210 S.W. 959 | Tex. Crim. App. | 1919
Lead Opinion
In this case the appellant was charged by indictment in the District Court of Hopkins County with the offense of murder, which, upon trial, was by the jury reduced to manslaughter, of which she was convicted and her punishment fixed at confinement in the penitentiary for five years.
Appellant took thirty-five bills of exceptions during the course of the trial, a number of which do not appear in the record by written and filed agreement by counsel. We shall notice all those which we deem of sufficient importance.
By her bill of exceptions No. 2 appellant seeks a review of the trial court's action in permitting the witness Easley, for the State, to tell what the sister of the appellant, Miss Allie Lee Mauney, said the evening before the killing, the objection being that it was the act and statement of another party not shown to be ratified by the appellant, but disaffirmed by her. We see no error in the ruling as the same appears in the record. The witness Easley testified that appellant had 'phoned him to come to where she and her sister were on the second day before the killing but that he told her he could not come until the next day, and accordingly he met the two women on the evening before the killing. Appellant then told Easley at length of the acts, statements and conduct of deceased in watching and following the witness' car and appellant's car and having others to watch and follow them. During the conversation Allie Lee Mauney spoke up and said *189 that he had been following her (which her is not very clear), and stated that "if he did not cut it out — she would shoot his G__D — off." It appears that appellant then said never mind, that was her affair and she would see to it herself.
Reference to the statement of facts for the surroundings discloses that witness had told "them" that he would not do anything with it and that Miss Maude (appellant) said that she would attend to it herself, directly after the statement by Allie Lee which is here objected to. This was about sundown before the killing the next morning. The statements of Allie Lee so made are admissible to explain and make clear what appellant meant when she made the threatening statements attributed to her. It seems clear that if one person threaten to shoot another and the accused being present and hearing the threat, says, "Never mind, that is my affair and I will see to it," and very soon thereafter herself shoots such party that both her statement and that of the other person, explanatory and antecedent to hers will be admissible.
Appellant's bill No. 7 cannot be considered for several reasons. It consists of about ten questions and their answers, followed by the statement that said evidence at the time it was offered was objected to because it was irrelevant, immaterial, incompetent and prejudicial. No surrounding facts are stated; and no reason given why the same falls under any of these general heads of objection. This court holds that "incompetent and irrelevant" is without meaning and indefinite. Pangburn v. State, 56 S.W. Rep., 72; also that "irrelevant and prejudicial," is too general to be considered, Wilson v. State,
Bill of exceptions No. 12 complains of the action of the trial court in permitting the prosecution to ask Allie Lee Mauney, the sister of appellant, if it was not a fact that she and her father and the appellant had no intention of pleading insanity until after the examining trial, after the best people of that county had come there and testified that the reputation of appellant and witness were bad for virtue and chastity, "and you thought your plea of insult to a female relative was broken down, then you decided to put in the insanity plea." To which the witness answered: "I knew it at the examining trial; I knew it just as soon as we employed our lawyer." The objection, as stated, to both question and answer, is that the same is argumentative, prejudicial, called for a conclusion of the attorney, invades the province of the jury. Neither the question nor answer invade the province of the jury, nor does the same call for a conclusion of the attorney, and to say *190 that the same is argumentative and prejudicial is merely a general and indefinite statement which presents nothing that we can consider.
Bill of exceptions No. 14 presents no error. Several different questions were asked and when objection was made the same were not pressed to answer, and the only questions permitted by the court to be answered were, whether the witness Jack Mauney was under the rule, to which he answered, he did not think so, and the further question if he was not present when the examining trial was had, to which witness answered that he was. This court has held many times that when the bill of exceptions only shows questions and omits the answers the matter will not be considered. Hatzfeld v. Walsh, 120 S.W. Rep., 525; Clark v. State, 67 Tex.Crim. Rep., 148 S.W. Rep., 801. The two questions which were answered as shown by this bill present no possible objection.
Bill of exceptions No. 15 states a number of questions and answers, with a general statement of the objection thereto but without any connecting statement of any fact or facts in the case.
The bill is entirely too general for consideration. Howard v. State, 65 Tex.Crim. Rep., 143 S.W. Rep., 178.
