James that her husband’s neck was in danger if she did not tell what she knew.” To-which Barbee answered, “I do not know that I used language as strong as that, but I told her she was in a critical situation; that the parties had been taken from her house and that she ought to know something about-it. I used words to the effect that if she did not tell what she knew she and her husband were in danger. I can not recollect my words, but my language was to that effect.” Thereafter, on re-examination of the- said Barbee by the State, the State’s counsel said to the witness, “You were asked by the defendant’s counsel if you did not tell this woman, Judy James, that she and her husband were in great danger; that she ought
The objection made by defendant was overruled for the reason that the testimony was admissible in connection with the answers of the witness Barbee drawn out by defendant’s counsel on the cross-examination of the witness on the same subject, and the witness was thereupon permitted to answer as follows: “Her reply was something to this effect: that she was afraid to state it out there in that crowd; that Mr. Gallaher was one of the men; that she heard the shots over there in the prairie (pointing the direction to witness); that they (she and her husband) were afraid to go out there to see, and that they had not been out there.” The witness further said that “ there was no one but her and me present when this conversation occurred; but shortly afterward Mr. Jones, the sheriff of Wharton County, came and we had an interview with her.”
This testimony, in my opinion, was not admissible upon any ground. But it is contended by counsel for the State that it was a part of the conversation between Judy James and Barbee. But the questions propounded by counsel for appellant did not seek to elicit this conversation, nor were they so framed. Barbee, at the instance of the defense, did not state one word that Judy James said to him, Barbee. It is true that defendant sought to show by Barbee that undue influences may have induced her to swear that Gallaher was one of the party which carried off the deceased and her son. Conceding this, the State could show that she had made the same statement before such influences were applied. This could be done to support her, and to refute the inference that she was induced to swear as she did by such influences.
But her statements made after the influences had been applied to her were not admissible.
Upon this subject Mr. Wharton says: “When a witness is assailed on the ground that he narrated the facts differently on former occasions, it is ordinarily incompetent to sustain him by proof that on other occasions his statements were in harmony with those made on the trial. Thus, the declarations of a complainant in bastardy, whether made before or after her formal accusation upon oath as to the paternity of her child, have been held inadmissible in evidence, when offered by her either to show constancy or to strengthen her credit, since they have no tendency to da either. They are no proof, such are the reasons, that -entirely different statements may not have been made at other times, and are therefore no
It will be seen from the above that the statement made by the witness corroborating his evidence on the trial must be uttered soon after the transaction occurred, or at least at a time when the witness could not have been subjected to any disturbing* influences. I believe no case can be found holding that a corroborating statement made after the disturbing influences were applied.or may have been applied, is competent, admissible evidence.
Again, it will be observed that the rule cited from Wharton excludes the particulars of the statement. He says: “ The witness called to corroborate the impeached witness in this respect is usually confined to the fact that the statement was made to him as shown by the impeached witness, and is not permitted to give the particulars of the statement.” Rex v. Neville, 6 Cox C. C., 99.
But it is urged by the State that, conceding the incompetency of this" evidence, there was no injury to appellant, because Judy James stated at the time deceased was taken from the house that appellant was one of the party, and hence she could not have been wrongfully influenced to thus swear upon the trial.
The testimony of this witness is voluminous, especially that given on cross-examination; and after a very careful examination of all that she says bearing upon the identity of appellant as one of the party who took deceased and her son from the house, I am impressed with the conviction that her testimony is very unsatisfactory. _ It is true that she said to her husband when the three men came and passed through the kitchen into the main room in which Mrs. Brown and her son were, that “"she believed one of the party was Mr. Gallaher.” She did not state to her husband that she knew it .was Gallaher. She was not positive, but believed him to be one of the party. How, when as told by Barbee, after she and her
On the fatal night she believed merely. On the trial she is positive, with conflicting and unsatisfactory reasons for being so. To Barbee, positive. How, under these circumstances I hold that this incompetent evidence may have had a serious effect upon the jury. They may, and probably did aid and strengthen Judy's testimony by that of Barbee. If she had been positive and clear as to the presence of appellant at the house and positive then, when the party was there, though inadmissible, her statement to Barbee might have been held harmless, though I find no authority for its admission, nor that, being admitted, it would be held without injury.
