2 S.W.2d 242 | Tex. Crim. App. | 1927
Lead Opinion
Conviction for manslaughter, punishment four years in the penitentiary.
Appellant relied on self-defense and insulting conduct toward his wife. The verdict being only for manslaughter, evinces the jury's acceptance of his claim that he killed deceased at the first meeting after learning of the supposed illicit relations between deceased and appellant's wife. Our discussion of the questions presented will be in the order in which same appear in appellant's brief.
The homicide was on February 25, 1927. A letter from appellant's wife to deceased, the contents of which support the inference of illicit intimacy between them, was offered in evidence by appellant. Said letter was postmarked February 25, 1927, and same was found in the mail of deceased after his death. Remarks of the court, made in connection with the offering of said letter, and of the court's ruling thereon, are made the subject of bill of exceptions No. 5. When the letter was offered the court said: "I do not know what is in it. I do not understand it. Does it show who wrote this? In the absence of other proof I cannot tell where this comes from. Mr. Noland is not here to tell where he got it. I cannot tell, to save my soul, who wrote this or what it has got to do with the case." These remarks were excepted to. Further evidence as to the handwriting on the envelope of the letter was tendered, and the court then said in substance that there was no evidence *585
that said letter was delivered to appellant until after the homicide. To this there was further exception. During the discussion of said objection the court further said: "It is not an act of deceased, but an act of defendant's wife," to which further objection was made. Later during the same argument the court said: "There is no proof here now, nor when, if this was written by the same party that wrote the letter, it got in the envelope," to which also objection was made. Appellant then introduced additional testimony bearing upon the admissibility of the envelope, and the court ruled that the letter was admissible, but said it made a difference with him in deciding the admissibility of the letter whether it was postmarked February 25 or February 26, for he thought the postmark was February 26 instead of February 25. This remark was also objected to, the ground of objections being that these remarks above set out were comments of the court on the weight of the testimony. It appears from the bill that a witness had testified that the postmark was February 25. We have set the statements out at some length because of the importance appellant seems to attach to the occurrence and in order that our ruling may be understood. We do not think any error appears in this bill. The letter, which was admitted in evidence, was dated "Friday A. M." Other testimony showed that February 25 — the day of the homicide — was Friday. It was not controverted that the letter was written by the wife of appellant to deceased. The only purpose of the introduction of said letter was to induce the jury to believe intimacy existed between deceased and appellant's wife. That the jury did so believe is evidenced by their verdict. Whether the postmark on the envelope was February 25, the day of the killing, or February 26, seems to us to affect no material issue. Whatever the trial court may have thought of the date of the postmark, he admitted the letter in evidence, and the jury's acceptance of the effect of the introduction of the letter was in nowise affected by any remark of the court. Appellant cites many authorities supporting the admissibility of the letter in question. We think it clearly admissible. He cites others upon the wrong or improper comment by the court. We think these authorities sound, but that they are not applicable. In Gribbles v. State,
Bill of exceptions No. 3 sets out the testimony of W. O. Ward, supporting the reputation of deceased as a law-abiding citizen *586
and for chastity. Clearly such issues might be in a case like this. Jones v. State, 38 Tex.Crim. Rep.; Tatum v. State,
Bill of exceptions No. 2 sets out alleged error in refusing to admit in evidence the register of the Santa Fe Hotel in Amarillo in which appears as of date November, 1926, the names A. E. Wilson and Mary Lane. Other proof was before the jury that deceased had stated that he and the wife of appellant had spent the night at said hotel in November, and that they had registered under the names above set out. We are of opinion that the learned trial judge erred in rejecting this testimony, but are constrained to believe the error not of such gravity as to call for reversal. There was proof before the jury that deceased and Mrs. McCoy, wife of appellant, spent the night at said hotel together, and had the register been admitted, same could have served no purpose further than to have aided in establishing facts usable merely to show an intimacy between deceased and appellant's wife — information and belief of which might have brought the mind of appellant to that condition which rendered it incapable of cool reflection so that the killing of deceased by appellant would therefore be of no higher grade of homicide than manslaughter. The offense which the jury said appellant had committed being found by them to be manslaughter, such fact renders harmless the rejection of testimony whose only effect would have been to help bring the jury to that conclusion. Crawford v. State,
The only remaining complaint deemed necessary to mention is of the fact that the court declined to direct his stenographer *587 to take down the examination of the jurors, which is complained of in bill of exceptions No. 1. Art. 2324 of our present civil statutes seems to require only that such stenographer make a record of the testimony, objections to same, the rulings and remarks of the court thereon, and the exceptions taken. All material matters pertaining to the trial, aside from those specifically named in the statute, we think would greatly be aided, and the official stenographer should make notes and a record thereof. However, in the absence of statutory declarations requiring the stenographer to take down the examination of the jurors and other matters aside from those named in the statute, the duties of the stenographer seem left largely to the discretion of the trial court. We are not at liberty to hold the refusal of the court to require the stenographer to take the examination of the jurors, reversible error, there being no showing of any abuse of the discretion of the court in the matter, or that by reason thereof any injury resulted to the appellant.
Finding no error in the record, the judgment will be affirmed.
Affirmed.
Addendum
We have considered with care the very courteous and forceful motion for rehearing and argument thereon filed by appellant. As was said in the original opinion, there can be no doubt that the learned trial judge committed error in making the remark as to his belief that the postmark on the envelope was dated February 26. It is to be regretted that matters of this kind should occur when there seems so little reason for the trial judge to make such a remark in the jury's presence in face of the statute forbidding it. (Art. 707, C. C. P.) If the letter which was finally admitted bore on any issue save that of manslaughter — of which offense only appellant was convicted — we would not hesitate to reverse because of such untimely remark, or if the conviction had been for more than manslaughter a reversal would unquestionably have been demanded. Appellant argues that the jury was likely impressed that such statement from the judge indicated that, in his opinion, the letter was fabricated for defense purposes, and would therefore conclude that even the issue of self-defense had no foundation in fact. We think the conclusion reached by appellant as to the probable consequence of the unfortunate incident is too speculative. *588
The other questions presented in the motion for rehearing are not thought to demand further attention than was given in our original opinion.
The motion for rehearing is overruled.
Overruled.
