Porter v. State

Pоrtee State. County may the Court it proved have been restrictions in her deed judgment which would have rendered the justified valid. conceive of We no restriction which would have passage the of an ordinance which upon super- would confer the cemetery intendent the arbitrary power which it conferred upon question; conceding him in the relator, one in and acting her, grave upon attended the lot of Mrs. Gutecase superintendent, without consent of the we are aware would defense that have trial. If the been available to her performed ordinance is the fact the work valid, the relator for hire without the consent of superintendent would conclude against urge upon the case her. It for her futile to proper person work, sought trial that she was a to perform the perform hours, willing it within proper was able arid to submit conform the direction superintendent, of the that she was willing regulations proper skilful and all observe with reference which manner the work done. It occurs ns purpose preserve symmetry that the of the ordinance was not to system and beauty cemetery, of the and to order insure performance skill of work therein. This we infer ordinance, fact under relator, terms of the without ob- taining superintendent, the consent would have per- only doing provided mitted the work to do that she was she was doing compensation. gratis it not for painstaking most

After and careful consideration of. rehearing capable, motion for we are we are able appellee. We coincide with views of the therefore adhere to judgment that the reversed and the relator the conclusion should be discharged. rehearing The motion for is overruled.

Overruledl Willie Porter The State. 26, Decided

No. June 1918. 4833. Rehearing denied October 1919. 1.—Murder—Indictment—Constitutional Law—Words Phrases. Where, upon murder, commenced, trial the indictment “In the name authority Texas,” sufficient, although State the same

and the being “the” word the constitution contained as and other cases. is in the Following Rep., 68, statute. Moss v. 60 Texas Crim. Used—Pleading's. —Same—Indictment—Words Phrases—Means murder, Where, alleged trial of the indictment that defendant aforethough Staley, way with malice kill and murder did Emma “In some manner, means, weapons grand instruments Texas Criminal juror’s sufficient, quash unknown,” the same was motion to defendant’s language just quoted whereby not state the means al because leged correctly Following Sheppard murder overruled. committed App., 74, State, v. other Texas Crim. and cases. —Same—Jury Jury 3. and in District Law—Veniremen—Practice Court. upon Where, murder, attorney trial of his the defendant had claimed present right in the veniremen, drawing while the was the clerk of names presence judge, under the to take make and direction of and judge, and drawn, the names list of was denied such contention State, untenable, Following and there was reversible no error. Oliver v. Rep., 140, and other Crim. cases. —Same—Jury Jury 4. and of Law—Names of Veniremen—Service Writ. Where, upon murder, between trial of there was a the initial letters variance in juror’s copy names those of drawn as veniremen certain and the upon defendant, appeared served it of writ but from the that record jurors objection by these excused his without had defendant challenges, who not exhaust there was no reversible Fol error.

lowing Rep., 120, Texas Crim. Melton v. and other cases. —Same—Evidence—Tracks—Opinionof Witness. 5. Upon circumstantial, murder, wholly trial where the evidence was of admitting days there was error in ten after the no some alleged places made homicide tracks were at different small shoes found sharp pointing heels direction from where with certain the deceased body found, was last seen towards where her and that dead her'shoes part appeared that the heel showed shoe about the same size of of tracks have been made Noftsinger heel, Following etc. App., Davidson, Presiding Judge, and other cases. dis

senting. . —Same—Jury Jury Law—Postponement—Special and Venire. 6. murder, appeal Upon trial of the record showed on that de- containing writ was served with a names the veniremen fendant of days set, overruling trial before the there was no error two attorneys postpone give the trial in order to motion to time additional veniremen; investigate attorneys appearing these for de- county years reasonably in the a number lived fendant had acquainted veniremen, with the defendant

well besides did not ex- challenges, peremptory day’s had one his service of the haust the writ special venire. Evidence. —Same—Evidence—Letters—Circumstantial 7. wholly upon Upon depended murder, where the conviction cir- trial n admitting testimony evidence, no error there was cumstantial shortly her wrote mailed deceased before death letters effect properly defendant; showing the evidence for the addressed to State arranged pregnancy, and deceased’s to take