A number of witnesses swear to facts strongly supporting the theory of •defendant, to-wit, that he was not at the place of the homicide. This was very important testimony, and if true, or had the effect to create a reasonable doubt of appellant's presence at the homicide, would or should have produced an acquittal. The State introduced a number of witnesses by whom several witnesses who swore to the alibi were impeached—their character for truth and veracity being bad in the opinion of the impeaching witnesses.
Counsel for appellant at the time objected to the charge of the court because, as alleged in their brief, it failed to instruct the jury that a witness sought to be impeached may still be believed by the jury, and that, notwithstanding such impeaching testimony, they are still the judges of the credibility of all the witnesses sought to be impeached.
Examining the bill of exceptions I find that the objection was as follows: “Because charging that the jury are the judges of the credibility of the witnesses, the charge fails in that connection to charge that this included the credibility of the witnesses sought to be impeached, and that, after considering all the testimony of all the witnesses, if the jury
The learned judge instructed the jury as follows: “You are the sole-judges of the weight of the evidence and the credibility of the witnesses.” Evidently this means the weight of all the evidence, that given by the witnesses sought to be impeached as well as that given by the other witnesses. So with reference to the credibility of the witnesses, it means-the credibility of all the witnesses. Notwithstanding the impeaching-testimony, the jury were still the judges of the credibility of the witnesses; and this they were told in language sufficiently plain to leave no room to doubt. I have examined all the cases and authorities cited by counsel for appellant, but find no case or text which holds that if the-court fails to charge the jury that in case there has been evidence tending to impeach a witness, yet they are still the judges of his credibility, would be error. Cases can be found in which, under peculiar circumstances, it has been held error to omit in the charge “ that the jury are the judges, of the weight of the evidence and credibility of the witnesses.”
For the reasons mentioned above the judgment should be reversed.
[Note.—The foregoing opinions on the merits of the appeal, the majority of the court affirming the judgment, were delivered at the Austin Term, on the 28th day of June, 1889. The motion for rehearing was taken under advisement and transferred to Tyler, where, on the 7th day of December, 1889, by the same division of the court, the motion was-overruled, in the opinions which follow below. The case is now reported under the Tyler number, but the record appertains to, and is on file at the Galveston branch.-—Reporter.]
Rehearing
On Motion for Rehearing.
After considering the very able arguments and briefs of counsel for defendant on this motion, and after a careful and thorough re-examination and reconsideration of the record, a majority of the court adhere to their views expressed in their former opinion, and hold that there is no error in the conviction for which it should be set aside.
It would be unprofitable, we think, to enter upon an elaborate discussion of the questions determined in our former opinion. We will, however, add some further remarks in support of our views heretofore stated.
1. As to the definition of “ malice ” given in the charge of the court. It was well said by Judge Clark in Harris v. The State, 8 Texas Court of Appeals, 90, that “ a perfectly exact and satisfactory definition of that term (malice), signifying its legal acceptation in a form at once clear and concise, has been often attempted, but with no very satisfactory perma
Again, in considering the sufficiency of the definition of malice, we should look to other portions of the charge explaining malice. Immediately following the definition objected to is an explanation of express malice as follows: "Express malice aforethought is where one with a sedate and deliberate mind and formed design unlawfully kills another,” etc. It required this kind of malice to constitute murder in the first degree, and this explanation of express malice in and of itself fully expresses the legal meaning of malice, for if the killing was unlawful, and if the slayer committed the act deliberately, and in pursuance of a formed design to kill, the killing would be upon malice. There could be neither justification, excuse, nor extenuation for the act.
2. As to the charge on alibi, as stated in our former opinion, it is substantially the same as one approved by this court in Walker v. The State, 6 Texas Court of Appeals, 567. We are unable to appreciate the soundness - of the objections made to this charge. It is urged that the charge is wrong because it requires the jury to believe, in order to acquit the defendant, 'that he was not and could not have been the person who killed the deceased.