Bill of exceptions No. 18 sets out a page of questions and answers to the witness Dr. Holbrook, with the statement that the appellant objected to the question as propounded. We are wholly uninformed as to which question the objection is aimed at and find nothing of error in the bill.
Bill of exceptions No. 19 complains that in the hypothetical case stated by the prosecuting attorney to the appellant's witness, Dr. Holbrook, it was incorrectly stated to said witness that "immediately after she came back, after she had fired the fatal shot, she made the statement, as testified to by Allie Lee or Fred, that she had killed Will Bridges." To which statement by the prosecution objection was made that no such testimony was in the record, and that no witness had so testified. While this was very indefinite, we took the trouble to look through the testimony of Fred Mauney, as set out in the statement of facts and observe that on page 96 thereof said witness stated "She came back and gave me the gun . . . She called up the sheriff and just said to the sheriff that she had killed Will Bridges." It thus appears that the hypothetical question was correct and no error is shown.
Bill of exceptions No. 20 complains that the State's attorney was permitted to "take the witness from defendant's counsel." Examination of the same disclosse that the court allowed the prosecuting attorney to make the preliminary test of the witness who was offered on the question of the general reputation of the deceased. No abuse of the court's discretion in such matters is shown.
Bill of exceptions No. 21 quotes at length from a hypothetical *191 case stated by Dr. Gregory, and after finishing the quotation from the question, states that counsel objected to the same because "it did not conform to the statutes of Texas, nor to the rules of the courts." No statute or rule is pointed out to us as having been violated. The bill is wholly insufficient.
Bill of exceptions No. 22 objects to the testimony of Luther Romine, the objection, as stated, being that the "proper predicate had not been laid." This is not a statement of any fact showing why the evidence is objectionable and is not sufficient to call for our review. Douglas v. State,
No error appears in bill No. 26, and bill No. 27 consists of several pages of questions and answers and concludes with the statement that after this evidence had been introduced defendant's counsel moved the court to exclude all the testimony of the witness as to what was said by the defendant at the time and from the time of the arrival of the officers because she was in the custody of the law and had not been warned, etc. A bill of exceptions setting out numerous question and answers with a general objection to the whole, or a general motion not specific in its statement, such as this here, do not conform to the requisites and should not be considered. Boyd v. State,
Bills of exceptions Nos. 28 and 29 complain of the argument of the special prosecutor. Language such as used by him in his statement that "if the jury, under the evidence in this case, cannot convict the defendant, they might as well tear down the courthouse," and further statement that if she was convicted they would have the right to go to the Governor and ask him to exercise his pardoning power, is not such as to demand a reversal of the case under the authorities. No written charge was presented by the appellant asking that the jury be instructed not to consider same. The court did then and there verbally instruct the jury not to consider such statements of said prosecuting attorney. Hatchell v. State, 84 S.W. Rep., 234; Pemberton v. State, 55 Tex.Crim. Rep., 117 S.W. Rep., 837; Paschall v. State, 62 Tex.Crim. Rep., 138 S.W. Rep., 759.
