Porter v. StatePorter v. State
Where, upon trial of murder, the indictment commenced, “In the name and by the authority of the State of Texas,” the same was sufficient, although the word “the” not being contained in the constitution as it is in the statute. Following Moss v. State, 60 Texas Crim. Rep., 68, and other cases.
2.—Same—Indictment—Words and Phrases—Means Used—Pleadings.
Where, upon trial of murder, the indictment alleged that defendant with malice aforethough did kill and murder Emma Staley, “In some way or manner, and by some means, instruments and weapons to the grand
3.—Same—Jury and Jury Law—Veniremen—Practice in District Court.
Where, upon trial of murder, defendant claimed his attorney had the right to be present while the clerk was drawing the names of the veniremen, in the presence and under the direction of the judge, and to take and make a list of the names as drawn, which was denied by the judge, such contention is untenable, and there was no reversible error. Following Oliver v. State, 70 Texas Crim. Rep., 140, and other cases.
4.—Same—Jury and Jury Law—Names of Veniremen—Service of Writ.
Where, upon trial of murder, there was a variance in the initial letters of certain juror‘s names between those drawn as veniremen and the copy of the writ served upon defendant, but it appeared from the record that these jurors had been excused by the court without objection by defendant who did not exhaust his challenges, there was no reversible error. Following Melton v. State, 71 Texas Crim. Rep., 130, and other cases.
5.—Same—Evidence—Tracks—Opinion of Witness.
Upon trial of murder, where the evidence was wholly circumstantial, there was no error in admitting testimony that some ten days after the alleged homicide tracks were found at different places made by small shoes with sharp heels pointing in a certain direction from where the deceased was last seen towards where her dead body was found, and that her shoes showed that the heel part of the tracks appeared to have been made by a shoe about the same size of the heel, etc. Following Noftsinger v. State, 7 Texas Crim. App., 322, and other cases. Davidson, Presiding Judge, dissenting.
6.—Same—Jury and Jury Law—Postponement—Special Venire.
Upon trial of murder, where the record showed on appeal that defendant was served with a writ containing the names of the veniremen some two days before the trial was set, there was no error in overruling a motion to postpone the trial in order to give the attorneys additional time in investigate these veniremen; it appearing that the attorneys for defendant had lived in the county for a number of years and were reasonably well acquainted with the veniremen, and besides the defendant did not exhaust his peremptory challenges, and had one day‘s service of the writ of the special venire.
7.—Same—Evidence—Letters—Circumstantial Evidence.
Upon trial of murder, where the conviction depended wholly upon circumstantial evidence, there was no error in admitting testimony to the effect that deceased shortly before her death wrote and mailed letters properly addressed to defendant; the evidence showing for the State that defendant was the caused of deceased‘s pregnancy, and had arranged to take her away secretly at night to a place where she could be delivered of the child. Davidson, Presiding Judge, dissenting.
8.—Same—Evidence—Suicide—Circumstantial Evidence—Acts of Deceased.
Where, upon trial of murder, the defendant contended that deceased committed suicide, there was no error in admitting testimony that deceased, several days before the homicide and up to the time she left home on the night of her alleged death, was in good humor and spirits.
9.—Same—Sufficiency of the Evidence—Function of the Jury.
Where, upon conviction of murder, the guilt of the defendant was established wholly by circumstantial evidence, the question was one of fact for the jury, and there was no reversible error. Davidson, Presiding Judge, dissenting.
10.—Same—Evidence—Opinion Testimony—Withdrawal of Testimony.
Where, upon trial of murder, the conviction depended wholly upon circumstantial evidence, and the State introduced a physician who with others had examined the body of deceased soon after it was found some ten days after the alleged homicide, who testified that he could not tell whether death had been produced by choking or strangulation, but stated that it was his opinion based on what another physician had said, who had examined the body, that deceased had died from strangulation or from choloform, and said other physician testified the next day that he had not found such condition, whereupon said testimony as to the opinion of the first physician was withdrawn, there was no reversible error. Davidson, Presiding Judge, dissenting.
11.—Same—Argument of Counsel—Practice in District Court.
Where, upon trial of murder, the defendant objected to the argument of counsel based upon the opinion testimony which had been withdrawn by the court, and the court sustained said objection, reprimanded State‘s counsel and properly charged the jury not to consider said argument, there was no reversible error. Following Miller v. State, 31 Texas Crim. Rep., 609, Davidson, Presiding Judge, dissenting.
12.—Same—Evidence—Declarations by Deceased—Absence of Defendant.
Where, upon trial of murder, the conviction depended wholly upon circumstantial evidence defendant claiming an alibi, there was no error in admitting testimony in the absence of defendant, showing the declarations and acts of the deceased on the night of the alleged homicide, in packing her grip and telling her mother that she was going to meet the defendant at a certain place that night and that he would take her away to a certain place; it having been shown that deceased and defendant met at said place and time on said night and that deceased was not seen thereafter alive; to explain her presence at said place, etc. Following Bozanno v. State, 60 Texas Crim. Rep., 507, and other cases, distinguishing Brumley v. State, 21 Texas Crim. App., 222. Davidson, Presiding Judge, dissenting.
13—Same—Motion to Quash—Special Venire—Practice on Appeal.
Where the trial court overruled a motion to quash the special venire, after hearing evidence thereon, and it appeared from the record on appeal that such evidence was not preserved by a statement of facts and filed during term of court, the same cannot be considered. Following Reyes v. State, 81 Texas Crim. Rep., 588, 196 S. W. Rep., 533, and other cases.
14.—Same—Circumstantial Evidence—Requested Charges.
Upon trial of murder, where the conviction depended wholly upon circumstantial evidence, the court charged the law in a proper manner, there was no error in refusing requested charges on the same subject.
15.—Same—Charge of Court—Practice in District Court.
Upon trial of murder, there was no error in the charge of the court that counsel for both parties had no right to discuss any fact or circumstance not in evidence, and that the jury should not consider such argument.
16.—Same—Identity of Defendant—Contradicting Witness.
Where, upon trial of murder, depending wholly upon circumstantial evidence, the mother of the deceased testified that she saw deceased go with defendant from a certain place on the night she was last seen and upon which it was claimed the homicide occurred, and upon cross-examination testified that on the night, soon after the body of the deceased was recovered, she had stated to the district attorney she could not swear it was defendant who took her daughter away but that he had his general appearance, there was no error in permitting the sheriff to testify that she stated to him that it was defendant she saw on said night. Davidson, Presiding Judge, dissenting.
17.—Same—Evidence—Impeaching Witness—Declaration of Third Party.
Where, upon trial of murder, the conviction depended wholly upon circumstantial evidence, defendant pleading an alibi, and introduced his brother to sustain the same, there was no error in admitting testimony as to the declaration made by said brother to the sheriff on the night he arrested defendant, to the effect that he asked the sheriff if there was anybody with him who would hurt the defendant, the said witness denying said declaration, whereupon the State introduced the sheriff who testified that said brother of the defendant did make such declaration; it appearing that defendant heard the same at the time, etc. Following Robbins v. State, 73 Texas Crim. Rep., 367, and other cases. Morrow, Judge, considering same harmless error. Davidson, Presiding Judge, dissenting.
18.—Same—Evidence—Animus of Witness—Charge of Court—Collateral Matter.
The animus, bias and interest, etc., of any witness can always be shown and such testimony is never collateral, and there was no error in admitting the testimony of the declaration and acts of defendant‘s brother at the time of defendant‘s arrest, thus showing his interest in defendant‘s behalf, especially where the court instructed the jury that they could only consider this testimony in determining the credibility and the weight to be given to the testimony of said defendant‘s brother. Morrow, Judge, considering this harmless error. Davidson, Presiding Judge, dissenting.
19.—Same—Rehearing—Jury Wheel Law—Statutes Construed—Open Court.