An objection not heretofore made to the charge is presented by counsel for defendant on this motion. It is to that portion of the explanation of express malice -which states that a sedate and deliberate mind and formed, design is evidenced by external circumstances discovering that inward intention, as lying in wait, etc. The objection made is, in effect, that this portion of the charge is upon the weight of evidence, and virtually tells-the jury that express malice is proved when any of the conditions enumer
It is again urged on this motion that there was error in the admission of the testimony of the witness Barbee touching the declarations to him of the witness Judy James. A majority of the court still entertain the opinion that this testimony was, under the circumstances, properly admitted. Barbee was asked by defendant’s counsel if he did not say to Judy Janies that her husband’s neck was in danger if she did not tell what she knew about the murder? Barbee answered that he told her something to that effect. Counsel for the State thereupon asked Barbee to state what Judy James said to him in reply to what he had told her, and over the objection of defendant that her reply would be hearsay evidence, the court permitted Barbee to testify to the effect that she said in reply that she was afraid to tell what she knew about the murder, in the crowd, because Mr. Gallaher was one of the men; that she heard the shots in the prairie at the time of the murder, etc. This testimony was held admissible by the trial judge upon the ground that it was drawn out by defendant’s counsel on cross-examination of the witness Barbee on the same subject. It is a provision of our statute that when part of a conversation is given in evidence by one party, the whole on the same subject may be inquired into by the other party. Code Grim. Proc., art. 751. There was a conversation between the witness Barbee and the witness Judy James upon the subject of the murder, and the knowledge of facts possessed by Judy James relating to the murder. Counsel for defendant in cross-examining Barbee put in evidence a part of that conversation—that is, what he said to Judy James. The purpose of this was to affect the credibility of Judy James’s testimony. It could subserve no other purpose. A part of the conversation having been put in evidence by the defendant, the State was entitled to have the whole thereof upon the same subject put in evidence. Judy James’s reply to what Barbee had said to her was a part of the same conversation, and was upon the same subject, that is the murder, and her knowledge of it; and further, her reply explained her reason for not sooner divulging the facts of the transaction within her knowledge. A majority of the court entertain no doubt of the admissibility of said testimony. In this connection we will say further, that this testimony having been drawn out by the defendant with the purpose of impeaching the credibility of the witness Judy James, it was not material error to omit an instruction to the jury as to the purpose of said testimony, directing that it could be considered for that purpose only. The charge was not excepted to because of such omission, nor was an instruction upon this point requested. If the admission of said testi
With regard to the proposed testimony of the witness Peareson, a majority of the court still hold that the trial judge did not err in his rulings. Said witness was permitted to testify to the facts connected with the land litigation between defendant and deceased in so far as said facts were pertinent and competent evidence. It was not competent for any purpose, we think, to prove by said witness the advice he gave as an attorney to the defendant in relation to the said litigation, or the defendant’s opinion of his legal rights in said litigation, or the advice given by the judge and others to the deceased to accept a compromise offered her by Gallaher, etc. It seems to us that all the matters sought to be elicited by the questions which the court would not permit to be answered are incompetent as evidence for any purpose. They consist of the defendant’s acts and opinions prior to the murder; of the opinion and advice of his counsel, and of the acts, opinions, and advice of others with reference to the land litigation. It is contended by counsel for defendant that this testimony was admissible as tending to show an absence of motive on the part of the defendant to commit the murder. We do not deny that it was the right of defendant to prove any fact or circumstance which would tend to show absence of motive on his part, but such proof must be made by legal, competent evidence. Acts and declarations of the defendant not being part of the res gestee are not competent evidence in his behalf. Nor can we see upon what principle the opinions and advice of his counsel in the land suit could be held admissible evidence in his behalf. Suppose his attorney had advised him that he would certainly be defeated in the suit and would lose the land, would such testimony be admissible in behalf of the State? Certainly not. Then why should it be admitted in his behalf? We know of no rule or precedent which would admit such testimony. As to the advice given to the deceased to accept the compromise offered her by the defendant, and her refusal to accept such offer, that was matter wholly irrelevant, and if it could have any effect whatever, that effect would be prejudicial to the defendant, because it would show cause for malice against her on the part of the defendant.
