A challenge was made to the array of grand jurors who presented the bill of indictment in this cause, because the record failed to show that they had been drawn and selected by jury commissioners duly and legally appointed at a previous term of the court, in conformity with the provisions of the statute. (Code Crim. Proc., Arts. 352 to 361 inclusive.) On a demurrer to this challenge filed by the district attorney, the court, over objection of defendant, heard testimony establishing that in fact the commissioners were selected and qualified as required by law, and that the failure of the record or minutes to show it was from in^dvertance or omission of the clerk to make the proper entry ; and the minutes were corrected so as to show1 the fact—the demurrer being also sustained to the challenge.
We are of opinion the court did not err in sustaining the demurrer. Only two causes of challenge to the array of the grand jury are permitted under our statute (Code Crim. Proc., Art. 380), and the ground upon which the challenge was'here made does not come within either of the two named. Independent of these two grounds there is no mode known to our law by which, after its organization is completed, the array of the grand jurors can be attacked and impeached. And this has been the established rule of practice in Texas since the adoption of our Codes. (Reed v. The State, 1 Texas Ct. App., 1, and authorities cited.)
It is now expressly provided by statute that “any person, before the grand jury have been impaneled, may challenge the array of jurors or any person presented as a grand juror, and in
In Kemp’s case, 11 Texas Court of Appeals, 174, the question is thoroughly discussed and settled, since the adoption of the Article last quoted, and it was there held that “the right to impeach the qualifications or the legality of a grand jury is limited to the time prescribed, and confined to the causes specified; and a prisoner who has omitted to request that he be brought into court to make the challenge, cannot impeach the grand jury by pleading in abatement-of the indictment preferred against him.” The same rule obtains in Mississippi. (Logan v. The State,
A motion was made by defendant to postpone the trial because he had not been served with a. true copy of the indictment, in this, to wit, that the copy served upon him did not have indorsed upon it the names of the witnesses indorsed upon the original. It is contended that, inasmuch as it is required that “the attorney representing the State shall indorse upon the indictment the names of the witnesses upon whose testimony the same was found” (Code Crim. Proc., Art. 413), this indorsement becomes as much a part and parcel of the indictment as any other portion, and that the certified copy required by law to be served upon him (Code Crim. Proc., Arts. 504, 505) must embrace it, or the service upon the defendant is defective and insufficient. We are cited to numerous authorities outside our State in support of the position.
Whatever may be the rule, or reason of the rule, in other .States, the question has long been a settled one in Texas. In the early case of Steele v. The State, 1 Texas Reports, 142, it was held that the statute requiring such an indorsement upon the back of an indictment was merely directory, and that such indorsement is not a constituent part of the indictment or of the finding of the grand jury, and is not essential to its validity. In the case of Skipworth and Bowles v. The State, 8 Texas Court of Appeals, 135, it is said: “ While the statute prescribes that the names of the witnesses upon whose testimony the indictment is found shall be indorsed on the indictment (Code Crim. Proc., Art. 413), yet no mode is designated by which a failure to do so can be reached, and in the absence of further legislation the omission must be held as immaterial. No exception either
Even in States where it is made essential to the validity of the indictment that the names of the witnesses who testified before the grand jury shall be indorsed thereon, the rule has never, so far as .we are aware, been held to preclude the prosecution from introducing in support of the accusation other witnesses whose names are not so indorsed. (State v. Fowler, 52 Iowa; S. C., 2 Crim. Law Mag., 45; Lawrence v. Comm.,
We know of no rule which would authorize a defendant to de^ mand a postposement of the trial of his case until he could be served with a copy of the names of the witnesses indorsed upon the indictment. Doubtless it would be the better practice for the clerk, in making out the certified copy of the in dictment, to copy all the indorsements upon it; but we know of no statute or provision of law requiring that the certified copy shall contain such indorsements. In this instance it is not contended that the original was not so indorsed, or that defendant was precluded or denied the right of examining the names of the witnesses upon it.