Former article 647 C. C. P., with reference to drawing the jury in open court, has been specifically amended by the Act of 1907, known as the jury wheel law, besides, the record showed on appeal that the venire was drawn in open court and the only fact relied upon as showing that it was not was that counsel for defendant, at the request of the court, absented himself from the court-room; in this there was no reversible error.
20.—Same—Copy of Special Venire—Challenges—Practice on Appeal.
Where the record showed on appeal that the jury was selected from the regular venire and that defendant did not exhaust his challenges, his contention that he was injured by not being permitted to have a copy of the venire sooner, is without merit.
21.—Same—Evidence—Tracks—Opinion of Witness.
Upon trial of murder, there was no error in admitting testimony that in a field several miles from the place where the body of the deceased was found, and at a point near where it is claimed deceased met defendant on the night of the alleged homicide, and at a time some two weeks subsequent to the disappearance of deceased, tracks were found made by a woman‘s shoe similar to tracks which would be made, in the opinion of the witnesses, by shoes worn by the deceased when she left home, under the facts of the instant case. Davidson, Presiding Judge, dissenting.
22.—Same—Evidence—Letters—Illicit Relations.
The testimony as to letters seen in deceased‘s possession, addressed to defendant since his marriage, and that similar letters went through the mails, were admissible as a circumstance showing the continuation of illicit relations of the parties subsequent to said marriage. Davidson, Presiding Judge, dissenting.
23.—Same—Charge of Court—Argument of Counsel.
A charge of the court which instructed the jury that counsel on either side had no right to discuss any fact or circumstance not in evidence, did not deprive the defendant of the benefit of arguing and discussing the facts and circumstances in the case.
24.—Same—Evidence—Impeaching Witness—Collateral Matters—Motive.
Upon trial of murder, where the conviction depended wholly upon circumstantial evidence, and where the brother of the defendant denied making the declaration on the night of defendant‘s arrest whether there was anyone with the sheriff who would hurt defendant, the State thereupon introducing the sheriff as a witness tо testify that such declaration was made at the time, a proper predicate having been laid, there was no reversible error, and the motives of said witness cannot be regarded as immaterial or collateral matters. Following Green v. State, 54 Texas Crim. Rep., 3, and other cases. Davidson, Presiding Judge, dissenting.
25.—Same—Evidence—Declarations of Deceased—Res Gestae.
The declarations made by deceased to her mother, while she was packing her clothes, preparatory to leaving home on the night of her disappearance, etc., in addition to the reasons given in the original opinion were res gestae, and admissible in evidence. Following Upton v. State, 48 Texas Crim. Rep., 289, and other cases. Davidson, Presiding Judge, dissenting.
26.—Same—Corpus Delicti—Sufficiency of the Evidence.
Where, upon trial of murder, the conviction depended entirely upon circumstantial evidence, and the facts surrounding the death of the deceased were such as to make it necessarily a suicide or a death resulting from the criminal agency of another, and the facts showed that the theory of suicide was made impossible, and that the jury was justified to find that the defendant was the guilty agent in causing such death, there was no reversible error. Davidson, Presiding Judge, dissenting.
The opinion states the case.
Brown v. State, 54 Texas Crim. Rep., 121, 112 S. W. Rep., 80; Smith v. State, 113 S. W. Rep., 289; Northern Traction Co., v. Danforth, 53 Texas Crim. App., 419, 116 S. W. Rep., 147; Asbeck v. State, 70 Texas Crim. Rep., 225, 156 S. W. Rep., 925.
On question of testimony as to tracks; Mosely v. State, 67 S. W. Rep., 103; Smith v. State, 77 id., 489; Tankersly v. State, 51 Texas Crim. Rep., 224, 101 S. W. Rep., 234; Ballenger v. State, 63 Texas Crim. Rep., 657, 141 S. W. Rep., 91.
On question of admitting letters in evidence; Taylor v. State, 47 Texas Crim. Rep., 101.
On question of withdrawing illegal testimony: Collins v. State, 75 Texas Crim. Rep., 534, 171 S. W. Rep., 729; Henard v. State, 46 Texas Crim. Rep., 90; McCandless v. State, 42 id., 58; Miller v. State, 31 id., 609; Barth v. State, 39 id., 381.
On question of impeachment of defendant‘s brother: Skeen v. State, 100 S. W. Rep., 770; Williford v. State, 37 id., 761; Holland v. State, 60 Texas Crim. Rep., 117, 131 S. W. Rep., 563; Ballard v. State, 71 Texas Crim. Rep., 587, 160 S. W. Rep., 716.
On question of declarations of deceased: Cases cited in dissenting opinion.
On question of corpus delicti not being proved: Lovelady v. State, 14 Texas Crim. App., 545; Robinson v. State, 16 id., 347; Harris v. State, 30 id., 549; Conde v. State, 35 Texas Crim. Rep., 98; Follis v. State, 51 id., 186.
PRENDERGAST, Judge.—Appellant was convicted of the murder of Miss Emma Staley and his punishment assessed at life imprisonment.
The commencement of the indictment is: “In the name and by the authority of the State of Texas.” This is in literal compliance with the statute (
In Moss v. State, 60 Texas Crim. Rep., 268, a motion to quash the indictment therein because the word “of” was inserted in the language—“in the name and by authority of the State of Texas,” the motion was held to have been correctly overruled. In that case the word “the” was also used before the word “authority,” just as in this indictment. What was said and held in said Moss case as to the insertion of the word “of” is specially applicable herein as to the word “the.” The court correctly held the indictment here
After the other usual allegations, the indictment averred that appellant with malice aforethought did kill and murder Emma Staley “in some way or manner, and by some means, instruments and weapons to the grand jurors unknown.” Appellant‘s motion to quash because the language just quoted did not allege the means whereby the alleged murder was committed was correctly overruled. Walker v. State, 14 Texas Crim. App., 609; Sheppard v. State, 17 Texas Crim. App., 74. In the Walker case this identical language was used, and the indictment held valid. The court said: “It is well settled that it is sufficient to allege that the murder was committed ‘in some way or manner, and by some means, instrument and weapons, to the jurors unknown.’ (Com. v. Webster, 5 Cushing‘s Rep., 295; State v. Wood, 53 N. H., 484; State v. Burke, 54 N. H., 92; State v. Williams, 7 Jones N. C., 446; People v. Cronin, 34 Cal., 191; People v. Martin, 47 Cal., 101; Com. v. Martin, 125 Mass., 394; 1 Whar. Prec., 114; Whar. Cr. Ev., sec. 93; 1 Arch. Cr. Prac. and Pl., note 1.)”
When the clerk was drawing the names of the veniremen, in the presence and under the direction of the judge, appellant claimed his attorney had the right to be present and to make and take a list of the names as drawn, which was denied by the judge. He cites only Article 647, White‘s An. C. C. P. as authority, because it prescribed that said drawing shall be “in open court.” This Article, as contained in Judge White‘s book was afterwards amended by the Act of 1907, p. 271, and said words “in open court” were omitted, (Said Art. is now 660 in the C. C. P.) thereby clearly showing the Legislature intended to change the statute, and did change it, so that the drawing could be done by the clerk in the presence of the judge alone, and that this did not have to be done “in open court.” Appellant‘s attorney had no right to be present and take the names as drawn (Oliver v. State, 70 Texas Crim Rep., 140 and cases there cited). The law prescribes the names shall be furnished him (
The writ of venire for the 125 drawn veniremen included these four names viz., O. L. Lindeman, A. E. Pagel, C. C. Lancaster, and O F. Winkler. The sheriff‘s return showed he had served them. In copying the names to serve on appellant these were given as G. L. Linderman, A. S. Pagel, C. C. Lancaster and C. F. Winkler Thereupon appellant movеd the court to quash the service of the writ on him, which was overruled. The court, in approving the bill, qualified it by stating that these four persons—whichever were their correct names—were excused by the court, that appellant was not required to, and did not, pass on either of them, nor use his challenge on
Judge White in his An. C. C. P., sec. 721, says: “Mere discrepancies in some of the names as stated in the copy and the original will be immaterial where it appears that the parties named did not serve on the trial, and defendant did not exhaust his peremptory challenges. Bowen v. State, 3 Texas Crim. App., 617. If there is a variance between the name set out in the copy and the original, the proper practice is to stand such veniremen aside. Mitchell v. State, 36 Texas Crim. Rep., 278; Hudson v. State, 28 Texas Crim. App., 323; Thompson v State, 19 Texas Crim. App., 593; Swofford v. State, 3 Texas Crim. App., 76; Bowen v. State, 3 Texas Crim. App., 617.” Melton v. State, 71 Texas Crim. Rep., 130. The court‘s action herein was correct.
