Lead Opinion
This аppeal is from a conviction for the offense of murder with punishment assessed at nineteen years confinement in the State penitentiary.
That appellant killed the deceased was a conceded fact, and his excuse was self-defense. This issue as well as manslaughter and provoking the difficulty were submitted to the jury.
Appellant’s wife was an eyewitness and testified to facts tending to show that the deceased was the aggressor, or at least at the time of the homicide the deceased was attacking appellant with a knife with' *180 the declaration that he intended to kill him. On cross-examination it appeared that the appellant’s wife had remained in Lindale, where the homicide took place, some little time, ahont a half hour, after the homicide and then started for her home, four miles distant, and traveled in a wagon with her son, and while so traveling she met Isom'Vickery and liis wife traveling toward Lindale. The State’s counsel asked her if on this occasion when her wagon was passing the vehicle in which Isom Vickery was traveling the latter didn’t say to her: “Who killed him ?” and if she did not reply, saying: “Ira killed your papa because he sued him. I tried to keep him from it, but I couldn’t do it.” Objection was made to this testimony on the ground that it was not proper cross-examination of the wife, not germane to the direct examination and called for an opiniоn of the witness. The objection was overruled, and Mrs. McDougal having denied the conversation, the State’s counsel proved by Isom Vickery and by Mrs. Isom Vickery that the conversation named did occur. This was objected to as hearsay and as undertaking to prove an opinion and conclusion, and as being an inquiry not germane to the direct examination, which objections were overruled, and exception duly reserved.
We do not think that this expression comes within the rule stated in those cases in which it has been held that expressions constituting a shorthand rendition of the facts are admissible though they bear the appearance of a mere opinion. These cases are cited in Branch’s Ann. P. C., p. 1036, but they all recognize the law to be that where the statement is a mere opinion, even though in a dying declaration, it can not be admitted in evidence. This is illustrated in Manley v. State,
The fact that where the defendant uses his wife as a witness the State may conduct a cross-examination germane to the direct examination is not in question. That is settled by the decisions of this State. Branch’s Ann. P. C., sec. 152, p. 86. Prom the same author, page 87, we quote the limitation or qualification upon this rule:
“It is error to permit the State to go into new matter on cross-examination of the wife of defendant either for the purpose of impeachment or to draw out circumstances or statements adverse to defеndant. Cross-examination is not a device by which the State is entitled to lay predicates as to matters about which the wife of defendant could not be cross-examined or contradicted, or to get before the jury her opinions of defendant’s guilt, or her apprehensions of danger, or her hearsay statements as to new matter. (Citing cases.)
“If the State goes into new matter on cross-examination, the witness becomes, for the time being, a State witness. The State is not entitled on cross-examination of the wife of the defendant to go into new matter, and thereby make the wife of defendant a witness for the State against her husband. The wife of the defendant may he cross-examined by the State only as to such matters as naturally spring out of and appertain to her testimony given on her direct examination.” (Citing cases.)
The subject here emphasized is, that the opinion as to the guilt or innocence of a defendant on trial or to the cause of the homicide is not admissible in evidence. In Marsh v. State,
*183 The cases cited by the Assistant Attorney General are not in conflict with the case of Marsh v. State, supra, in so far as it declares the opinion of the witness inadmissible and declares the statement quoted in that case to have been an opinion. The statement imputed to Mrs. McDougal to the effect that her husband killed deceased “because he sued him,” does not purport to relate any fact but only a conclusion supposed to have been drawn by her from the facts obtained by her from an undisclosed source. It touched a vital issue: the cause of the homicide. That appellant killed the deceased was not in question; the reason for it was the subject of the trial. The evidence complained of should have been excluded.