defendant was caused of had night place away secretly at to a where she could be delivered of the dissenting. Davidson, Presiding Judge, child. Evidence—Acts of Deceased. —Same—Evidence—Suicide—Circumstantial upon murder, Where, that deceased the defendant contended trial admitting testimony suicide, that de- error in there was no committed up days ceased, she left home the homicide time before several spirits. alleged death, good humor on the ¡5 Porter State. 9.—Same—Sufficiency Jury, of the Evidence—Function of the Where, upon guilt murder, es- conviction of the defendant wholly evidence, question tablished fact circumstantial was one of jury, Judge, Davidson, Presiding for the there was reversible error. dissenting. 10.—Same—Evidence—OpinionTestimony—Withdrawal Testimony. Where, depended wholly upon murder, trial of the conviction circum- physician evidence, stantial the State had introduced a others who days soon some ten after examined of deceased after it found alleged homicide, the had been who testified that he not tell whether death could produced by strangulation, choking stated that it was opinion body, physician said, what another based on who had examined strangulation choloform, had testified or from had died physician day next not found said such con- whereupon dition, physician first of .the Davidson, Judge, Presiding withdrawn, was dissenting. there was no reversible error. 11.—Same—Argumentof Counsel—Practice District Court. Where, upon murder, objected argument trial of the to the defendant of opinion testimony upon the counsel based had been withdrawn reprimanded court, objection, and court sustained said State’s counsel properly charged jury argument, and not to consider said there was no 609, Following State, Miller

reversible error. v. 31 Texas Crim. dissenting. Davidson, Presiding Judge, of Deceased—Absence 12.—Same—Evidence—Declarations Defendant. Where, upon depended upon wholly murder, trial conviction claiming alibi, evidence an there circumstantial admitting defendant error no testimony showing defendant, of in the absence of the declarations night alleged homicide, packing of the on the acts deceased and telling grip her her mother that she to meet at defendant night place away certain that he take to a certain having place; place it shown that and defendant deceased met at said night alive; and to Texas Grim. said that deceased was not time on seen thereafter place, explain presence Following State, v. at etc. said 60 Bozanno Rep., 507, distinguishing cases, Brumley and other Presiding App., Davidson, Judge, dissenting. 222. Crim. Quash—Special Appeal. Venire—Practice 13—Same—Motion on quash special venire, the trial court overruled a motion Where hearing thereon, appeared appeal evidence it from the after on record preserved by a evidence was not that such statement of facts filed court, during Reyes Following term" of the same cannot be considered. Rep., 588, Rep., 533, State, 81 S. W. and other cases. Evidence—Requested Charges. 14.—Same—Circumstantial Upon murder, depended wholly trial upon conviction cir- charged evidence, proper the court law cumstantial manner, refusing requested charges subject. error in was no the same on —Same—Chargeof Court—Practice District 15. Court. Upon murder, charge trial of there was error in no of the court parties right any no for both had discuss counsel fact or circumstance evidence, jury argument. and that the

not in should not consider such Texas Criminal 16.—Same—Identity Defendant—Contradicting Witness. Where, upon upon depending murder, wholly trial circumstantial evidence, go the mother of the deceased testified that she saw deceased night place