The challenge to the array of the petit jurors, based upon the same ground as was the challenge to the grand jury, viz., that the jury commissioners which selected them were not properly appointed and qualified, was rightly overruled, the evidence showing, as before stated, that their appointment and qualification were in full compliance with law, and that the clerk had simply failed to make the appropriate record entry of the fact.
On the trial, many objections were urged to the introduction in evidence by the State of the written testimony of Doctor Skinner, the deceased, taken at the examining trial of defendant just after the shooting, and upon a charge of assault with intent to murder Skinner. A day or so after the shooting, de
It was a primary objection to the testimony that the offense for which defendant was on trial in this case was not the same as the one for which he was on trial when Skinner gave the testimony produced, and that therefore it was inadmissible in this "case. This position is untenable. It is a rule growing out of necessity, but now well established, “that, if there has been a prior proceeding involving the same issue, between the same parties, conducted regularly in pursuance of law, and therein the defendant had the opportunity to cross-examine the witnesses against him, then, if a witness has died, what he testified at the former hearing may be shown in evidence against the defendant in the present one. In che circumstances thus explained, the testimony of the witness at a former trial of the same cause, or another cause presenting the same issue, between the same parties, may be shown in evidence.” (1 Bish. Crim. Proc., secs. 1195, 1196, and notes.
Under our Code, “the deposition of a witness taken before an examining court or a jury of inquest, and reduced to writing and certified according to law, in cases where the defendant was present when such testimony was taken, and had the privilege afforded him of cross-examining the witness, may be read in evidence, if oath be made that since his deposition was taken the witness has died.” (Code Crim. Proc., Arts. 772-774.)
In England, testimpny before the examining magistrate on a charge of felonious wounding was deemed admissible on the trial for murder, where the injured person had died of the wound.
But again, it is said the testimony was inadmissible because taken without any authority of law by the officer taking it, he being a justice of the peace for precinct No. 1, the testimony being taken in precinct No. 3, and that, too, when there was a duly qualified and competent justice, fully authorized to act in all matters calling for the exercise of the functions of his office, in the latter precinct.
After providing generally for the jurisdiction of justices, the Constitution declares that they may have “such other jurisdiction, criminal and civil, as may be provided by law, under Such regulations as may be prescribed by law.” (Canst., Art. 5, sec. 19.) In prescribing their powers and jurisdiction, Article 1543, Revised Statutes, provides that “they shall also have and exercise jurisdiction over all other matters not herein before enumerated that are or may be cognizable before a justice of the peace under any law of this State. ” With regard to the final trial of causes coming within his jurisdiction, whether civil or criminal, the statute evidently contemplates that the action and jurisdiction of the justice’s court shall be limited by and to his precinct, unless otherwise expressly authorized by the law in certain exceptional cases. But he is furthermore a “magistrate,” made so by terms of the statute equally with judges of the Supreme Court, Court of Appeals, district and county judges (Code Crim. Proc., Art. 42), and “when a magistrate sits for the purpose of inquiring into a criminabaccusation against any person, this is called an 1 examining court. ’ ” (Code Crim. Proc., Art. 63.) At such time he is a “ magistrate” and not a “justice of the peace,” and his court is an “examining” and not a “justice’s court.” A warrant of arrest may be issued by a magistrate (Code Crim. Proc., Art. 232), and when issued by a judge of the Supreme Court, Court of Appeals, District or County Court, shall extend to every part of the State (Code Crim. Proc., Art. 237); but, when issued by any other magistrate it cannot be executed in any other county, except in certain instances mentioned. (Code Crim. Proc., Art. 238.) It may, however, be issued to and executed anywhere in his county outside of as well as in his own precinct. When sitting as an “ examining court,” the law nowhere limits the magistrate, if he be a justice, to his particular precinct; and, not being limited in this regard, there is no
Without discussing seriatim, the many questions raised as to this testimony, we deem it necessary to say, that in our opinion the predicate for its introduction was fully laid, the testimony properly and sufficiently taken and certified in obedience to the statute (Code Grim. Proc., Art. 267), and that the court did not err in permitting it to be read as evidence in the case.