Appellant asserts that there was error in the refusal of the trial court to grant a new trial on the ground that the jury after its retirement discussed and used against him the fact that he had previously been convicted in this ease and his punishment assessed at twenty years confinement in the penitentiary. It appears that in developing the case reference was made to the fact that the defendant had been previously tried, but there was no rеference or evidence showing how it resulted. On the first night that the jury were out they were of the opinion that appellant was guilty of some degree of homicide, and they balloted a number of times upon the amount of his punishment. Their views varied, some insisting that the offense was manslaughter and the punishment should be two years; others insisted upon five and others upon ten years and others for various numbers of years going up to ninety-nine. They reached that night a stage in which ten voted for fifteen years as the punishment and two against it. There is evidence that one of the men who was for the highest punishment began the discussion or statements relating to the former conviction. One of the jurors testified as follows: “Just before the ten and fifteen-year men agreed on nineteen years it se'emed that we had come to a halt, when the other two would not come to them, and we quit, and several went into another room and went to sleep, ptd a little after 3 o’clock one of the jurors roused up the balance and wanted an agreement.” As to its terms he replied: “Well, in the former trial the jury gave McDougal twenty years, and I think that the anguish that he has undergone for the past year, we will just disregard that year and give him nineteen years.” The juror testifying said that he told him he didn’t think they had a right to consider the former sentence but finally told him that they would get the men' together, and they did get the othеr eight, including himself, and arrived at a verdict of nineteen years. The jurors generally stated that they were not influenced by the fact brought to their knowledge of the prior conviction or the discussion of it.
Article 837, C. C. P., prescribes that “new trials in cases of felony shall be granted where the jury, after having retired to deliberate upon a case have received other testimony.”
In Mitchell v. State,
In Lankster v. State,
“The question thus presents itself: Was this such misconduct on the part of the jury as to require .a reversal of this case? We are aware there are some cases wherein we have stated that the mere allusion to the failure of defendant to testify is not a ground for reversal. But in those cases it will be found that State’s counsel was provoked in what he stated by remarks of defendant’s counsel. Campbell v. State,
In Tutt v. State,
Touching this character of testimony, we quote from the cases of Lankster v. State, supra, and Mitchell v. State, supra, as follows: “The jury say that this discussion in nowise influenced them in arriving at their verdict. The affidavits of jurors who are guilty of misconduct to the effect that they were not prejudiced by what they did is of little weight. As was said in Mitchell v. State,
There are cases passing upon article 837, subdivision 7, holding that a mere incidental mention of the former conviction will not necessarily result in reversal. Among them are Bain v. State,
The statute has also been given a mandatory effect m its application to the receipt of harmful testimony other than that of prior conviction. Thus, in McWilliams v. State,
Another statute (art. 843, C. C. P.) provides that former convictions shall be regarded as no рresumption of guilt, nor shall it be alluded to in the argument. The violation of this statute has been uniformly held reversible error. Davis v. State,
The statute, the violation of which is complained of in this case, is one which expressly directs, that a new trial
shall he granted
where the jury after retirement receives other testimony. The Constitution guarantees a public trial by an impartial jury and that thе accused shall be confronted with the witnesses against him; and one of the provisions of the code is that one is disqualified as a juror who is a
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witness in the case. A juror who knows damaging facts against the appellant should disclose them and disqualify himself upon the ground that he is a witness, and failing to do so and disclosing them to the jury after the retirement can hardly be classed as an impartial juror. The testimony thus received by the jury in its retirement is contrary to the constitutional requirement giving the defendant the right to be confronted with the witnesses against him. Testimony, thus received is under circumstances denying the right of cross-examination declared by our courts as an efficacious test for the discovеry of truth. Bell v. State, 2 Texas Crim. App., 215. The statutes mentioned were passed to preserve to parties accused of crime the constitutional rights referred to and to protect the.State against a corrupt verdict. The inhibition against the reception by the jury of evidence after its retirement, is against legal evidence as well as illegal evidence, but the facts under discussion here relate to illegal evidence only. If on the trial of the case the State had proved over the objection of appellant the prior conviction, it would have given its sanction to the introduction of the damaging fact which was not admissible. Art. 843, C. C. P.; May v. State,
In our judgment the facts disclosed by the bill of exceptions show that the jury after its retirement to deliberate upon the case not only received other testimony but received illegal testimony damaging to the appellant, and, further, that the former convictions of appellant were *188 alluded to and used against him in a manner inhibited by article 843, C. C. P. The evidence, in our opinion, does not show that appellant was not injured by these proceedings. In obedience to the command of article 837, C. C. P., appellant’s motion for a new trial should have been granted.
Because of the errors pointed out the judgment of the lower court is reversed and the cause remanded.
Reversed and remanded.
PEENDEBGAST, Judge (dissenting).