with defendant from certain she last seen upon occurred, upon which it was claimed the- homicide cross-examina- night, hody tion that on the testified soon after the recovered, attorney she stated the district had it swear could daughter away general ap- defendant took her who but that he pearance, permitting testify there was error in no the sheriff to that she night. Davidson, stated to him that it was defendant she saw said Pre- siding Judge, dissenting. —Same—Evidence—Impeaching Party. Witness—Declaration of Third Wheré, depended murder, wholly upon trial conviction cir alibi, evidence, pleading cumstantial defendant and introduced his brother same, testimony admitting sustain there was error in to the made the effect declaration said brother' sheriff on the he arrested de fendant, him anybody that he asked the if sheriff there was defendant, who denying declaration, would hurt the said witness whereupon the State the sheriff introduced who testified that said brother declaration; appearing of the defendant did make such that defendant time, Following heard Rep., Davidson, at the same etc. Robbins v. 73 Texas Crim. Morrow, Judge, considering and other cases. same harmless error. Presiding Judge, dissenting. Witness—Charge 18.—Same—Evidence—Animusof of Court—CollateralMatter. animus, interest, etc., always bias witness can shown testimony collateral, admitting such is never and there was no error in testimony declaration and acts of defendant’s brother the time of showing arrest, behalf, defendant’s thus his interest in defendant’s es- pecially this only where the instructed the could weight consider determining credibility given and the to be Morrow, Judge, considering of said defendant’s brother. Davidson, Presiding dissenting. Judge, this harmless error. 19.—Same—Rehearing—Jury Construed—Open Wheel Law—Statutes Court. P., jury drawing Former article 647 C. O. reference to the in open court, jury specifically by 1907, has been amended the ofAct known as the (cid:127) law, besides, appeal wheel the record showed on that the venire was open only upon showing the drawn in fact relied and that was request defendant, court, not counsel at the the of absented court-room; from the in this there himself was no revеrsible error. Venire—Challenges—Practice Appeal. Special 20.—Same—Copy of jury appeal the the selected from the record showed Where challenges, regular not exhaust his his con- defendant did venire and being permitted injured copy not to have a he of the tention venire.sooner, merit. is without 21.—Same-^Evidence—Tracks—Opinionof Witness. admitting murder, was no error in Upon trial of place deceased where several miles in a field defendant on point alleged homicide, met

found, the to the it is deceased near where claimed and at subsequent two weeks night at a time some of deceased, made woman’s disappearance tracks were found opinion witnesses, made, in the would be to tracks similar shoe home, under the facts she left when worn shoes dissenting. Presiding Judge, Davidson, instant case. Statr, v„ Porte® The Relations. 22.—Same—Evidence—Letters—Illicit possession, seen in deceased's addressed letters - through marriage, went that similar letters since his defendant showing mails, ilicit the continuation admissible as a circumstance Presiding marriage, parties subsequent Davidson, relations of Judge, dissenting. said Court—Argument —Same—Chargeof 23. Counsel. charge jury A on either of the court which instructed counsel right evidence, side to discuss fact circumstance deprive discussing arguing the defendant of the benefit-of facts circumstances the ease.

24.—Same—Evidence—ImpeachingWitness—Collateral Matters—Motive. Upon depended murder, wholly upon trial of conviction cir evidence, making cumstantial the declaration on and where brother of the defendant denied night any of defendant’s arrest whether there was defendant, thereupon one with the sheriff who hurt State intro ducing testify the sheriff as a witness to that such declaration was made proper time, predicate having laid, at the error, or there was no reversible regarded motives of and the cannot witness as immaterial Following matters.* 3, collateral Bep., Green v. 54 Texas Crim. Davidson, Presiding dissenting. Judge, cases. 25. —Same—Evidence—Declarations Deceased—Res Geste. mother, packing declarations made deceased to her while she was clothes, preparatory leaving disappearance, home on the of her etc., given original opinion addition to reasons gestae, were res Upton Following and admissible evidence. Davidson, Presiding dissenting. Judge, and other cases. —Same—CorpusDelicti—Sufficiency of the Evidence. Where, murder, depended entirely upon trial of the conviction evidence, surrounding

circumstantial facts the death of the de- necessarily resulting ceased were such as to make it a suicide or a death agency another, theory from the criminal facts that the showed impossible, justified of suicide was made that the to find that guilty agent causing death, the defendant was reversible error. such there was no Davidson, Presiding dissenting. Judge, Appeal from the District Court of Bell. Tried belowbefore the Hon. judge. Spann, M. F.

Appeal murder; from a conviction of life penalty, imprisonment penitentiary. in the states the case. Hubbard, Felts, Bowmer, J. B. DeWitt Hair, G. M. W. W. On question drawing appellant. special of venire: Brown v.

