39 S.W. 111 | Tex. Crim. App. | 1897
Appellant was tried and convicted of murder in the first degree, and his punishment assessed at confinement in the penitentiary for life; hence this appeal. The record in this case contains 107 type-written pages, and we have very carefully read the same. Several bills of exception were reserved by appellant. It appears from one of the bills of exception that appellant was arraigned before the venue in the case was changed to Bell County, and again arraigned; and it is the contention of appellant's counsel that this was error. Concede that appellant was twice arraigned; we do not see any error in this for which the judgment should be reversed. The deposition of Jones, one of the parties shot at the same time the deceased, W.A. Binkley, was killed, was introduced in evidence against the defendant. The main objection urged by appellant to the introduction of this deposition was that Jones was physically and mentally incompetent to testify at the coroner's inquest. We are of opinion that he was competent, but that his conduct at the time he gave his testimony could be looked to by the jury in passing upon the credit to be given to his evidence. If a witness be drunk, this fact does not exclude his testimony. The testimony of Jones in this case seems to be very intelligent. A motion for a continuance was made and overruled, and appellant reserved an exception thereto. Upon motion for a new trial the overruling of the motion for continuance was assigned as error. We deem it unnecessary to notice this matter, as the judgment will be reversed upon another ground. However, we believe the continuance should have been granted. The State proved by A.J. Chambers that he was at the house known as the "Blue Goose" (the place where the homicide occurred) on the night of the homicide; that, about a half hour after 1 o'clock a. m., he, in company with Mayberry, Holman, Johnson, and others, left said house; that just before he left he (witness) went out on the gallery of said house, and said Mayberry came out by him, and stood close to him, fixing his horse; and that, while they were so standing, defendant came out on said gallery, and requested said witness, Chambers, to get those two men, W.A. Binkley and H.H. Jones, to leave; said that if he did not get them to leave, there would be hell raised before morning. This evidence was introduced for but one purpose, and that was to show ill feeling by appellant towards deceased. It could be treated by the State for no other purpose than that of a threat against the deceased, and, if the jury so viewed it, it no doubt induced a verdict of murder in the first degree. Defendant proposed to prove by the witness, upon cross-examination, "that the manner of the defendant was not at all threatening, but was peaceable and quiet. I thought defendant meant that Binkley was likely to cause trouble, if he remained there, and that the defendant was solicitous and anxious to get Binkley away, in order to keep him from getting into trouble with the women," etc. The court refused to permit this proof, ruling that this was simply an opinion of the witness, and all that could be proved was what was said *210
and done by appellant. Appellant reserved his bill of exceptions to this ruling of the court. Was the opinion of the witness admissible? We are of opinion that it was. We do not believe we can add anything to what was said by Doe, judge, in State v. Pike,
Reversed and Remanded.
HENDERSON, Judge, does not sit.
[NOTE. — The motion for rehearing filed on behalf of the State by the Assistant Attorney-General was overruled without a written opinion. — Reporter.]