Concurrence Opinion
(concurring). — Concurring with Judge Morrow in the reversal of this judgment, I desiré to make a few general observations with reference to the introduction of the statements of appellant’s wife. The question presented is this: was her statement one of fact or one of conclusion or opinion based on some known facts, or formed and reached without facts? If it was an opinion from either viewpoint it was clearly inadmissible. If her statement was the result or conclusion of statements made to her by her husband, those statements, if admissible, should be produced and not the conclusion from the statements. This, of course, would result in excluding a conclusion or opinion by the witness frоm such facts, or want of facts. The statement of these propositions ought to be self-evident; that is, if the facts exist, being permissible, should be introduced and not the opinion formed from such facts, or if there be no facts, then the conclusion would "not only be an opinion, but would be hearsay, and opinion without foundation. If there are no facts upon which to predicate the opinion, it is equally self-evident that the opinion could not be admissible. The statement imputed to Mrs. .McDougal excludes every idea except that of conclusion or opinion. What operated upon her mind to form the conclusion was not stated. Her statement or conclusion was that appellant killed deceased because deceased had sued him. There must have been some fact inducing such conclusion. What was it? Whatever it was was not given nor stated by her, nor was she asked about it, The witness only stated her conclusion. The jury was entitled to know the facts, if any existed, and not the opinion of a witness. If her conclusion was reached by any communication made by her husband, this would come within the interdiction of article 794, C. 0. P., prohibiting the use of confidential communications. She could not he even cross-examined about such confidential communications. This would lead necessarily to the proposition that she could not be impeached so far as this phase of the matter is concerned. Confidential communications are placed by our statute as being within the Holy of Holies of the law and the family circle, to be rigidly upheld. The family is the basic foundation of our civilization and government, and no invasion should be permitted as to this sacredness. Any statement made by the husband to the wife can not be used under the terms of
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article 795, C. C. P., if incriminating, for this would be making her a witness as to such confidential matters and statements. The question of the testimony of other witnesses as to conversations between husband and wife heard by them is not here discussed, nor is it involved so far as the record shows. The wife is not to be classed as a third party. If her statement was but an opinion or conclusion, it was error to admit the statement. This was conceded and so held in the opinion on the former appeal as found in
I also wish to concur in the reversal of this judgment on account of the misconduct of the jury as shown by the motion for new trial and evidence in support > of it, and stated by Judge Morrow in his opinion. In view of the fact he has so fully and conclusively reviewed the question I deem it unnecessary to add anything to what he has said, but simply add this by way of concurrence. He has reached the correct conclusion of the law applicable to the state of ease presented by the record, and has rightly decided the case on that question. It is unnecessary for me to say more than the above or write further, but I cite the following as some of the cases fully sustaining Judge Morrow’s opinion: Lankster v. State,
Dissenting Opinion
(dissenting). — On the first appeal of this case, reported in
Said statement by her to Isom Vickery and his wife, as they swore, was, at most, but a shorthand rendering of the facts, which heretofore has always been held admissible. 1 Branch’s Ann. P. C., see. 132; Miller v. State, 18 Texas Crim. App., 232; Powers v. State, 23 Texas Crim. App., 42; Fulcher v. State, 28 Texas Crim. App., 465; Meyers v. State,
Again, this court has heretofore held that a dying statement by a deceased, such as that he was “killed for nothing” or “shot without cause,” and other like statements, was a shorthand rendering of thе facts and not a mere opinion, and admissible. Roberts v. State, 5 Texas Crim. App., 141; Pierson v. State, 21 Texas Crim. App., 14; Sims v. State,
If the statement is a shorthand rendering of the facts as shown by the statement, or the context, it has heretofore been held admissible though apparently an opinion. Sims v. State, supra; Connell v. State, supra; Lockhart v. State, supra; Craft v. State, supra; Gaines v. State, supra; Lane v. State,
I have more than once read and studied the testimony heard by the trial judge in the attack of appellant on the verdict of the jury. I am thoroughly convinced that the trial judge was fully justified in overruling the motion for new trial on that ground. I think a cаreful study of all of that testimony should convince anyone that the trial judge correctly overruled the motion on that ground. It is useless for me to detail that evidence. There may be culled, as has been done herein, some expressions in the testimony of some of the jurors which, if taken alone, might have justified the trial judge to have set aside the verdict on that ground, but that is not the criterion. All the testimony of all of the jurors should be considered; and when that is done, as was done by the trial judge in this case, I think his action was correct. And his action is supported by the former decisions of this court. I merely cite some of the cases without commenting upon them. Coffman v. State,
The judgment herein should be affirmed, not reversed. I respectfully, dissent.