State, Rep., 121, 112 S. Rep., 80; 54 Texas Crim. W. Smith v. Danforth, 289; Co., State, 113 W. Northern Traction v. Rep., S. State, 419, Rep., 147; 116 App., 53 S. W. Asbeck v. Crim. Texas Rep., 225, Rep., 156 W. 70 Crim. S. 925. Texas Mosely 67 tracks; State, S. of as to v. question On Tankersly State, 51 489; 103; id., Smith 77 v. State, W. v. Rep., 28 86 Criminal Texas Rep., 234; Ballenger State, Rep., 224,

Texas 101 S. W. v. Crim. Rep., 141 S. Rep., 657, 63 W. 91. Texas Crim. evidence; Taylor admitting State, in v. 47 question

On of letters Rep., Texas 101. Crim. withdrawing illegal testimony: State, v. of Collins question

On. 729; State, 46 Rep., 534, Rep., 171 S. Henard 75 Texas Crim. W. v. 58; 90; State, id., 42 Miller v. Rep., Texas McCandless v. Crim. 609; id., 381. State, id., v. 39 31 Barth State, Skeen of of defendant’s brother: v. question impeachment On id., State, 761; 37 ‍‌​​​​‌​‌​‌​‌​‌​​​‌​‌‌‌‌‌​‌​​​‌​‌‌‌​‌‌​​​‌‌​‌‌‌​​‍Hol Rep., 770; Williford v. State, 100 S. W. 563; 117, 131 Rep., 60 S. W. State, Rep., land Texas Crim. v. Rep., State, Rep., 160 S. W. 716. Ballard v. dissenting of Cases cited question On of declarations deceased: opinion. being proved: Lovelady v. of not question corpus

On delicti 16 id., 347; v. State, App., 545; State, Robinson 14 Texas Crim. State, 35 Texas 549; Crim. State, id., Conde Harris id., 98; Follis v. Attorney Berry, General, Assistant for the State.

E. A. PRENDERGAST, Judge.Appellant convicted murder Staley punishment Emma and his of Miss assessed at imprison life ment. of

The commencement the indictment is: “In the name and authority of the State Texas.” This is in compliance literal (Art. P). Constitution, (Art. 5, the statute O. C. “ style 12) . bе, . of all writs process is: . shall sec. prosecutions All shall Texas.’ be carried on in ‘The State by authority of the name and State arid shall conclude: ’ ” peace ‘against dignity of the State. The word “the” language in the of the Constitution contained before the “authority,'” is, required by, as it Said the statute. word authority language in the Constitution—in the name quotation. Texas, is The words in the are statute State of quotation said are quotation; nor are words in as the words style of all and in the con- required writs process, an indictment. clusion of quash Rep., 268, 60 Texas Crim. a motion to

In v.Moss “of” inserted in therein because the word the indictment Texas,” by authority State language—“in the name arid In case correctly held overruled. the motion was to have been “authority,” just the word word “the” also used before case Moss said and held this indictment. What was herein applicable specially as to insertion of the word “of” here- indictment correctly “the.” The held the word ¡9 Vo “the,” invalid was because of the insertion of said word overruling appellant’s ground. motion to quash that allegations, After the other usual indictment averred that appellant Emma aforethought with malice 'did kill and murder Staley by means, “in way some instruments manner, some grand and weapons jurors Appellant’s to the motion unknown.” quash language just quoted allege because the means did not alleged correctly whereby the murder committed overruled. State, 14 17 App., 609; Sheppard Walker v. Texas Crim. v. App., language 74. In the Walker case this identical used, and indictment is well held valid. The said: “It sufficient, allege it is settled murder was committed way manner, by means, ‘in some instrument and wea jurors pons, (Com. Webster, Cushing’s 5 Rep., unknown.’ v. 295; Wood, 484; 92; 53 54 Burke, H., State v. N. v. N. State H., Williams, C., 446; People Cronin, Cal., State 7 34 v. Jones N. v. People 101; Mass., 191; Martin, Cal., Martin, 47 125 Com. v. 394; 93; 1 114; Ev., Whar. 1 Arch. Prec., Whar. Cr. sec. Cr. 1.)” Pl., note Prac. drawing When the veniremen, clerk was names of the presence claimed judge, appellant under the direction of his attorney right present had the to be and take list of and to make denied, drawn, by judge. only the names as which was He cites 647, prescribed Article White’s An. authority, C. C. P. as because it drawing shall open Article, be “in court.” This as con Judge tained in Act White’s book afterwards amended 271, p. open omitted, and said “in court” were words (Said P.) thereby clearly showing Art. is now 660 C. C. Legislature change change statute, it, intended and did so that drawing presence judge could be the clerk in the done open alone, and this did not have done “in Appel to be court.” right attorney present had lant’s and take names (Oliver drawn 70 140 and Texas Crim cases there cited). prescribes (Art. law the names shall be furnished him P.) giving service of a on him the names of the C. C. writ veniremen served. writ venire for drawn veniremen included these O. viz., Lindeman, Pagel, Lancaster, E. C. C.