Nor did the court err in the rulings shown by the fifth bill of exceptions. Defendant proposed to prove by his witness Mark Short that “ when he, witness, first got to Captain B. A. Van Sickle’s the night Skinner was shot, he, Short, asked where Sam. was, and that Captain Van Sickle said he was out in the yard with Mart. Hart, feeding their horses. ” The proposed testimony was res inter alios acta, was irrevelant and inadmissible.
An indictment against defendant Hart for assault with intent to murder Skinner on the sixth day of December, 1880, about two years before the killing, and which indictment was still pending, was read in evidence by the prosecution, over objection of del endant. As stated by the court in' allowing the bill of exceptions reserved to its introduction, it was admitted to show motive for the killing on the part of defendant. For such purpose it was perfectly legitimate. “ Whenever the motive or intent of a party forms part of the matter in issue upon the pleadings, evidence may be given of other acts not in issue, provided they tend to establish the intent of the party in doing the acts in question. (Roscoe’s Crim. Evid., 3 ed., 99.) The reason for this rule is obvious. The only mode of showing a present intent is often to be found in proof of a like intent previously entertained. The existence in the mind of a deliberate design to do a certain act, when once proved, may properly lead to the inference that the intent once harbored continued and was carried into effect by acts long subsequent to the origin of the motive by which they are prompted.” (1 G-reenlf. Evid., 13 ed., sec. 53 and note 3). The prosecution has the right to offer any evidence tending to prove a motive for the commission of crime. (State v. Larkin,
As shown by the seventh bill of exceptions, the State was per
In a recent case in England, not at present accessible, the defendant was on trial for selling grain by a false measure. To solve the question of his guilt the court had the supposed false measure and a standard measure brought before the jury, and the grain actually measured from the one into the other in the presence of the jury. Will any one pretend to say that this was not the best and most satisfactory evidence to the minds of the jury which could possibly be adduced of the fact in issue before them? And could not the fact be sufficiently stated in the record so as to apprise this court fully of the nature and character of the evidence and mode of proof upon which the verdict was founded? Clearly so, we think.
In a recent case in Georgia it was held that a pistol used in the commission of a homicide could be and was properly submitted to the jury for inspection. (Wynne v. The State, 56 Ga., 113.)
Mr. Wharton, in his work on Homicide, says: “ Dress, independently of the questions to be hereafter noticed, adds often an important element of indicatory proof. Thus, in a case cited by Taylor there were two cuts in a shirt produced in evidence.
But the identical question before us came up in the case of King v. The State, 13 Texas Court of Appeals. 277, and it was said: “Upon the trial of this case the State, over defendant's objection, was permitted to introduce and exhibit to the jury a coat and pair of pants which were proved to have been on the person of deceased at the time he was shot. Testimony of this character is often times pertinent, material and admissible. (Hubby v. The State, 8 Texas Ct. App., 597; Early v. The State, 9 Texas Ct. App., 485.)” See also White & Willson’s Texas Digest, section 1307.
In the light of these authorities the clothing and buggy rug of Skinner would have been perfectly legitimate and admissible as evidence before the jury, though they could not have been incorporated into the record, and though it might have been impossible for us to know here, beyond their verdict, to what extent they influenced or affected the jury. If legitimate and competent evidence, the State had the right to introduce them, no matter how the jury might be affected by them.