The State‘s testimony showed that deceased left her home on the night of March 12th and in some distance therefrom met appellant near a straw stack, and left with him going in a certain direction which he pointed and which it seems was towards where her dead body was found in the river on March 21st. On March 22nd Mr. Durrett went on the ground at the hay stack, and again on March 26th he and Mr. Smith the sheriff, went there and hunted for tracks leading away from there. They each were permitted over appellant‘s objection to testify in substance that they found tracks, at different places, made by small shoes with sharp heels, the toes pointing in a southerly, and the heels in a notherly direction (which was from towards said hay stack, and towards where her body was found.) The ground had been rained on—a light shower—since the tracks were made. The shoes from deceased‘s feet were then shown the witness and Mr. Durrett testified the heel part of the tracks appeared to have been made with a small heel and as near as he could judge, about the size of the heel of the shoe. The sheriff‘s evidence was to the same effect.
This evidence was admissible. The testimony to establish guilt was wholly circumstantial. When this is the case it has always been held, “the mind seeks to explore every possible source from which any light, however feeble, may be derived.” Noftsinger v. State, 7 Texas Crim. App. 322; Early v. State, 9 Texas Crim. App., 476; Simms v. State, 10 Texas Crim. App., 131; Bailey v. State, 144 S. W. Rep., 1005; Belcher v. State, 71 Texas Crim. Rep., 646, 161 S. W. Rep., 459; Durfee v. State, 73 Texas Crim. Rep., 165, 165 S. W. Rep., 180; Archer v. State, 74 Texas Crim. Rep., 524, 168 S. W. Rep., 857; Hand v. State, 77 Texas Crim. Rep., 623, 179 S. W. Rep., 1155; and “the command of the law is turn on the light.” Preston v. State, 8 Texas Cr. App., 30; Harris v. State, 31 Texas Crim. Rep. 411.
The writ, with the names of the veniremen, was served on appellant about 5 o‘clock June 25th. The case was set for trial June 27th. Appellant made a motion to postpone the trial for one, two, or three days in order to give him and his attorneys additional time to investigate these veniremen. The motion was of considerable length and set up many matters along this line. The court heard evidence on it and after doing so correctly overruled it. The judge allowing the bill, qualified it by stating that Mr. Hare, one of appellant‘s attorneys, had lived in said county fifty years, had practiced law therein for twenty-five or thirty years and had been county and district attorney therein; that Mr. Hubbard, another one of his attorneys, had resided in said county for about twelve years and practiced law therein during that time; that Mr. Felts, another one of appellant‘s attorneys, had resided in the county some twenty or twenty-five years during most of which time he had practiced law therein and had been county judge; that the other attorney of appellant, Mr. Bowmer had practiced law in the county for five or six years and had been district attorney; “and from the evidence adduced in the case the court found that all of these attorneys were reasonably well acquainted with the venire and that they did not all know the same veniremen, but the defendant had the benefit of the knowledge of four attorneys.” And further, that he did not exhaust his peremptory challenges, having two left when the jury was completed.
The statute (
The State introduced testimony showing that appellant for some two years had been having sexual intercourse with the deceased, and that she was pregnant by him at the time of her death with the fetus five or six months old. Appellant had married another wоman on Nov. 22, 1916. The State introduced other testimony to the effect that appellant had seen and had sexual intercourse with deceased, after said marriage and was in communication with her. He was shown to have been in earnest private conversation with her in Belton at a retired place Saturday evening before she was killed, if she was, on Monday night following. Appellant denied all this. The theory and contention of the State was that appellant was informed by deceased that she was pregnant by him, and that appellant arranged with her to secretly at night take her away to another place some distance from her home where she could be delivered of the child without publicity or to produce, or have produced, an abortion on
As stated, his guilt, if he was guilty, had to be established by circumstantial testimony. Hence the court committed no error in admitting the testimony of Mrs. Staley, deceased‘s mother, and Miss Miller and Mr. Tulloch, the mail carrier, to the effect that deceased shortly before her death, and after appellant‘s said marriage wrote and mailed his letters properly addressed to him at his postoffice address. This was a circumstance from which the jury would be authorized to believe that he received such letters, that deceased was in communication with him about her condition, and thereby an interview was arranged at Belton and arrangements made for him to take her away.
Under the issues herein and the contentions of each side the court did not err in permitting several witnesses to testify, over his objections, that deceased was cheerful, in a good humor, jolly and apparently in good spirits for several days continuously before she left home the night she did. This testimony would tend to disprove appellant‘s contentions that deceased committed suicide.
The statement of facts is very voluminous—319 typewritten pages. The other record is also quite voluminous. The testimony on several material points is directly in conflict. The credibility of the witnesses and the weight to be given to the testimony was exclusively for the jury. The evidence to establish appellant‘s guilt is wholly circumstantial. It would be out of the question to give here the whole testimony or even all of the many facts and circumstances tending to show his guilt. It is unnecessary to give the evidence which would tend to show he was not guilty, for in determining whether the evidence is sufficient to sustain a conviction it is necessary to look only to the incriminating testimony and the reasonable inferences therefrom. A brief summary of some of the incriminating testimony and conclusions to be drawn will be given.
Appellant was a young man some twenty-five or twenty-six years old when he became acquainted with deceased and lived a few miles from Belton. She then was a young girl eighteen or nineteen years old and lived with her parents, who also lived a few miles from Belton. He waited on and kept company with her for some years before and up to the time he married another woman. He married the other woman November 22, 1916. After he had been waiting on deceased for a while he succeeded in having her to have sexual intercourse with him. He had other acts of intercourse with her more or less frequently as he had opportunity up to about the time he
Appellant‘s intimate friend, John Graves, swore that just shortly before the Bell County Fair, which was held on Oct. 4th to 9th 1916, appellant told him he had gotten deceased into trouble—in family way, and asked his advice. He told him to either marry her, or get up and leave the country. Appellant told him he did not want to marry her and would not do so, and promptly skipped out of West Texas. His other intimate friend, W. F. Cowan, swore that appellant told him he thought deceased was in family way and he did not intend to marry her, and gave that as a reason why he was leaving. He remained away sometime until he was advised she was about all right, when he returned. Appellant himself admitted substantially what his two friends swore except that he claimed the time he skipped out because he had gotten deceased pregnant that time was in 1915 and not in 1916 as they swore. He also admitted getting letters from her in September and October, 1916, wherein she told him of her pregnancy by him, claiming that the last letter he received was dated October 25, in which she informed him she was all right again. He did not produce any of the letters she had written him. One of his brothers swore positively that appellant burned said October 25th letter in his house in Belton on the night of October 26th and did not take the letter with him in his trunk when he left his house. Appellant‘s wife swore that sometime after she married appellant, which was on Nov. 22, 1916, she found that letter in his trunk, read it, and then she burned it. Appellant is shown to have been with deceased early in September and also early in October, and to have had sexual intercourse with her on both occasions. The night after deceased‘s body was found late in the evening, the undertaker and doctor opened her body and found a well developed foetus—child—in her womb which they swore was five or six months old. There can be no doubt that appellant got her pregnant.