four names L. A. In O F. Winkler. sheriff’s return showed he served them. given copying appellant the names to serve on these were L. as 6r. S, There- Pagel, O. Lancaster F. Winkler Linderman, A. C. C. quash upon appellant moved the court the service of the writ on court, approving bill, qualified him, which overruled. The stating persons—whichever four were their correct these court, required was not excused names—were challenge them, not, pass on either of nor use and did to, Criminal either, objection made no being excused, that he to their nor did so name, he ask for an attachment for either of them under either challenges. that he did not exhaust his Judge says: in his P., ’White An. sec. “Mere discre C. C. original pancies in copy some names as and the stated named appears parties will be immaterial it that peremptory trial, and serve on the defendant did exhaust challenges. App., Bowen v. 3 If there is a State, Crim. 617. Texas copy original, variance between the name out and the set State, v. proper practice is to Mitchell stand such veniremen aside. Rep., App., 36 278; State, Texas Crim. 28 Texas Crim. Hudson v. 323; State, 593; Swofford Thompson App., v 19 Texas v. Crim. State, 76; App., Texas 3 App., State, 3 Crim. Bowen v. Texas Crim. 617.” 71 The court’s action Rep., Melton v. Texas Crim. 130. State, herein was correct. her left home on

The State’s showed appel- of March 12th in some distance therefrom met stack, lant a straw left with him certain near pointed direction it towards where and which seems was March 22nd body was found in the river on March 21st. On dead again stack, and ground hay on at the on Mr. Durrett went sheriff, there and hunted for Marсh 26th he Mr. Smith the went They away leading permitted each were over tracks from there. tracks, objection testify they found appellant’s in substance that heels, sharp, places, made small shoes with toes at different (which notherly in. southerly, and direction pointing in a the heels stack, hay said and towards where was from towards light had on—a shower—since the found.) ground been rained The The shown the from deceased’s made. shoes feet tracks were .then part appear- heel the tracks Durrett and Mr. testified witness as he heel and as near could been made with small ed have shoe. The sheriff’s evidence the size of heel of the judge, about effect. was to the same guilt to establish was admissible. The This evidence always ease has held, When been wholly circumstantial. it every possible explore source from which “the mind seeks Noftsinger State, feeble, may derived.” v. 7 light, however ; 322; State, App., 9 App. Early v. Texas Crim. 476 Texas Crim. 131; App., Bailey State, v. State, 10 144 Texas Crim. S. Simms v. State, Rep., 646, 71 Texas 1005; Belcher Crim. 161 S. W. v. Rep., 165 State, Rep., 165, Texas S. 459; v. 73 Crim. W. Durfee Rep., Rep., 524, 168 State, 74 Crim. S. 180; Archer v. Texas Rep., W. 623, 179 S. State, W. Rep., 857; W. Hand v. 77 light.” the law turn on Rep., 1155; and “the command of 30; State, v. Harris App., Preston Texas Cr. Rep.