It is insisted by counsel for defendant that the conviction should be set aside upon their twenty-fourth assignment of error, which is as follows:
“Because the court erred in permitting, to the prejudice of defendant’s rights, the counsel for the State while re-examining the witness Judy James, to cause the defendant James Gallaher to stand tip before the jury and put on his head a broad brimmed hat, and put over his face a handkerchief, and then thus exhibiting the defendant before the jury to ask Judy James if that was the way Gallaher looked at the time she saw him on the night of the murder, and in permitting Judy James to testify ^that was exactly the way he looked,’ thus permitting and requiring the
This matter was not discussed in the former opinions delivered in this case, for the reason that we did not consider that it was presented properly—that is, by bill of exception. We are still of the opinion that under the practice in this State, the matter is of that .character which should be presented by bill of exception. We will, however, in deference to the •earnest insistance of counsel for the defendant, give our views upon the question. We do not understand that the defendant was “ compelled to give evidence against himself.” He was not required by the court to submit to the disguise and exhibition of himself before the jury. There was no compulsion used against him. He made no objection whatever to the disguise and exhibition of which he now complains. For aught that appears he not only consented to it, but may have been desirous of the test— willing to take the chances of it. He may have believed that the witness Judy Janies would fail to identify him when in such disguise, and so believing, may have been willing and anxious to have the test applied. How can it be said then that he was compelled to give evidence against himself? If he had objected to such test, and the court had required him to undergo it, a very different question would have been presented. Suppose counsel for the State had placed the defendant upon the witness ■stand, and had him sworn to give evidence in the case, and without objection on the part of the defendant, he proceeded to give evidence against himself, could he be heard to complain that he had been compelled to give •evidence against himself? We think not. £t was the privilege of the defendant to not give evidence against himself, but it was within his power, .and was his right to waive such privilege, and having done so, he can .not complain.
But it is contended that the mere proposal made by counsel for the State to make the test was error, which should reverse the judgment. There would be strength in this proposition if the defendant had interposed any objection to the proposal. He did not object, but acceded to the proposal, and voluntarily underwent the experiment, thus waiving, we think, his privilege, whatever that privilege may have been. We have found no authority and have been referred to none which holds that a defendant may not voluntarily give evidence against himself, or may not .accede to a proposal to give evidence against himself. If, in this case, the defendant had declined to be disguised and exhibited, the court would ■doubtless have protected him in his constitutional right to be exempted from giving evidence against himself. As the matter is presented to us, and as we understand it from the record, no error is made apparent of which defendant can complain.
As to the sufficiency of the evidence to sustain the conviction, we have heretofore expressed our conclusion, and a re-examination of the facts has
The motion for rehearing is overruled.
Dissenting Opinion
Dissenting.—I desire to add some observations to> what I have written upon two questions, as well as to notice some authorities.
And first as to the charge upon alibi. In support of my views of this, charge I cited no authorities in my original opinion, because I believed none were required. In that opinion I.stated that the charge was wrong because it is a question of probabilities. Is this a correct proposition?' If it is, then evidently the charge is incorrect and was calculated to injure the cause of appellant, because the evidence on alibi, if true, does; not show that it was impossible for the appellant to have been present, and this was urged by counsel for the State in argument before this court-at Galveston. But whether injurious or not, being excepted to at the time, we must reverse; and we have only alluded to the fact that counsel for the State urged that it was possible fol’ appellant to have been present in order to emphasize the error.
Let us return to the position above assumed: Must the proof show that the accused was not and could not have been present, or must it, under all the facts and circumstances in evidence, render it improbable; that is, so improbable as to raise a reasonable doubt of the truth of the State’s case? This last position must be sound, or alibi is a separate and distinct defense with the burden of its proof resting upon the accused. This is the rule in some States, but not in this. However, I do not desire to extend the discussion of this question, but to support my views, by the following authorities:
In Galloway v. The State, 29 Indiana, 447, the court say: “True, Diereis nothing in the averment to exclude the idea that he might have procured a conveyance after he separated from Galloway, but the time that, would necessarily be consumed in doing so would be such as to render it. improbable that he could have been at the robbery.” (Italics ours.) In
In Kaufman v. The State, 49 Indiana, 251, there being proof tending to establish alibi, the court gave the following charge: “ The defendant having introduced evidence for the purpose of establishing an alibi, or, in other words, to show that he was not guilty for reason that he was at a different place, if he failed to cover the whole time necessary when the crime may have been committed, then you would be warranted in paying no attention to such testimony.” ¡Now, if the charge in the case before us is correct, then it follows inevitably that the above charge was correct, for if the proof of alibi must tend to show that it was impossible for the accused to have been present at the place of the crime, the evidence of alibi, failing to cover the whole time, is irrelevant and should have been excluded. But what said the court to the charge in the Kaufman case? Riddle, J., says: “As a rule of law this instruction is erroneous. An alibi is a legitimate defense, and if the evidence touching it was sufficient to raise a reasonable doubt of appellant’s guilt in the minds of the jury, it should have been considered, although the alibi did not cover the whole time during which the crime was committed. Citing French v. The State, 12 Ind., 670; Adams v. The State, 42 Ind., 373; and Bines v. The State, 46 Ind., 311. Additional authorities could be cited, but I deem these sufficient to establish that the proposition is perfectly sound, to-wit, that in view of all the facts and circumstances in evidence, the proof of alibi must be such only as to render it so improbable that the accused was present as to raise a reasonable doubt of the truth of the State’s case.