Bill No. 31 raises the question of misconduct on the part of the jury, based on the fact that one juror, talked frequently with his wife during the trial of the case without the permission of the court, and in violation of article 748, C.C.P. The language of this article plainly forbids any one being with the jury while they are deliberating on a case and from communicating with a juror *192 after he has been impanelled except in the presence and by permission of the court, in a felony case; and the officers in charge of juries should be vigilant and careful to see that the provisions of this statute are carefully observed and that our trials are free from criticism and are conducted according to law. The trial court before passing upon this matter, heard evidence pro and con bearing on the matter set up in this bill and concluded that the matter did not constitute such error as to justify the granting of a new trial. The juror testified that his wife discussed with him only matters concerning the home and the farm and that she did not mention the case on trial in any way. She testified to the same facts. The sheriff also testified that he heard part of some of the conversations and that it was about the business at home. We feel that this statutory provision is a wise and just one and that the interests of both the State and the accused in a fair trial are so great as to demand of officers and jurors an observance of its requirements. Not only should the appearance of evil be avoided by strict observance of this statutory rule forbidding communications with the jury when the court is not present, but the further fact is true that human nature is frail and prone to excuse itself, and it is easily possible to conceive a case where the party conversing with a juror, as well as the juror himself, fearful of punishment for contempt, might not remember all that passed at such conversations and might deny mention of the case between them by virtue of a convenient memory. We think the rule in cases of a violation of the provisions of article 748, ought to be that injury in such case is presumed unless the contrary is made to appear to the satisfaction of the court; the trial court primarily, and ultimately this court. Any presumption can be overcome by evidence and in such case of presumptive injury the burden ought to be on the State to satisfy the court that no injury has resulted from such violation of the statute. In the instant case, we think the presumption of injury was met and overcome by the evidence showing what the conversations were, and that no fact bearing on the case was discussed between the juror and his wife. We observe, however, for the benefit of all parties that article 749, C.C.P., expressly embraces in a contempt proceeding, the juror and offending person who violates the sacred rights of both the State and the accused; certainly the trial court should strictly enforce these safeguarding statutes. Sheriffs and deputies who wilfully or negligently disregard them should be held to the same strict account as jurors and outside offenders.
Bills of exceptions Nos. 32 and 33 relate to supposed errors in the charge as to what facts would reduce an unlawful killing to manslaughter, but inasmuch as appellant was only convicted of this grade of homicide no error appears.
There was no error in refusing special charge on self-defense, *193 which was substantially the same as the special charge on that subject given at the request of appellant. We confess ourselves unable to find any facts in this record bearing out any theory of self-defense, even had the trial court refused both special charges asked on this subject.
Appellant complains of the verdict as being against the weight of the evidence on the defense of insanity, and asks a reversal for that reason. We do not think this court should reverse cases where the evidence is merely conflicting, and where the defense of insanity is interposed and the doctors placed on the stand by the accused make their statements that she was insane at the moment of the shooting, expressly and repeatedly dependent on the truth of what appellant swore as to her inability to remember the immediate facts of the killing, and further when the accused takes the stand and testifies in detail to all that occurred up to the moment of the shooting and what occurred after the shooting, and says that she is unable to remember only what occurred at the time of the same, and when other witnesses, whose testimony was apparently reliable, state that she is sane, we do not feel it proper to disturb the verdict.
We have gone through this record carefully and repeatedly, not content with a general statement as to a large number of the bills of exceptions that they were not sufficient to demand our review. Each has been carefully scrutinized and finding no reversible error the judgment of the lower court is affirmed.
Affirmed.
Addendum
Appellant has filed an exhaustive motion for rehearing, in which her counsel have reviewed at length this court's action upon the several contentions as presented in her bills of exception and passed upon by this court in its original hearing of the case. It is urged that we were in error in that opinion in declining to consider the bills of exception which were too general to call for a review of the matters presented, and we have again considered each of these matters in the light of this motion. First let us observe that it is well settled that a bill of exceptions must be complete within itself, that it must not only show therein what transpired, and what the objection thereto was, but such objection must be set out and enough facts also must be stated in the bill itself, to make the error complained of apparent, without the necessity of this court searching through the entire record to see if perchance there be not something that will sustain the theory of said objections, and hence such bills if it show the ground of the *194 objection made, was that the evidence was immaterial, irrelevant and prejudicial, will not be considered by us, unless it is made to appear from the bill itself why such evidence is not material and relevant and how such evidence is prejudicial. The reason and necessity for some such rule is too apparent to need discussion by us. Could it be expected that an appellate court should have to search through a record containing a hundred pages, as for instance in the instant case, where the statement of facts contains two hundred and forty-nine pages — in order to ascertain if there be any theory of the case upon which evidence might have some bearing, the only objection to which is that it is immaterial, irrelevant and prejudicial? Is it not perfectly manifest that the labors of this court would be interminable if such were the practice; and is it not clear it is the duty of the practitioner to put all those things in his bill and make his error apparent so that this court may therefrom decide the point raised?