Crim. The Porter writ, veniremen, appel- names was served lant about o’clock June 25th. for trial June The case was set Appellant one, two, 27th. postpone made motion to trial for days attorneys or give three order him and his additional investigate time to these veniremen. The motion was considerable length up many along set matters heard this line. doing correctly judge evidence it and after so it. overruled allowing qualified Hare, appel- the bill, stating one of Mr. attorneys, county had fifty years, practiced lant’s lived in said had twenty-five thirty therein years county law for had been attorney therein; Hubbard, district of his Mr. another one county years had attorneys, resided twelve about practiced during time; Felts, law therein one Mr. another appellant’s attorneys, twenty had county resided in twenty-five years during practiced most of which he had law time county therein judge; attorney of ap- the other pellant, county Mr. Bowmer had practiced in the for five six law years attorney; and had been “and district from the evidence ad- duced the case the attorneys court found that all of these reasonably acquainted well and with venire did all same veniremen, know the but the defendant had the benefit of ” knowledge attorneys. further, of four And that he did not ex- peremptory challenges, haust his having jury two left when the was completed. (Art. P.) provides

The statute C. expressly C. in this day’s one copy character of case of a persons service names of special under the shall summoned venire be sufficient. In this case days unsually had two practically equipped he and was well with ex- perienced attorneys ordinary who knowledge had more than persons overruling summoned. The court committed error in motion. testimony showing State introduced that appellant

The for some having years sexual intercourse with the deceased, two had. pregnant by him she at time and that was of her death with the Appellant five or six months old. had fetus married another woman testimony on Nov. introduced to the effect appellant had had seen and sexual with deceased, intercourse marriage after said communication with her. He was private have been earnest conversation with shown her in Saturday place evening Belton at a retired before killed, she was if Monday night following. Appellant denied all she this. The was, theory appellant contention of State was that informed him, pregnant by that she was and that deceased ar- ranged night away place her secretly with her to take another from her be delivered of some distance home where she could the child publicity or an produce, produced, or have abortion without Criminal arranged her; her that he meet him hay near said stack on night carry she home and left out that plan, doing but instead of night got away so that soon after he her from home her, he killed body in placed deep her water in the Leon River so as to cover up Appellant his crime. hide contended that he did not kill hay her away deceased nor meet at the stack her take therefrom: voluntarily she committed suicidе. stated, guilt, if was guilty, As he to be established cir- testimony. cumstantial Hence the court committed no error admitting testimony Mrs. Staley, deceased’s and Miss mother, carrier, Miller Mr. mail Tulloch, the effect that deceased shortly death, arid before after appellant’s marriage wrote properly and mailed his letters postoffice addressed to him at his This address. circumstance from which the would be letters, authorized to believe that received such that deceased condition, with him thereby was in communication about her arranged arrangements at Belton interview was made for him to away. take

Under the issues herein and the of each contentions side the court err in permitting several testify, witnesses to over his objections, cheerful, good deceased jolly humor, days good spirits apparently continuously several before she testimony disprove home the This left did. would tend to appellant’s contentions committed suicide. very typewritten pages. statement of facts is voluminous—-319 quite is The other record also voluminous. The on several credibility points directly material in conflict. The of the witnesses given weight exclusively and the for the jury. guilt wholly appellant’s evidence to establish circum- question give It be to stantial. would out of here the whole testi- many or facts mony tending even all and circumstances to guilt. unnecessary give is his to the evidence show would which determining in guilty, not for tend to show he whether the necessary to a conviction it is to evidence sufficient sustain look incriminating testimony only and the reasonable to inferences summary incriminating A brief therefrom. some testi- given. and drawn mony conclusions to be will twenty-five young years Appellant twenty-six man or some acquainted became with deceased and lived a old he few miles when eighteen years young girl then from Belton. She was a nineteen parents, also lived with her who few miles from old and lived years kept company He on and with her Belton. waited the time he another He married up to married woman. before waiting 22, he been woman November After had the other having sexual succeeded in her have for a while he deceased with her more with him. He had other acts intercourse intercourse opportunity up as he had to about the time he frequently or less Porter State. one, times, married the and at least if not more after woman, marriage. appellant buggy his in One witness testified he saw night deceased o’clock sometime after on,e off the road about nine marriage. appel- his after Another testified sometime witness that get he, appellant, get lant's deceased marriage, tried to witness get out from her her and be with her. home so that he could to see January Appellant 1917, 20, when saw deceased at her home about thought got he went At time he she there and a load of corn. by him. alone, was there was in the house unseen sister appel- Her sister testified the lot where that deceased went out to got he to show lant the corn and told such a state facts as time had Another sexual intercourse with deceased. witness appellant inter- swore that admitted him he did have sexual course with deceased on that occasion.