But it is replied that the court instructed the jury that “if the evidence raises m your minds a reasonable doubt as to the presence of the defendant at the place where the deceased was killed, at the time of such killing, then you should acquit the defendant.” This is true. But by the first part of the instruction (the objectionable part) alibi is defined so as to render it unavailable to the defendant, unless the proof thereof makes it impossible for him to be present at the homicide; hence, as is so well said by counsel for appellant, a reasonable doubt as to presence predicated on this definition, is a reasonable doubt as to the character of presence defined—that is, the presence referred to and none other—a possible presence—the correlative of an impossibilty of presence.
Let us look at this subject in a practicable light. The jury are told, in effect, that unless the proof of alibi shows that appellant could not have been present, then such proof does not show an alibi. ¡Now, then, they are told that if they have a reasonable doubt of presence arising from evidence they should acquit. The jury take both paragraphs under consideration. They inquire first what must the proof show in support of this defense? Answer: That it was impossible for defendant to have been present. Does it do this? It does not. What shall we do with this
How, to do this I say would be impossible. Why? Because if alibi is an impossible presence and the proof fails to show this, it is not in the case. If the jury should find from the evidence that it was not impossible for defendant to have been present, the reasonable doubt as to this defense would not be involved, for there is no alibi in the case.
By this, it is confidently believed, it is demonstrated that the two clauses in the charge on alibi are in direct conflict, and this being so, we can not tell which governed the jury in their finding upon this so called defense of alibi. How then, what is the Avell settled rule of this court under such a state of the charge? If objected to at the time a reversal follows as of course. If not objected to, we look to the whole record and, injury probably resulting, the case is reversed. I will not stop to cite authority in support of these propositions, for this court has uniformly so held.
My brother Willson in his original opinion says of the charge on alibi: “It is almost a literal and is a substantial copy of the one approved by this court in Walker v. The State, 6 Texas Court of Appeals, 576. It has been approved by this court in numerous subsequent unreported cases.” In the Walker case there Avas no objection reserved to the charge. The objection to the charge was that it was not sufficiently full, failing to explain the full meaning and legal effect of a defense of that kind. Judge Winkler, speaking for the court, simply says: “The charge objected to comes up to the requirements of a charge on alibi as laid down in Booth's case, especially Avhen read in connection with what follows the paragraph complained of.” My objection to the charge is, not that it was too meager, but that it states an incorrect proposition. This objection was not urged, and hence Avas not considered by the court, nor was it presented in the Booth case. But let us concede for argument that after full discussion such a charge was held sound. While this might be persuasive, still, if incorrect, we should not be governed by it and so perpetuate the error. That it is not correct to my mind is evident. That in cases unreported we have affirmed judgments in which the record con
In the opinion on this motion my brother Willson says: " The charge (upon alibi) is not as unfavorable to the defendant as many authorities would justify,” citing authorities. This is an absolute fact, and an hundred cases, it may be, can be cited in support of its truth. I will give a case which fully supports him; a case well considered, the opinion being written by a profound judge. In The State v. Ward, 17 Atlantic Reporter, 483, Taft, J., speaking for the court, says: " Exceptions were reserved to the charge on the subject of alibi. The jury were told that if the proof of it did not outweigh the proof that he was at the place when the crime was committed it was not sufficient. In this statement there was no error.” Here we have a charge not so favorable to the defendant as the one in this case.
Again, we have this proposition: "It is a defense resting on extraneous facts not arising out of the res gestee, and the onus of proving it devolves upon the respondent who alleges it.” Is this law in this State? I think not. The judge proceeds: "The burden being upon him, some courts hold that the evidence must exclude the possibility of the prisoner having been at the scene of the crime so as to prove the alibi beyond a reasonable doubt; others, that it must preponderate or outweigh that for the State. The latter was the rule adopted in the court below, and we think correctly.” Here we have law very unfavorable for the defendant, but who will assert that such are principles and rules of law in this State?
Continuing the opinion, the judge says: " Had the above been all the charge upon alibi evidence, there would be just grounds of complaint.” What! Complain that the law has been correctly charged? This is strange, unless the correct law needs qualification or modification. How here we have the qualification: “For while the evidence might not have been sufficient to establish an alibi, it was not therefore to be discarded, laid out of the case and not considered by the jury, which has been the error in many of the American cases.” It is evident to a logical mind that this qualification is an absolute retraction and repudiation of the rule which requires the accused to establish his alibi by a preponderance of the testimony, which rule is approved by the court and held to be sound.