With regard to the exceptions touching the testimony of the witness Mason, it appears that, whatever may have been his intentions as to arresting defendant, he had not done so, and defendant was not apprised of his intention to do so at the time the conversation transpired about which he testified. It is not made to appear, therefore, that the evidence comes within the rule prescribed by the statute relative to confessions or admissions made under arrest. As to the competency and admissi
Special exception is taken to the first paragraph of the charge of the court, which is as follows: “The jury are charged that homicide is the destruction of the life of one human being by the act, agency, procurement, or culpable omission of another. The destruction of life must be complete by such act or agency. But; although the injury which caused death might not under other circumstances have proved fatal, yet, if such injury be the cause of death, without its appearing that there has been any great neglect or manifest improper treatment by some other person, such as a physician, nurse or other attendant, it would be homicide; and if the jury are satisfied from the evidence that some one shot the deceased, and inflicted upon him a wound which was not in itself necessarily mortal, and that the wound inflicted produced blood poisoning or any other effect which would result in the death of the deceased, the party inflicting the injury would be as guilty as if the wound was one which would of itself inevitably lead to death.” This instruction is in substantial, if not literal, harmony with the statute upon the subject. (Penal Code, Arts. 546, 547, 548.) But it is asked in the brief of counsel: “Under this statement, can the court say that when the wound produces the cause, which cause produces death, that the party inflicting it is guilty of homicide?” A full and complete answer to the interrogatory may be found in the language used by this court when discussing a similar question in the ease of Williams v. The State, 2 Texas Court of Appeals, 282, where it was said: “The general rule, both of law and reason, independent of the articles of the Code, is, that whenever a wound is inflicted under circumstances which render the party inflicting it criminally responsible, if death follows, the person inflicting the wound will be held responsible for the homicide, though the person wounded would have died from other causes, or
Holding, as we have done, and as held by the lower court, that the testimony of Skinner, the deceased, taken at the examining trial, was properly admitted in evidence, then the case was not one of circumstantial evidence, and the court was not required to charge the law applicable to that character of testimony; and the charge is not, therefore, obnoxious to objection urged in that regard. There are no' other complaints made to the charge, calling for discussion. In our opinion, it fully and fairly presented the law applicable to the facts of the case.
Six bills of exception, from the eighth to the thirteenth, inclusive, relate to the rulings of the court with respect to the admission and exclusion of testimony proposed by defendant for the purpose of impeaching the State’s witness, Perry Houle. It appears that this witness. Houk, sometime before Skinner’s death, had been indicted for theft of property belonging to Skinner, and was being prosecuted by Skinner for the theft. His testimony in behalf of the State, in substance, was that in returning from court, where both he and defendant had been in attendance to answer the respective indictments against them, the one for assault to murder Skinner, and the other for theft of Skinner’s property, defendant had offered to hire him (the witness) to kill Skinner. He further testified that, on the night after defendant Hart was released on bond at the examining trial for the second assault with intent to murder Skinner, he had met defendant and defendant had told him to keep his mouth shut.
(hi cross-examination, after laying the proper predicates as to time, place and persons, the defendant’s counsel asked the wit
2. “You say you were afraid of Hart’s friends, and you say you never told Bud Lawson that the things it was reported you would swear were not true; now tell to whom you told these different tales on account of fear.”
3. The impeaching witness, Schrympsher, was asked: “Did not Perry Houk tell you, at the time about which you have testified, that the reason he had been telling these different tales was that he had heard Hart’s friends were trying to saddle the killing on him, and if they wanted.to swear lies, he could swear and would swear as many as they could?”
4. The witness Houk was asked if he did not, “in a conversation with one Lawson, tell Lawson that Skinner had sworn a pack of dam lies on you (witness) and that he should never do it again; and did you not to Lawson, then and there, and at other times, threaten to kill Skinner if you got a chance?”
5. After the witness Houk. on cross-examination, had stated that he had told many different statements about what his testimony would be in this case, the State, on re-examination, asked, what caused you to make such statements ? To which defendant objected, and the witness was permitted to answer, “it was because I was afraid of the parties who are friends of Hart. ”
The answers to the first four questions were excluded on objections by the State, and the answer to the fifth was objected to by defendant.