Appellant’s shortly Graves, just intimate friend, John swore County Fair, before the Bell 4th 9th which was held on Oct. 1916, appellant told him gotten he had into deceased trouble—in family way, and asked his He him marry advice. told to either her, get up country. Appellant leave told him he did not marry want her and so, promptly skipped do out Cowan, West friend, Texas. His other intimate W. F. swore appellant thought told him family way he deceased was in he did marry not intend her, gave why that as reason he was leaving. away He remained until he was sometime she advised all right, about when Appellant he returned. himself admitted substantially his two except what friends swore that he claimed the time he skipped gotten out pregnant because he had time was in 1915 swore. He also admitted getting September 1916, letters her in and October, wherein claiming she told him of pregnancy him, that the last letter 25, received Avasdated October which she informed him she right again. produce was all He did not of the letters written him. of Ms positively One brothers swore burned said 25th night October letter in Ms house in Belton on the October 26th did not take the Mm in letter with Ms trunk Appellant’s when he lеft Ms house. wife swore that after sometime appellant, 1916, she married she found that Nov. trunk, it, Appellant letter read it. then she burned early September early shown have with deceased also October, and to have had sexual intercourse her on both "with occasions. The deceased’s found late after body evening, opened her and found and doctor a the undertaker developed they well her womb which foetus—child—in was swore got five or six months old. can no doubt There be that appellant pregnant. her

Shortly before her death deceased is have shown to written letters to appellant and mailed postoffiee them to his Saturday address. On RC.

3—68 T. Criminal 86 Texas evening, It. March 10th, appellant Belton. deceased and both were clearly they was together shown seen several that were witnesses evening engaged that place at near earnest conversation a retired away a church, fr.equented.and from the most traveled streets. facts and circumstances make he it clear that knew deceased pregnant was him time, making plain at she was way pro- to him he in some must cometo her immediate relief and exposure tect her from disgrace, himself doubtless great trouble she can pregnant because was him. Nor ar- doubt but that he at time of the interview at the church Monday ranged following with her to her near home the meet her night. night, packed On Monday about nine o’clock deceased wearing laundry bag in a grip and a small hand considerable her apparel began and toilet articles and then to dress herself to leave. dressing her she appellant While she told mother to meet go- yards from her home and was hay a certain stack several hundred supposed ing Angelo; that she take the San to Nolanville to train bring buggy to she he would a take her from there to Nolanville buggy. buggy car, supposed didn’t know or a About whether she said her to near went from home o’clock that hand'grip. moth- bag Her hay stack, taking her her of clothes hay a short distance accompanied her to within er sister Deceased They stopped place secluded watch. stack. then at a ap- When hay appellant waited a while at the stack for arrive. laundry bag and proached sitting on he whistled. She then her her, put arms came up when he whistled she stood and he They on her in a low tone which shoulders kissed her. talked though, they heard could not be understood mother and sister intended, they talking. They motion them saw him direction go picked up away then walked and he her baggage, days later nine general body direction of her dead was found river body was deep in the Leon Her found water River. way home. she left in the same clothes and when' dressed securely together just knees, had bound Her legs, below together to tight, bailing wrapped and the ends twisted around wire legs leg. Her the side "of the left and little back from prevent walking. She securely tightly bound as to could so body Her when found foot other. have moved one before the high bridge crossed stream from a up feet or less more some bridge river below the the river.- seems some distance get supply could of water. company was dammed so the water bridge under it. The forty feet or more above the water water more, ten, twelve or distance above was and for point at this de- very in a bad state deep. feet Her found was when facts physical composition. contents her stomach left very that her occurred soon after showed death specifically other witness testified hay her. No doctor or stack with how her death was physical caused. All the and other facts sufficient to show she did not commit but that her death suicide, was by caused In effect, violence. appellant is to have shown only, person who had opportunity or to Mil her, motive that hay he must have her, tilled her soon after left the stack with he legs and then bound bag clothing them in the and threw river to conceal his crime.