The opinion proceeds: "After this instruction it was the duty of the court to go further, and tell the jury that if the alibi was not so established, evidence of it was not to be excluded from the case, but that it should be considered with the other evidence; and if upon the whole, including that in relation to the alibi, there was a reasonable doubt of
In passing, I desire to say that when the burden is on the accused to prove a fact, the doctrine of reasonable doubt can not possibly apply in his favor, unless in every case proof of such fact, to create the doubt, preponderates in its favor, for if proof of less force will be permitted to create the doubt, the burden is not discharged by him, and hence is not on him. It would be a rare thing to find an opinion containing (on one question) more inconsistencies than this in the Ward case. I have referred to it simply for the purpose of supporting Judge Willson’s observation to the effect that authorities could be found much more unfavorable to the accused than the rule stated in this case. But they are not authority in this State.
I desire now to make some additional observations on the question presented by the fifteenth assignment of error, relating to the testimony of Barbee.
In response to questions propounded by counsel for defendant on cross-examination, the object of which questions being evidently to show the animus of the witness Barbee, and also to show an inducement or reason for Judy James’s testimony against the defendant, Barbee, over the objection of defendant, was permitted to state that Judy James stated to him that defendant was one of the men who took the deceased from her house, etc. As I have said in my original opinion, the statement of Judy -James was not admissible.
Judge Willson, in his original opinion, contends that the statement was n, part of a conversation between Barbee and Judy, and that it was drawn out by counsel for the defendant. The questions were not calculated nor intended to put in evidence this statement. Ho conversation was sought or elicited by the questions. What Barbee said and did to Judy was .sought and elicited, and nothing more. But it is contended that the statement of Judy was admissible under the statute (Code Crim. Proc., art. 751), which reads: “ When part of an act, declaration, or conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by the other, as when a letter is read all other letters on the same subject between the same parties may be given. And when a detailed act, declaration, conversation, or writing is given
How, if the defendant had given in evidence a part of the declarations and acts of Barbee, then the State would have been entitled (if it was not complete) to the whole of the act or declaration;. Or, if part of a conversation between Barbee and Judy James had been given in evidence, the State would have been entitled to all of the conversation. Or, if the declarations or acts of Barbee could not be understood without Judy’s replies, then they may have been admissible. If a detailed act, declaration, or conversation is given in evidence, any other act, declaration, or conversation which is necessary to make it fully understood is admissible. Barbee was perfectly understood. There is no contention on this point. Hence this provision does not apply. If Judy’s statement was admissible, it was admissible by virtue of the statute, and it was admissible whether she was a witness in the case or not, and whether she was living or dead at the time of the trial. I now propose to give an illustration which will demonstrate the fallacy of the position assumed to sustain the competency of this statement.
A is on trial for theft. B is introduced as a witness for A. He swears •to facts which, if true, and are believed by the jury, will defeat the prosecution. To show his animus and corruption the State asks him if he did not approach Mr. 0 and attempt to persuade him to swear to certain facts establishing an alibi? if he did not propose to give 0 $500 to swear, to these facts? B answers that he did, whereupon counsel for the defendant asks him what reply G made. B answers that 0 stated that he knew the time when the property was taken; that A was not the thief; that A was not at the place of the theft; that A was an honest man, and that the witnesses for the prosecution were perjured scoundrels, unworthy of belief, etc.
How, as before stated, if Judy James’s statement was competent evidence, it was so by virtue of the statute, and in fact could be used to prove the guilt of defendant because competent evidence. This being the case, the fact that she testified in the case has nothing whatever to •do with the question, for if indeed the appellant introduced the conversation, declaration, or acts of Judy, he is bound by them. But did he introduce them? Evidently he did not.
But take the case illustrated. Will it be contended that the statements of 0 could be used against the State as evidence of the facts there stated? By no means. The foregoing is all I desire to add to what I have already said upon this subject.
On the other branch of this question I desire to say that no case or •authority has been found authorizing the introduction of similar statements, if the statements were made after the disturbing influence was
I am still of the opinion that the judgment in this case should be reversed, and that the motion should be granted.
Motion overruled.
Judges all present, with Hurt, J., dissenting.