No. 1926. | Tex. Crim. App. | May 31, 1900
Lead Opinion
Appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of ten years.
Appellant objected to eliciting from certain State's witnesses a conversation between defendant and his wife which occurred at the time of the homicide. The question propounded by the district attorney was as follows: "What, if anything, did the wife of defendant say immediately after the firing of the shot?" And each of the State's witnesses in answer to said question stated that the wife of defendant said to defendant, "You have killed my darling boy;" and defendant replied to her by saying, "God damn your darling boy." Appellant objected to this testimony on the ground that it was a declaration by *82 defendant's wife drawn out by the State during the examination in chief of said witnesses concerning a matter which the defendant had not inquired about. Appellant also claimed it was incompetent, because the wife of defendant had not been put on the stand as a witness in his behalf, and that she could not be examined herself, and that her declarations were inadmissible as against her husband. The court overruled these objections on the ground that it was a part of the res gestae of the homicide, and, further, for the purpose of showing which boy defendant referred to when he replied, "God damn your darling boy." Appellant appears to apprehend that conversations of husband and wife heard by other persons are inadmissible on the ground that the same are in some manner privileged communications. Such is not our understanding. The declaration of defendant at the time of the shooting or immediately afterwards, to wit, "God damn your darling boy," was admissible as a part of the res gestae and as showing his animus, and what his wife said to elicit this was admissible for the purpose of a full understanding of his declaration.
Appellant also objected to the refusal of the court to permit him to prove by Tom Stevens that on a certain occasion he heard Jerry Wiggins, who had been used as a witness for the State, say that "if his [Jerry's] mother married that damned old son of a bitch Jennings [defendant in this case] he would kill him." Appellant insisted that this testimony was admissible for the purpose of contradicting the State's witness Jerry Wiggins, who swore on cross-examination (the predicate being laid) that he did not make such statement to Tom Stevens or in his presence. The court in excluding this testimony held that the witness Jerry Wiggins had admitted his animus and ill will against appellant, and that it was not competent to pursue the inquiry, and impeach the witness on an immaterial matter. Appellant, on the other hand, claimed "that this proof was admissible for the reason that the witness Jerry Wiggins had denied making the statement attributed to him, and proof that he did make it would go to his credibility, and tend to impeach him; that the predicate laid was twofold in object and purpose. If Jerry admitted the threat, it would go to the weight to be given to his testimony, because of his animus, and his denial would impeach his credibility." An examination of this witness' testimony shows that he frankly admitted he hated appellant; that he had always hated him, and would like to send him to the penitentiary. Now, while it is always admissible to show a witness' animus towards a defendant against whom he testified, yet it occurs to us that, the witness having admitted in full measure his hatred towards defendant, it would not constitute reversible error to refuse to permit the witness to be impeached about some declaration which he may have made that would merely show his animus.
Defendant testified on his own behalf, and the district attorney on cross-examination asked him how many wives he had had, and proved by him that he had had three wives; that the first one died, the second quit him, and the third obtained a divorce from him. The district *83
attorney further asked him why the second one quit him, and if the third one did not get a divorce from him on the ground that he had killed her son. This question was objected to by appellant, and the objection sustained by the court. Appellant objected to all this proceeding on the ground that the testimony was irrelevant and immaterial, and did not tend to prove any issue in the case; that appellant had not testified concerning said matters, and that it tended to hurt defendant, and prejudice the jury against him, as it involved an inquiry into the acts, conduct, and statements of persons who were at the time the wives of defendant, and was calculated to make the jury believe that the second wife quit him because of wrongs and injuries committed by him; and that the third wife obtained a divorce from him was easily understood by the jury as being equivalent to proof that her reason for doing so was that defendant in her belief was actuated by malice in killing her son. As explained by the court, the district attorney was not permitted to press his question, and show why his said second wife quit him, and his third wife got a divorce from him; but he was permitted to show that his second wife had quit him, and that his third wife had obtained a divorce from him. And in that connection it transpired before the jury that the State desired to prove that the third wife got a divorce from him on the ground that he had killed her son. But, even if this question had not been asked, the conclusion would have been almost irresistible that the cause of the divorce of his last wife was on account of said killing of her son. The jury had been apprised by the testimony that he was married to his last wife, who was the mother of deceased (deceased being his stepson), at the time of the homicide, and, inasmuch as appellant at the time of the trial was divorced from her, that it must be on account of the homicide, which would inevitably suggest to the jury the opinion of his wife, who otherwise could not testify against him, that in her view appellant had killed deceased without a cause. Furthermore, as to the second wife, as to whom he was compelled to testify that she quit him, the natural effect would be to suggest to the jury that there was something wrong in his conduct or she would not have quit him. None of this testimony had anything to do with this case. The quitting of his second wife and the divorce from his last wife were not admissible in the case, unless it was legitimate testimony to discredit or impeach him. We believe the extent to which the authorities go in this direction is that on cross-examination it can be shown by appellant, when he becomes a witness on his own behalf, that he has been accused of some crime or offense, either a felony or a misdemeanor, which imputes moral turpitude. Carroll v. State, 32 Tex.Crim. Rep.; Brittain v. State,
In the motion for new trial appellant took a number of exceptions to the charge of the court. Among others, he criticises the charge for failing to single out the acts of provocation on which the charge of provoking the difficulty was predicated. We have examined said charge and it is an admirable presentation of the law of self-defense; and in that connection, but as a distinct clause thereof, the court gave a charge on provoking the difficulty. He not only instructed the jury in this respect with reference to provoking a difficulty for the purpose of killing deceased, but also gave a charge on provoking the difficulty without such purpose; and in that connection further told the jury that appellant had the right to go into the lot on a peaceful mission, and get the box, and if he did so without intending to provoke an attack or bring on a difficulty with Wiggins his right of self-defense was complete. An inspection of the charge will show that it is admirably drawn, and the whole trial, as far as we are able to discover, was conducted with that painstaking and patient care by the learned judge who tried the case (who has since deceased) which was so characteristic of him throughout his long and distinguished services on the bench; and, with the exception of the error pointed out as to the admission of the testimony, the case was remarkably well tried. For that error the judgment is reversed and the cause remanded.
Reversed and remanded.
Dissenting Opinion
The error upon which this case is reversed is clearly harmless, in the light of this record. I therefore dissent.