Shortly before her death deceased is shown to have written letters to appellant and mailed them to his postoffice address. On Saturday
Ollie Moore swore that on Monday before deceased‘s body was found the following Wednesday, he saw appellant going up and down said river bank about where her body was found, two or three times as if he was hunting for something.
Appellant has two bills on the same subject. In one it is shown the State introduced Dr. Crain who, with others, had examined the body of deceased soon after it was found. Among other things he testified that the body was in such a state of decomposition, death having occurred so long before, that, “I could not tell if death had been produced by choking or strangulation.” He gave no other opinion of his own knowledge derived from an examination of her body as to what caused her death. However, over appellant‘s objection, he further testified: “My opinion, based on what Doctor Robinson said was the condition of her brain, that is, that it was congested, is that she died either from strangulation or from choroform. I will qualify that statement by saying I did not see the brain myself. I understand Doctor Robinson said he found the brain to be congested.” Dr. Robinson had not then testified, but did testify the next day. He said he did not find her brain in the condition on which Dr. Crain had based his opinion as to the cause of her death. Thereupon as soon as Dr. Robinson had testified appellant moved the court to exclude said testimony of Dr. Crain. The court granted the motion, and instructed the jury to disregard Dr. Crain‘s said testimony and not consider it.
His other bill shows that in the argument before the jury by an attorney assisting the State he said: “Dr. Crain has testified that in his opinion the death of Emma Staley was caused by either chloroform or strangling.” Appellant immediately, by his attorney, objected to this argument and requested the court to admonish said attorney and reprimand him for this, and to instruct the jury to disregard this statement. The court promptly complied with the request of appellant, sustained his objections to the said remark, reprimanded the attorney, and then verbally instructed the jury to disregard that statement, and in addition gave a written instruction asked by appellant, telling the jury to disregard the remark of said attorney for the reason that there was no such testimony before them and not to consider said remark at all in making up their verdict.
The bill and record clearly show that said objectionable testimony by Dr. Crain was based on what he had heard Dr. Robinson had
In Miller v. State, 31 Texas Crim. Rep., 609 wherein he was convicted for murder with the death penalty assessed, the court, through Judge Davidson, held that the weight of authority was that, the effect of withdrawing and excluding testimony erroneously admitted, which was or may have been prejudicial in its nature and tendency, cures the error, and says that such has been the opinion entertained by this court, citing several authorities. And he said: “To hold otherwise would be to sanction the doctrine that the court could not cure any error into which it may have fallen by mistake or inadvertence, and thus render it helpless to rectify errors committed, and the trial a mockery and farce. We cannot sanction such a doctrine.” This case has many times been cited, quoted and approved by this court.
In Hatcher v. State, 43 Texas Crim. Rep., 237, the court therein erroneously admitted the testimony of a witness who swore, in substance, that while he and the appellant therein were in jail together appellant proposed to him to falsely swear to facts on his behalf constituting an alibi. After this testimony was admitted the court realized that he had made a mistake because the appellant therein had not been properly warned. He thereupon withdrew that testimony and instructed the jury not to consider it. Appellant therein claimed that this testimony was of such a damaging character as the withdrawl of the testimony would not cure the error, but this court therein, by Judge Henderson, held against him, Judge Henderson saying, that the decisions of this court on the subject were at variance, and “Some of the cases hold that the exclusion of such testimony will not cure the error, while others hold the contrary. In such a conflict, the true rule would seem to be that if the admitted testimony is of such a damaging character as to suggest the impossibility of withdrawing the impression produced on the minds of the jury, and thus curing the error, it will be cause for reversal; otherwise, if the testimony is not of that damaging character, and not likely to influence the jury, it can be withdrawn, and the error of its admission thereby cured.” Taking this whole matter as shown by these bills, they do not show reversible error under the authorities.
The state showed by the testimony of several witnesses, as stated above, that appellant was seen in earnest and private conversation with deceased in Belton Saturday evening at a rather retired or secluded place; that after this interview between them they returned
One of appellant‘s bills shows that her mother was asked these questions and answered them over his objections: “Q. While deceased was dressing to go what did she say to you as to where she was going, if anything? A. She told me she was going to meet Willie Porter at the hay stack. Q. Where did she say she was going to, if anywhere? A. From there to take the train to Nolanville, to take the train. Q. To go anywhere? A. To go to San Angelo, to take the train at Nolanville for San Angelo. Q Did she state how they were to go from the hay stack to Nolanville? A. She said she supposed Willie Porter would bring a buggy, she did not know, a buggy or a car, she supposed a buggy. Q. When did deceased tell you this? A. She told me this about 9 o‘clock on the night of March the 12th while she was dressing. Q. About how long after that was it before she left home? A. About two hours.”
In this connection, as stated above, deceased‘s mother and her sister both, in substance, testified they went with deceased several hundred yards distant from their home near to said hay stack, about 11 o‘clock that night; that they stopped near by, at a point secluded, and waited—deceased went on nearer to the hay stack; that while waiting they saw appellant go to deceased and have some conversation with her. They could hear them in conversation, but could not distinguish what they said. That while thus conversing appellant pointed in a certain direction, and that thereupon he picked up deceased‘s baggage and they went in the direction he had pointed; which was in the general direction of where her body was found in the river some nine days later. The bag of clothing and grip were also found in the river near where her body was found with all of the articles of clothing just as they had been packed by deceased at her home preparatory to her leaving therewith. When the body was found she was dressed just as she was when she left home and separated from her mother and sister. Her legs just belоw the knees were fround wrapped with baling wire, the wire fastened at her left side by twisting the ends together. This bound her legs so tight that it was impossible for her to walk. She could not move one foot before the other. The small grip had been placed in the bag with the clothing and the bag was closed also with bailing wire, and the bag otherwise wrapped with wire. The testimony was clearly sufficient to show that she met her death very soon after she left her mother and sister in company with appellant. Appellant denied killing her and he and his wife, testified that he was at his home during the whole of the night deceased left her home and when she was evidently killed.
Appellant relies upon Brumley v. State, 21 Texas Crim. App., 222, and that line of decisions which in effect hold that where a defendant‘s defense is self-defense, and deceased had threatened to kill him, that evidence showing that deceased did not go to where the defendant then was for any such purpose or for any unlawful purpose, but instead for a lawful purpose, was inadmissible unless known to the defendant at the time, for it would deprive him of his right to act on apparent danger and appearances to him. We think that line of authorities is not in point and is inapplicable herein. This court, through judge Ramsey in Bozanno v. State, 60 Texas Crim. Rep., 507, clearly showed the distinction. In that case the court over Bozanno‘s objection, permitted the witness to testify as to the movements, actions and declarations of the deceased on the day prior to the homicide stating: “The cases in which the actions, declarations and intentions of a decedent are held not to be admissible against a defendant who has no notice of them, has always been limited to cases where the issue of self-defense arose in the case, and where such acts and movements of the deceased could be held to be hostile in their character, and where such defendant has a right to act upon an apparent hostile movement towards him which might, if the rule permitted it, be shown to be in fact innocent. It can have, we think, no application to such a case as this, and the objection is wholly untenable.” In that case such acts, movements and declarations of the decedent were held admissible.
In West v. State, 2 Texas Crim. App., 460, the acts and declarations of the deceased not in the presence of accused were expressly held admissible, the court saying: “It was competent to prove what he said and did at the time he was in the act of leaving home, on his journey, expressive as to where he was going. Such declarations, made at the time of the transaction and expressive of its character, are regarded as ‘verbal acts indicating a present purpose and intention,’ and are therefore admitted in proof, like any other material facts 1 Greenl. on Ev., sec. 108; 1 Ph. on Ev., 150, title Declarations, part of the res gestae.”