Keeping this observation in mind, and as illustrative of the necessity for such rules, let us notice the first of appellant's bill of exceptions which it is insisted in the motion we erred in holding to be too general and insufficient to call for our review, which is bill No. 7. In this bill it is set forth that the prosecuting attorney asked Jack Mauney, a witness for the defendant, a number of questions which are set out, with their answers, as follows: "Q. You met Mug English Friday evening in Brashear, didn't you? A. Yes, sir. Q. Where did you meet him? A. I couldn't say exactly where I met him; I met him all over the place. Q. It rained a little that evening, didn't it? A. I don't remember whether it did or not; didn't rain much, if it did. Q. You and he were in the lumber shed weren't you? A. In the lumber yard, I think, we were not in the shed at all. Q. How long did you stay there? A. Two or three minutes." It is then stated that said evidence at the time it was offered was objected to by the defendant because it was irrelevant, immaterial, incompetent and prejudicial to the rights of the defendant, which objections were by the court overruled and the defendant excepts.
As stated above, this court held the bill thus stated in such condition as not to merit our consideration, and we can see now no error in our former ruling. It is impossible to tell which question and which answer were objectionable,, nor is there any statement of how any of the questions could have prejudicel appellant, nor is there one thing in the bill from which this court might obtain any light in striving to decide whether the answer to this or that question was competent or material. We might easily conjecture many hypotheses on which such evidence might be very material, and on the other hand we might conjecture hypotheses which might render such evidence immaterial. But it is clear that none of these hypotheses, *195 and nothing upon which we can base them, appear in the bill itself.
Appellant next insists in said motion that we should have considered her bill of exception No. 10 which we declined in the original opinion to consider because same was too general. Said bill is as follows:
"Be it remembered, that upon the trial of the above entitled and numbered cause, that while Allie Lee Mauney, a witness for the defendant, was testifying before the court and jury upon cross-examination by the State, the State asked the witness if she was not told while she was before the grand jury last winter, in February, if her attention was not called to the fact that she and Miss Maude had been at places and watched by people, and if she was not questioned specifically about her and her sister's conduct at Pleasant Grove school house one night; was she not questioned in the grand jury about the trip she and Lester Long and her sister and some other young fellows made up to the Pleasant Grove school house and if she was not questioned about a song that had been sung in the crowd that night, and the witness answered that she was brought before the grand jury, but that she did not know who had brought her there and didn't care; that she was questioned something about it, but did not remember that she was questioned about the song. The defendant's counsel objected to such questions and the testimony at the time it was offered, because it was immaterial and irrelevant and defendant was not present and same was not binding on the defendant and was prejudicial, which objections of the defendant were overruled by the court and the State's attorney was permitted to ask the questions and the witness to testify as above stated, to which action and ruling of the court the defendant then and there in open court excepted."
It will be noted at a glance that there is nothing in this bill as to any surrounding facts and nothing to show the materiality of the evidence or how or in what way the same was prejudicial or irrelevant, in fact, nothing but the statement, in substance, as to a number of questions and answers which were purported to have been asked and answered by the witness Allie Lee Mauney before some grand jury some time. The general objection to all of these was that such questions and answers were immaterial, irrelevant and prejudicial, that appellant was not present and same are not binding on her.
It is not clear how defendant's counsel expects this court to determine from the bill what merit there is in such objections; certainly, we are unable to find anything therein that would disclose lack of materiality or the absence of relevancy or the presence of any thing to prejudice the case. The mere facts, as stated, what occurred was in the absence of appellant does not effect the same. There are innumerable instances where predicates are laid and evidence *196 introduced as to what occurred and was said by witnesses and others out of the presence of the accused, and we do not suppose that it will be necessary to instance such cases. This is sufficient to call attention to the fact that the objections made and set out in this bill of exceptions are not such as to make it necessary for this court to violate the plain rules of practice and to search through this entire record to try to find some way in which this evidence was objectionable.
Deference to the earnest insistence of counsel for appellant might lead us to consider one by one again, the bills which our original investigation led us to conclude were insufficient, but it would unnecessarily prolong this opinion to do so. The bills which we have set out sufficiently show how well-founded were our conclusions, and we are constrained to believe that no good could result from an-individual review of each ground of such former opinion. We believe from the record that the appellant has had a fair trial and that no reversible error is shown therein.
The motion for rehearing is overruled.
Overruled.
