No. 6212 | Tex. App. | Jun 1, 1889
Without discussing at length any of the supposed errors of omission or commission urged in the oral argument .and brief of counsel for appellant to the charge of the court, suffice it to say that in our opinion the charge was a most able enunciation of the law of the case. The case was not one of circumstantial evidence. Appellant confessed and never denied that he himself, and he alone, killed Akeridge, and there was no controversy at all as to that fact. A charge upon circumstantial evidence is not demanded in such a state of case. Eckert v. The State, 9 Texas Ct. App., 105.
The defendant introduced his wife Hattie A. Johnson as a witness in his behalf. On her direct examination she was asked no question about any ;gun or pistol, but was examined about threats made by deceased to her, and about the difficulty on the 19th of June prior to the homicide, and about the defendant’s whereabouts on the day of the homicide. On cross-examination she was asked by the State’s counsel questions about a certain gun and pistol with which defendant is said to have perpetrated the homicide. Defendant objected and took a bill of exceptions. She then testified, over defendant’s objections, that defendant took a gun to the field with him; that she did not see him carry the gun, but saw him bring back the gun and a pistol after the homicide, and that she examined the pistol and found two chambers empty. Ho other witness testified about seeing any pistol or about the two empty chambers of the pistol. John Perry testified that defendant told him a year after the killing that he shot deceased twice with a pistol, and that defendant’s wife and Henry Bratton were present when defendant made that statement. After defendant’s wife had been cross-examined she was re-examined about the declarations of her husband to John Perry, and she then said she was present when defendant gave an account of the killing to John Perry, and that her husband said nothing about shooting deceased with a pistol. But witness never testified on either her direct or re-examination anything about her husband carrying a gun or a pistol to the field on the evening of the homicide, or about bringing back a gun or a pistol after the homicide, or about two chambers of the pistol being empty. Among the qualifications to this bill of exceptions by the court was this: “In my opinion when defendant puts his wife on the stand as a witness in his behalf upon any fact connected with the homicide, the State may legitimately draw out of her any fact she may know connected therewith, unfavorable to his defense, or favorable to the prosecution.”
Hnder our statute “the husband and wife may in all criminal actions be witnesses for each other, but they shall in no case testify against each other except in a criminal prosecution for an offense by one against the other.” Code Crim. Proc., art. 735. In construing this statute with reference to the extent to ivhich the right of cross-examination may be carried by the State where one spouse has been called to testify for the
Defendant’s second bill of exceptions was saved to the refusal of the court to permit him to introduce in evidence the indictment which had been presented against the deceased, Akeridge, charging him with an aggravated assault and battery upon defendant on the night of June 19, 1886, which indictment was returned into court in July, 1886, about a month before the killing. Both the character of defendant as a peaceable and law abiding man and that of deceased as a violent and dangerous man had been put in issue. Defendant proposed to avail himself of the indictment as a circumstance going to establish both these issues. As to his own character, because it showed that when assaulted by deceased he had appealed and resorted to the law for protection; and as to the character of deceased, it having been already proved by some of his witnesses that deceased had made violent threats against his, defendant’s, life, that he had attacked defendant’s house in the night time, that he had threatened to cut the throat of defendant’s wife if she testified against him, and that he had offered to pay one of said witnesses $750 if he would kill defendant, the said rejected evidence would tend most strongly to show an additional motive and reason for hostility and violence upon the part of deceased towards defendant.
In his confession, or rather admission, of the fact that he had killed deceased, defendant stated that deceased had made demonstrations as though about to draw a weapon at the time he, defendant, fired upon him. In other words, that he was in serious apprehension of death or serious bodily injury at the time he did the shooting. “ The issue being, had the defendant reasonable grounds for fearing death or serious bodily harm ?’ to decide this question correctly, the exact relations of the parties to one another, their feelings towards each other, and their motives should be known to the jury. These being understood, an act, gesture, or word which was spoken or done at the homicide is viewed and weighed in the light of these remote relevant facts as well as the immediate facts.” Russell v. The State, 11 Texas Ct. App., 288.
Defendant proved that deceased was a malicious and dangerous man. The State introduced evidence to the contrary, and hence a conflict. Dpon such an issue the indictment against defendant for aggravated assault and battery was competent and admissible evidence. Brunet v.
For the errors we have pointed out and discussed the judgment is reversed and cause remanded.
Reversed and remanded.
Judges all present and concurring.