In Washington v. State, 19 Texas Crim. Rep., 521, the trial court admitted, over objections, the evidence of two witnesses, of what deceased said to one of them, to-wit: “that the defendant wanted him, witness, to come to his (defendant‘s) house, on the next morning, and write him, defendant, a letter; witness replied he could not go next morning, but would go that night; whereupon deceased replied that it was no use to go that night, as he, deceased, had seen defendant going down the slough with a shot gun over his shoulder.” His objections were that said testimony “was hearsay, irrelevant, and not a part of the res gestae.” This conversation between the deceased and the witness was in the absence of the defendant,
In the Girtman case this court held that the testimony of Mr. Diemer as to what the deceased said to him at night 200 yards away from defendant and not heard or known by defendant, to the effect that he, deceased, called upon Diemer “to comе up there and take appellant‘s pistol away from him and make Fox Williams leave; that they (appellant and Williams) were fixing to kill him (deceased)” was held admissible as res gestae of the transaction, wherein Girtman did later kill deceased, citing a number of cases.
In 6 Encyc. of Ev., p. 663, it is said: “Previous to or accompanying departure for scene of homicide: the purpose and intention of the deceased when last seen or when departing for the scene of the crime may be relevant for the purpose of connecting the defendant with the homicide in a circumstantial case, as when the deceased intends or expects to meet the defendant. In such cases declarations by the deceased of his purpose are admitted by some courts as part of the res gestae, by others as verbal acts explaining his conduct . . .” citing a large number of cases from other States, and the case of West, supra. To the same effect is 11 Encyc. of Ev., p. 424; 2 Jones on Ev., secs. 347-8.
In the case of State v. Howard, 32 Vermont, 380 wherein Howard was prosecuted for killing Olive Ash in an attempt to produce an abortion that court through Chief Justice Redfield held that the declarations of deceased as to her purpose in going to the defendant‘s where the act of abortion was had upon her were admissible, saying: “The declarations of Olive Ash as to the purpose of going to the respondent‘s (defendant‘s) were properly admitted as part of the res gestae. The mere act of going was equivocal; it might have been for professional advice and assistance. The declarations were of the same force as the act and were admissible as part of the act.”
In the case of the State v. Dickinson, 41 Wis., 299, Dickerson was prosecuted for killing deceased in an attempted abortion on her. Over the accused‘s objections in that case the court permitted the
In Harris v. State, 96 Ala., 24, Harris was prosecuted and convicted for the murder of one Lovelace. Shortly before the deceased was killed he started to the house of the appellant where he was killed. The court held that his declarations of the intention to go to said house and the purpose of his going were held admissible. The court said: “His declarations during the time of this discussion indicative of a purpose to find Becky Thomas, and showing that he had been informed she was at the house of the defendant, were properly allowed to go to the jury as a part of the res gestae of the transaction, tending to explain and give character to his presence and conduct at defendant‘s house. They were declarations made by one setting out on a journey, or starting to go to a particular place, explanatory of the objects and purposes he had in view in going to the particular place; and for that purpose were admissible, their weight being a matter for the jury to determine. Kilgore v. Stanley 90 Ala., 523, and authorities there cited.”
Each of the following cases held exactly the same way, to-wit: Burton v. State, 115 Ala., 1; State v. Vincent, 24 Iowa, 570; State v. Winner, 17 Kansas, 298; Tilley v. Commonwealth, 89 Va., 136; Thomas v. State, 67 Ga., 460. Other text books and cases from other jurisdictions to the same effect could be cited. See also note 1 Wh. Cr. Ev. 495; Wig. on Ev., Sec. 1726.
Under the circumstanсes of this case and the authorities the said testimony of Mrs. Staley was admissible.
Appellant made a motion to quash the special venire alleging several matters which he claimed required the court to quash it. The State contested this motion. The court heard evidence thereon and after hearing the evidence overruled the motion, to which appellant excepted. The bill setting up this evidence was not filed till long after the adjournment of the court for the term hence under a great number and uniform decisions of this court it cannot be considered. See Reyes v. State, 81 Texas Crim. Rep., 588, 196 S. W. Rep., 533 where a large number of cases so holding are collated.
The court gave a full and correct charge on circumstantial evidence which was in conformity with such charges universally held correct by this court. Notwithstanding this, appellant requested several charges on the same subject which the court refused because covered by the main charge. The action of the court was correct.
The court did not err in one paragraph of his charge in telling the jury that “counsel for the State nor defendant have any right to discuss with you or refer to any fact or circumstance not in evidence, and you must not consider or in any way be influenced by any remark or the discussion of any fact or circumstance by the counsel in this case when such fact or circumstance is not in evidence.” The charge embodies a correct principle and we cannot see how it could have injured the appellant in any way.
Mrs. Staley, deceased‘s mother, testified in substance that she saw deceased go off with appellant from said hay stack, as more fully given above. On cross-examination of her, appellant, in an attempt to impeach her, had her testify that on the night soon after the body of deceased was recovered, she had stated to the district attorney that she could not swear it was appellant who took her daughter off but it was a small man and had his general appearance. The court therefore did not err in permitting the sheriff to testify that on that night before she made the statement to the district attorney that she stated to him that it was appellant who went off with her daughter on that ocсasion. Sec. 181, 1 Branch‘s An. P. C.
Alibi was a defense of appellant. The State‘s testimony, as given above, shows deceased left her home just about or just after 11 o‘clock at night in company with her mother and a sister to meet appellant by appointment, near a hay stack several hundred yards from her home. It must have taken her several minutes to have walked the distance. She waited there sometime before appellant reached her. So that, according to the State‘s evidence, it must have been about 11:30 or later, when appellant reached her. He testified he played cards at his home that night until 9:30 or 10 o‘clock, or something like that and then went to bed, and remained there until next morning. He introduced his brother, R. L. (Pete) Porter, who testified to the card playing and going to bed substantially as appellant did. Further, on direct examination Pete said appellant “did not leave the house that night and drive his horse and buggy off before 10 o‘clock;
On direct examination appellant had not asked his brother Pete anything about what occurred at the time of appellant‘s arrest that night. From the testimony, there can be no doubt but that appellant heard the sheriff and all that was said at the time between him and his brother, Pete, and heard Pete ask the sheriff if there was any one with him who would hurt him, appellant.
The authorities hold that when such conversations between others occur in the presence or hearing of an accused they are admissible. Holden v. State, 18 Texas Crim. Rep., 91.; Oliver v. State, 70 Texas Crim. Rep., 140; Miller v. State, 67 Texas Crim. Rep., 654; LaGrone v. State 61 Texas Crim. Rep., 170; Southall v. State, 77 Texas Crim. Rep., 490; Robbins v. State, 73 Texas Crim. Rep., 367; 200 S. W. Rep., 525; 2 Whart. Ev. (2 Ed.), sec. 1136. Such testimony is not so collateral as that the answer of the witness is conclusive; and he can be impeached by showing he did ask such question as was done in this instance.
The authorities also hold that animus, bias and interest, etc., of any witness can always be shown, and that such testimony is never collateral. The testimony makes it clear that as soon as Pete Porter learned the sheriff was there to arrest appellant, he armed himself, went out of his room into the hall right at appellant‘s room, and
So that, under no circumstance, does appellant‘s bill on this subject show reversible error.
The judgment is affirmed.
Affirmed.