“It-is a general rule that a witness cannot be cross-examined as to any fact which, if admitted, would be collateral and wholly irrelevant to the matters in issue, for the purpose of contradicting him by other evidence, and in this manner to discredit his testimony. And if the witness answers such irrelevant question before it is disallowed or withdrawn, evidence cannot afterwards be admitted to contradict his testimony on the collateral matter.” (2 Phil, on Evid., 3 ed., p. 398.) His answer cannot be contradicted as to the collateral or irrelevant matter by the party who asked the question, but it is conclusive against him. (1 Greenlf. Evid., 13 ed., sec. 449 and notes; Henderson v. The State, 1 Texas
Mr. Wharton says: “A witness called by the opposing party can be discredited by proving that on a former occasion he made a statement inconsistent with his statement on trial, provided such statement be material to the issue. * * * The statement which it is intended to contradict must involve facts in evidence.” (Whart. Crim. Evid.. 8 ed.. 482.) He further says: “When a witness is cross-examined on a matter collateral to the issue, his answer cannot be subsequently contradicted 'by the party putting the question. The test of whether a fact inquired of on cross-examination is collateral is this, would the cross-examining party be entitled to prove it as part of his own case, tending to establish his plea?” (Sec. 484.) “The reason of the above rules is obvious. If not thus restricted, the investigation might thus branch out into any number of immaterial issues upon the mere question of credibility of witnesses.” (Hildebrum v. Curran, 65 Pa. St. 59.)
In the application of the rules the difficulty, however, has been in determining when and under what circumstances collateral and to some extent matters seemingly irrelevant would tend to support a defendant’s plea, and throw light upon the issue involved. It is the tendency of modern decision, in behalf of innocence and right, to relax some of the restrictions which have grown out of the rules, because they have been found harsh, unreasonable and unjust. For instance, the rule that “a third party had malice toward the deceased, a motive to take his life, and the opportunity to do so, and had threatened to do so,” was not admissible as evidence in behalf of one accused of the murder—a rule so long established and by such a weight of authority as to be invariable (Boothe v. The State, 4 Texas Ct. App., 217) is not the rule as it now obtains in Texas, and especially where that third party was a prosecuting witness who was shown to have been at enmity with the deceased, had threatened his life, had carried weapons for him, and who at the time of the homicide, by his proximity to the place of crime, might himself have committed the deed. (Dubose v. The State, 10 Texas Ct. App., 230.)
But there is another distinction, and it is a controlling one with regard to the admissibility of evidence to impeach a witness a.s to matters not germane to the main issue'—it is in fact an exception to the general rule that contradictory statements cannot be
A leading case upon the subject is The State v. Patterson, 2 Iredell (N. C.). 346. Gaston. Judge, says: "‘With respect to the collateral parts of the witness’s evidence, drawn out by cross-examination. the practice has been to regard the answers of the witness as conclusive, and the party so cross-examining shall not be permitted to con radict him. Of late, however, it has been understood that this rule does not apply in all its rigor where the cross-examination is as to matters which, although collateral, tend to show the temper, disposition or conduct of the witness in relation to the cause or the parties.” (See also 1 Greenlf. Evid., sec. 450.)
Now in the case before us, if the witness had a motive to kill Skinner, and had threatened to kill him, and he believed that on account of these threats Hart’s friends were endeavoring to saddle the murder upon him, and thereby relieve Hart; and he believed further that the struggle as to who had committed the deed would be between himself and Hart, it would certainly furnish a strong motive on his part to try and secure Hart’s conviction; and the extent and character of that motive towa’rds Hart was legitimate and admissible to be considered by the jury in estimating his credibility, in the light of the circumstances engendering the motive. We are of opinion the court committed an error in excluding this evidence.
It was not error to refuse to permit the witness to name the friends of Hart of whom he was afraid, and.to whom he had told these different tales. That fact would neither have thrown
We believe we have now discussed all the questions presented in this voluminous record, and so ably submitted in the argument and brief of counsel, which demand discussion on this appeal.
Because the court erred in the exclusion of the evidence as indicated above, the judgment must be reversed and the cause remanded.
Reversed and remanded.