In my opinion the impeachment of Pete Porter was improper. It appears that when the sheriff and his posse went to the house where appellant was at night-time, that his brother, Pete Porter, asked the sheriff if there was anybody with him who would hurt Willie Porter. A predicate for the impeachment of Pete Porter was laid. He denied making this statement, and the State afterwards introduced testimony to contradict him. Granting that the remark was made, and that appellant heard it, I think it was not admissible against him. The doctrine that a statement made in the presence of an accused under circumstances which made it his duty to speak is admissible against him, I think cannot be justly invoked in support of the theory that the testimony in question was proper. The inquiry attributed to Pete Porter was not, in my opinion, such a remark as required the appellant to speak. The law on the subject is declared in Holden‘s case, 18 Texas Crim. App. 91, and other cases cited in the opinion written in this case. The proper application of the rule of law thus recognized, in my opinion, should result in the exclusion of the evidence. I am not satisfied, however, that the error in admitting it is one which authorizes a reversal. It seems to me to have been a remark which might naturally come from the brother of appellant without suggesting knowledge on his part of the homicide in question. A number of men coming to his house in the night-time, first making inquiry as to its being the home of another party, and then asking if appellant was there, would not unnaturally prompt inquiry of a brother of appellant as to the design of those making the inquiry, their conduct being such as to arouse the suspicion that their attitude toward Willie Porter was hostile. Without the knowledge of any crime it seems not unnatural that he should have made the inquiry.
This much is said in view of the opinion written by my associate in the case. The charge, however, is not subject to the criticism made in the bill attacking it, nor shown to have affected any argument made and in view of the opinion of the member of the court who has carefully read the record and written the opinion to the effect that the charge was not harmful, I am not disposed to hold it reversible error.
The record is a long one, and has come to my hands near the end of the term, rendering it impracticable for me to give it as careful review as is desired. From such review of it as I have been able to give I found no error which I regard as reversible. I, therefore, concur with my associates in its affirmance.
ON REHEARING.
October 22, 1919.
We cannot agree with appellant. Section 9 of said Act of 1907 specifically amends Article 647, C. C. P., re-writes said article, and the same as amended is now Article 660 Vernon‘s C. C. P. In Brown v. State, 54 Texas Crim. Rep., 121, 112 S. W. Rep., 80, in a dissenting opinion by Judge Brooks is found the language quoted in appellant‘s motion, to-wit: “That said law (1907 is constitutional, and does not repeal the old jury law except in counties affected thereby.” Neither this nor any other authority cited hold that Article 647 was not amended by said jury wheel act, and we hold that it was. Discussion of said pro
Appellant cites the heavy penalty given him as an illustration of the fact that he was injured by not being permitted to have a copy of the venire sooner, but in our judgment that proves nothing. The record shows that the jury were selected from the regular venire and that appellant did not exhaust his challenges. We think this contention of appellant wholly without merit.
The testimony of witnesses Durrett and Smith that in a field several miles from the place where the body of the deceased was found, and at a point near where it is claimed deceased met appellant on the night of the alleged homicide, and at a time some two weeks subsequent to the disappearance of deceased, said witnesses saw tracks made by a woman‘s shoe similar to tracks which in their opinion would be made by shoes worn by the deceased when she left home. There was no evidence that said tracks were accompanied by a man‘s tracks, such as might have been made by appellant. It is unquestioned that the young woman was in that vicinity on that particular night. In our opinion this evidence is impossible of injury to appellant.
The testimony as to letters seen in deceased‘s possession, addressed to appellant since his marriage, and that similar letters went through the mails on that route, were admissible as circumstances showing the continuation of the illicit relations of the parties subsequent to said marriage, and leading up to the time of the alleged homicide.
Nor do we think there was any error in that part of the charge which told the jury that neither counsel had any right to discuss any fact or circumstance not in evidence, and that the jury should not be influenced by any remark, or the discussion of any fact or
We think the objection not well taken to the testimony of Sheriff Smith, to the effect that when he went to appellant‘s home about two o‘clock at night to arrest him, Pete Porter, appellant‘s brother, came to the front of the house, and among other things, asked the sheriff if there was any one with him who would hurt appellant. The proof showed that the said Porter was the most material witness for appellant, livеd in the same house with him, and testified fully to an alibi at the instance of appellant. The matter complained of in this contention was relied upon by the State as an impeachment and a proper predicate was laid when Porter was on the stand by asking him if he did not make said statement to the sheriff, which he denied, and thereupon the sheriff was introduced and testified that Porter did make to him said statement. It is clear that if appellant himself had made such statement to the sheriff when he was arrested it would have been admissible as tending to show guilty knowledge and fear of the consequences of the crime, etc. The same general rule applies to material witnesses. The witness Porter, as stated, was not only the brother of appellant, but his most material witness. Mr. Branch says, in Sec. 86 of his work on Criminal Law:
“The motives which operate on the mind of a witness when he testifies, are never regarded as immaterial or collateral matters.” A party may prove the declaration of a witness which tends to show bias, interest, prejudice, or any other mental state or status which fairly construed might tend to affect his credibility.” Mason v. State, 7 Texas Crim. App., 623; Sager v. State, 11 Texas Crim. App., 110; Bonnard v. State, 25 Tex. Crim. App., 173; Green v. State, 54 Tex. Crim. Rep., 3; Geller v. State, 56 Tex. Crim. Rep., 460; Reddick v. State, 47 S. W. Rep., 993.”
We are unable to say that the inquiry of the witness Porter testified to by witness Smith did not tend to show his interest, bias, or knowledge of a situation from which danger to his brother might arise, and hold the evidence properly admitted.
We think the statements made by deceased to her mother while she was packing her clothes and dressing, preparatory to leaving home on the night of her disappearance in addition to the reasons given in the original opinion, were res gestae of such acts directly explanatory thereof, and admissible in evidence. Upton v. State, 48 Tex. Crim. Rep., 289; Stockman v. State, 24 Tex. Crim. App., 287; Russell, 11 Tex. Crim. App., 288; Dunham v. State, 3 Tex. Crim. App., 465.
We have no doubt of the sufficiency of the evidence to establish the corpus delicti.
There is nothing in the record suggesting any motive for the removal of deceased except at her own hands to avoid the disgrace, or at the hands of the appellant for the same reason. The theory of suicide is made impossible by the surrounding facts. The evidence satisfied the jury under a fair presentation of the law that the appellant was the guilty agent in causing the death of the young lady, and we see no reason to disturb their finding.
The motion for rehearing is overruled.
Overruled.
Appellant and deceased had been friends and sweethearts. He “had been keeping company with her” for eighteen months or more, and their relations were perhaps illicit. In November, prior to the death of the deceased the following March, appellant married another girl. Deceased at the time of her death was pregnant. It is shown that the deceased had been receiving the attention of other men as late as the night of the 10th of March before she left home on the 12th of March, the night of her supposed death. The details are unnecessary to state. On the night of the 12th of March, about 11 o‘clock, the deceased left her home in company with her mother and sister, having prepared herself for a trip, stating that she was going to meet the defendant at a straw stack, which was shown to be about seven or eight hundred yards from the residence, and go with him from there to Nolanville, thence by rail to San Angelo. The mother and sister stopped or secreted themselves some thirty or forty yards distance from the haystack. The girl was shortly joined by a party who came in a buggy, whom the mother and sister of deceased indicate was the defendant. On the night after the discovery of the body of the girl in the Leon river, the mother stated she did not know who was the party meeting the deceased at the haystack, and this was in the presence of hеr daughter who made no statement, but believed it was defendant on account of his size and appearance. She was anticipating, however, that defendant would meet the deceased at the haystack by reason of the statement made by her deceased daughter. On March 21st the body of deceased was found in the Leon river about fifty yards above what was known as Miller Springs Bridge. This bridge spanned the Leon river. The body was removed that night and carried to undertaking parlors in Belton, and was identified as the body of Emma Staley. Before leaving home she dressed herself for the trip, making ample adjustment of her clothes, hair and paraphernalia as would be expected on the occasion of a lady going on a journey. When her body was found her hair, clothing, hat and paraphernalia were not disturbed, and in the same condition as when her mother saw her last before
No witness testified as to the cause of the death of deceased. The writer is of opinion that the record testimony does not show she came to her death from violence. The poison theory is excluded by the testimony. The body was swollen and discolored. Some parts of it more discolored than the remaining portions of the body. The entire body, to a certain extent, was discolored. Three doctors examined the body and all testified there was no evidence of bruises or external violence of any character upon any part of the body; that there was no evidence of poison, although Dr. Robinson made an exhaustive analysis of the stomach and its contents. Dr. Mcllhannon testified that from the examination of the body which he made he could not determine what was the cause of the young lady‘s death. Dr. Crain testified: “I could not tell if death had been produced by choking or strangulation; if you had seen the case within a few hours after the death, you could have told, but I don‘t think I could tell in the condition this body was in when I saw it.” Dr. Robinson did not testify as to the cause of deceased‘s death. He testified to the condition in which he found the body some two weeks after it was found, that there were no unusual evidences about the condition of the body, unless there was possibly some small blood vessels at the base of the brain which were gorged, more than usual; but he could not say that the smaller vessels were gorged, stating: “I couldn‘t be positive about that because that could be postmortem changes.” Dr. Crain also testified that the condition of the body in which it was found at the time he made examination could have been caused by decomposition and post-mortem changes. Dr. Robinson further stated: “I found no evidence of any blow or external violence on the skull, the brain or the scalp, and I found no poison in the stomach of any kind or character.” He also testified that a choke could cause the condition in which he fоund the body; that a jump of thirty feet from the bridge into the water with head
In support of the insufficiency of the evidence, as viewed by the writer, he cites Lovelady v. State, 14 Texas Crim. App., 545; Robinson v. State, 16 Texas Crim. App., 347; Harris v. State, 30 Texas Crim. App., 549; Conde v. State, 35 Texas Crim. Rep., 98; Follis v. State, 51 Texas Crim. Rep., 186; Hunter v. State, 31 S. W. Rep., 674.
It will be noticed that this case is one of circumstantial evidence. Under this theory of the law every reasonable hypothesis must be overcome except that the deceased came to her death at the hands of the defendant. The writer is of opinion that this rule of law is not met. It is a very doubtful issue, under the testimony, as to whether the defendant was at the haystack that night or not, his evidence being of a positive nature on his alibi theоry, that he was so placed in connection with the matter that he was not at the haystack or straw stack that night. The State‘s theory was, by the mother and sister of deceased, that he was present and left there in company with the deceased. There is also testimony that there was an automobile and buggy driven from near the haystack going in the direction of the place where the body of deceased was found. Another proposition growing out
There are some very interesting questions presented by bills of exception. Some of these, the writer is of opinion, form the basis of a reversal.
There are two bills of exception reserved to the ruling of the court permitting the witnesses Durrett and Smith to testify as to tracks. The bills are full and complete, and substantially show that the witness Durrett, some days after the finding of the body in the river, visited the neighborhood of the strawstack where it is supposed the defendant and the girl met on the night of the 12th
“In this case there is no suggestion of any measurements or comparison of the tracks found near the place of the homicide with those of the accused. The witness had seen tracks near the place of the homicide and then saw the foot of the accused at trial and by this merely he was permitted to state his opinion as to the identity of the tracks. We do not believe this should have been permitted.”
In the case of Smith v. State, 77 S. W. Rep., 453, this language was used: “The objection here charged is that the witness is not sufficiently definite as to the character of the tracks to authorize him to give an opinion as to the similarity thereof, but stated in substance that the tracks he saw on the ground were of a number eight or nine shoe; that the impression of the heel of the right foot as it appeared on the ground was that it was made by a shoe worn off on one side of the heel and that the shoes which he saw worn by appellant on that morning appeared to be a number eight or number nine and that the heel on his right shoe was worn off on one side. That the shoes also appeared to be broad across the ball, tapering towards the toe. That he did not take the measurements of the impression on the ground nor of the shoes. In this connection it may be observed that other witnesses examined the locality and state that the ground was very hard there and no tracks apparent. That a short time after the body was discovered a great number of people were there and if there had been tracks
In Tankersly v. State, 51 Texas Crim. Rep., 224, 101 S. W. Rep., 234, the court said:
“Before a witness can testify or give his opinion as to similarity of tracks found upon the ground and tracks made by appellant there must be some measurement taken of the tracks or some fitting into the tracks found upon the ground of the shoes of appellant, or there must be some peculiarity in the tracks found upon the ground corresponding to shoes known to belong to appellant or to tracks known or admitted to have been made by him.”
In these cases the question turns upon admission of tracks supposed to have been made by the accused, wherein in the instant case it was tracks supposed to have been made by deceased. That would make no difference in the application of the principle. This was an important question. This would indicate, if this was the track made by the girl, that she was walking and going in the direction of where her body was later found. She rode in a buggy if the State‘s contention is true. While it might be argued that there were no other tracks there except the one supposed to have been made by the girl, and the defendant was not with her, this would not change the error in the admission of the testimony as it affected defendant. In this connection we might also cite Ballinger v. State, 144 S. W. Rep., 91. These witnesses certainly were not qualified to testify in regard to this matter. They gave the jury no criterion by testifying to the conclusion that this was a woman‘s track, or might be a woman‘s track, and especially that it was a track by deceased and that the shoe exhibited to them might fit it. Under no case and no rule of evidence that has been called to the attention of the writer could this testimony be used against the accused.
Appellant also reserved exception to the testimony of Julia Miller and Frank Tulloch in regard to letters. I am of opinion these letters, and the testimony with reference to them were not admissible. They did not undertake to testify that the girl wrоte the letters, or that he received them. Quoting from the testimony of Julia Miller: “Since Willie Porter married I have seen a letter
The witness Tulloch testified as follows: “It seems that prior to March 21st, there was a letter went through addressed to Will Porter, Route 7, Belton, Texas, but I do not say what box it came from nor I cannot say about when I took up that letter, but it was prior to the death of Miss Staley or before she was found in the river and within six months of that time. In taking up the mail we have our pouch before us and we take the letter from the box and we examine it to see if it is properly addressed to the town and State and stamped and we handle it in the pouch until it is returned to the office. We count the mail now, but they do not count them every month. The letter addressed to Willie Porter was left at the postoffice.”
It seems that Frank Tulloch was a mail route agent or carrier. There are various and sundry objections urged to all this testimony. These will not be taken up seriatim. This testimony, in my judgment, was not admissible. In the case of Taylor v. State, 47 Texas Crim. Rep., 101, we find this language: “Letters not shown to have been written, introduced or received by defendant in response to those written by himself or under his authority are not admissible.” This matter was not res gestae, but was hearsay, and not admissible under any known rule of law that has been called to my attention. Nowhere in the record is it shown that defendant had any knowledge of said letters, or that he ever received them. What evidence there is with reference to the reception of a letter from her by defendant is a positive denial. In the Hollingsworth case, 78 Texas Crim. Rep., 489, the question when letters may or may not be admitted, even where they are received or shown tо have been received, was discussed fully by Judge Harper in an opinion on rehearing, in which the writer concurred, and Judge Prendergast dissented. The same question came in the second appeal of the Hollingsworth case, 80 Texas Crim. Rep., 299. It is also referred to in Hollingsworth case, 199 S. W. Rep., 626. Under these authorities the statements of these witnesses with reference to these letters were inadmissible. It was not shown even that deceased wrote the letters. The letters that Tulloch testified to were not even identified in any way as being the letters to which Julia
There is another important question which, it occurs to the writer, is clearly reversible. Pete Porter, brother of defendant, was used as a witness by the defendant to prove an alibi. To this the witness testified as did other witnesses. The alibi related to the disappearance of the girl, to-wit: the 12th of March. The body of the girl was found on the 21st of March. On the night of the 21st, or rather the morning of the 22nd, about 2 or 3 o‘clock in the morning, the sheriff rode up to the residence of Pete Porter where defendant was living, and asked Pete Porter if that was where Mr. Sandford lived. He told him he was on the wrong road, and he then asked if Willie Porter was there, and was informed that he was. The sheriff then was permitted further to testify that Pete Porter asked him, “Is there anybody out there that will hurt Will Porter?” This was brought out by the State on cross-examination of Pete Porter. Pete Porter denied the statements. Mr. Smith, the sheriff, was then placed upon the stand and permitted, over objections of appellant, to testify that the conversation did occur as indicated. Objection was urged for various and sundry reasons. I am of opinion these objections should have been sustained. When this matter was brought out by the State it made the witness a State‘s witness. It was in regard to matters about which the defendant had not questioned the witness; it was new matter, and when the witness Porter denied making the statements, the matter should have ended. It was but a failure of testimony. The witness had testified nothing against the State, and to no fact that could possibly be injurious to the State; he being the State‘s witness, the matter should have ended, and the testimony not permitted. This was a collateral matter to the main issue, and, therefore, his answer could not be subsequently contradicted by the State. Rainey v. State, 20 Texas Crim. App., 473; Drake v. State, 29 Texas Crim. App., 265; McCray v. State, 44 S. W. Rep., 170; Hall v. State, 66 S. W. Rep., 783; Brittain v. State, 85 S. W. Rep., 278; Holland v. State, 60 Texas Crim. Rep., 117, 131 S. W. Rep., 563.
Again, there are quite a number of decisions of this court to the effect that failure to make proof in an attempt to impeach its own witness, is no ground for impeaching the witness. Bennett v. State, 24 Texas Crim. App., 73; Dunnagain v. State, 38 Texas Crim. Rep., 614; Smith v. State, 45 Texas Crim. Rep., 520; Scott v. State, 52 Texas Crim. Rep., 164; Wells v. State, 43 Texas Crim. Rep., 451; Owens v. State, 46 Texas Crim. Rep., 14; Hanna v. State, 46 Texas Crim. Rep., 5; Ware v. State, 49 Texas Crim. Rep., 413; Skeen v. State, 51 Texas Crim. Rep., 39; Quinn v. State, 51 Texas Crim. Rep., 155; Shackelford v. State, 27 S. W. Rep., 8; Finley v. State, 47 S. W. Rep., 1015; Knight v. State, 65 S. W. Rep., 88; Gibson v. State, 29 S. W. Rep., 471; Kessinger v. State, 71 S. W. Rep., 597; Erwin v. State, 32 Texas Crim. Rep., 519; Williford v. State, 36 Texas Crim. Rep., 414, 37 S. W. Rep., 761; Ozark v. State, 51 Texas Crim. Rep., 106, 100 S. W. Rep., 927; Johnson v. State, 36 Texas Crim. Rep., 394, 37 S. W. Rep., 424; Largin v. State, 37 Texas Crim. Rep., 574, 40 S. W. Rep., 280; Thomas v. State, 14 Texas Crim. App., 70; Goss v. State, 57 Texas Crim. Rep., 557, 124 S. W. Rep., 107. I think this is a sufficient number of cases to support the proposition above asserted without further collation. That the defendant‘s witness by cross-examination as to new matter becomes a State‘s witness in regard to that matter, is supported by a great number of authorities, and if the State fails to elicit the desired answer, it is but a mere failure to make proof, and it is error to permit the State to impeach the witness as to such new matter by proving same, by other witnesses and in this manner get hearsay testimony before the jury. Vaden v. State, 25 S. W. Rep., 777; Woodward v. State, 42 Texas Crim. Rep., 188, 58 S. W. Rep., 135; Owens v. State, 35 Texas Crim. Rep., 345, 33 S. W. Rep., 875; Paris v. State, 35 Texas Crim. Rep., 82, 31 S. W. Rep., 855; Casey v. State, 49 Texas Crim. Rep., 174, 90 S. W. Rep., 1018; Johnson v. State, 22 Texas Crim. App., 206, 2 S. W. Rep., 609; Gaines v. State, 53 S. W. Rep., 623; Maroney v. State, 95 S. W. Rep., 108; Hart v. State, 15 Texas Crim. App., 202; Shackelford v. State, 27 S. W. Rep., 8; Drake v. State, 29 Texas Crim. App., 265, 15 S. W. Rep., 725; Washington v. State, 17 Texas Crim. App., 197.
There is another proposition amply supported by numerous authorities to the effect that it is error to permit the State to impeach a witness by proof, either by admission of the witness, or evidence which lays the predicate that the witness by words or acts, or both, had expressed an opinion of defendant‘s guilt. Cogdell v. State, 43 Texas Crim. Rep., 178, 63 S. W. Rep., 645; Morton v. State, 43 Texas Crim. Rep., 533, 67 S. W. Rep., 115; Vann v. State, 45 Texas Crim. Rep., 434. The writer deems it unnecessary to cite further authorities. The writer is of opinion this testimony was injurious to the defendant, and that the charge of the court limiting this evidence could not cure the error. It is well settled by an unbroken line of authorities in Texas that where illegal testimony is admitted, the effect of it can not be cured by the court‘s charge limiting its effect. It is illegal and erroneous, the effect of it cannot be so directed by the charge of the court as to make it legal. This testimony could have been admitted but for one of
There is another bill reserved to the admission of the testimony of Dr. Crain. The State was undertaking to prove as best it could that the girl came to her death by violence at the hands of somebody, and asked Dr. Crain with reference to the congestion of the brain of deceased. Dr. Crain knew nothing about it, and made a statement to the effect that he had heard that Dr. Robinson had said that there was a congestion of the brain, and if that was true, the girl could have come to her death or maybe did by strangulation or choking. Serious objection was urged to this, Dr. Robinson had not so stated, and Dr. Crain himself said Dr. Robinson had not so stated to him; that he had only heard so, and if what he had heard was true, it might be evidence of the fact that she was choked or strangled. The testimony went to the jury. Later Dr. Robinson was placed upon the stand and denied making such statement, whereupon, on motion of the defendant, the testimony was withdrawn, but it had remained for some time before the jury before this occurred. The court withdrew the testimony after Dr. Robinson made his statement, but in my judgment this did not sufficiently cure this error to render it harmless. A great number of cases are cited in the original opinion to support the ruling of the court, but upon examination the writer does not coincide with that statement on the applicability of the cited cases. For instance, the Miller case, 31 Texas Crim. Rep., 609 is cited. The writer wrote the opinion in the Miller case. In thаt particular case there was some testimony adduced bearing upon a collateral matter which did not tend to connect defendant with
A bill of exceptions was reserved to the ruling of the court permitting the State to prove through the mother and sister of the deceased statements made by deceased on the night she left home. The substance of it is that she, while dressing herself that night and making arrangements to leave home, said she was going to the haystack to meet the defendant to go with him from there to Nolanville, and thence to San Angelo. In this connection the mothеr and sister both testified that she prepared herself, arranged her hair and clothing and laundry bag which she filled with clothing, and they accompanied her near the haystack and secreted themselves to watch results, and that defendant came in a buggy and hitched it near by and met the deceased, and after talking with her a while they left, and that is the last they saw of her until after the body was taken from the Leon river on the 21st of March. All these conversations and matters occurred on the 12th of March. If these statements had been closed at the point where the women say they went with her to the haystack and saw the defendant come, there might not have been error. However, that phase of it is not the writer‘s purpose now to discuss, but to admit the statement that she and defendant were going to Nolanville, and thence to San Angelo, in the mind of the writer, was clearly erroneous. That a party may state his purpose in going
As I view it, the motion for rehearing ought to be granted, the affirmance set aside, and the appellant accorded a new trial in accordance with what the writer believes to be the law. The judgment ought to be reversed and the cause remanded.