Ollie Moore body swore that on Monday before deceased’s was following found the appellant he Wednesday, and down up saw body said river about bank where her found, was two three times if hunting something. as was he for

Appellant subject. In has two bills on same one it is shown the body State introduced Dr. who, Crain had others, examined the Among of deceased soon after it things he found. testified body decomposition, that having such state of death long that, so “I before, occurred could not tell if death had been by choking strangulation.” gave produced opinion He no other knowledge of his own derived from an examination of her toas what caused her death. However, appellant’s objection, over “My he further opinion, testified: based on what Doctor Robinson her brain, is, condition of congested, said it was strangulation died either from or from I choroform. will qualify by saying I myself. statement did not see brain found I understand Doctor Robinson brain to be con- said gested.” Dr. Robinson had then not but did testified, testify the day. next He said he did not find her brain in the condition opinion Dr. Crain based his as to the cause of her death. Thereupon soon as Dr. Robinson had testified moved testimony court to granted exclude said Dr. Crain. The court motion, jury disregard and instructed the Dr. Crain’s said testimony it. consider argument

His other jury bill shows that before the assisting attorney the State he said: “Dr. Crain has testified Staley his the death of Emma was caused either chloro- strangling.” Appellant immediately, by form or his ob- attorney, argument requested jected to to admonish said reprimand attorney this, jury him for instruct disregard promptly complied this statement. The court with the objections request of appellant, remark, sustained said verbally reprimanded jury the attorney, and then instructed the disregard statement, gave.a and in addition written instruc- telling disregard appellant, tion asked the remark attorney said was no the reason that there such before mating up remark at all in them and to consider said their verdict. clearly objectionable

The bill and record show that said by Dr. Crain was ‍‌​​​​‌​‌​‌​‌​‌​​​‌​‌‌‌‌‌​‌​​​‌​‌‌‌​‌‌​​​‌‌​‌‌‌​​‍he had Dr. Robinson had based what heard Criminal

said about the condition of the on that deceased, brain Further, alone. that it was shown Dr. Robinson that he had made no such statement brain, the condition of deceased’s as soon as this parties, and it was all conceded shown, objectionable testimony by Dr. Crain withdrawn from the they jury, only verbally were instructed not at the time but in writing also wholly disregard to it as well remark attorney. State’s

In Miller Rep., Texas Crim. wherein he was for convicted assessed, court, murder with the death penalty through Judge Davidson, weight authority that, held that the of withdrawing excluding effect testimony erroneously ad mitted, may prejudicial which been was or have in its nature tendency, cures says has error, that such been the court, entertained this citing several authorities. And said: ‘‘To hold otherwise would be to sanction the doctrine that court could not error cure into it may have fallen mistake helpless and thus render it inadvertence, rectify to com- errors mitted, and the a mockery trial and farce. We cannot such sanction ’’ many cited, quoted approved has a doctrine. This case times been by this court.

In Hatcher v. court therein erroneously testimony swore,- admitted a witness who sub appellant jail stance, that while he therein to were. gether appellant falsely on proposed to him swear to facts testimony constituting behalf this an alibi. After was admitted appellant court realized that he had a mistake because made properly thereupon therein had not withdrew warned. He testimony Appellant and instructed the not to consider it. testimony claimed a damaging therein that this such char testimony as the withdrawl of the error, acter would cure the therein, Judge against Judge Henderson, him, this held subject that the decisions this court saying, Henderson the eases hold the exclusion of variance, at such “Some testimony error, contrary. not cure while others hold the will if conflict, In a rule seem to be that such the true the admitted damaging suggest impos of such a character as sibility withdrawing impression produced the minds of the reversal; curing the will other jury, error, and thus be cause damaging character, and testimony is not of that wise, if the withdrawn, and the error of likely jury, it can be influence the Taking thereby this whole matter shown admission cured.” its error under the bills, they not show reversible authorities. these do witnesses, as stated by of several The state showed private conversation was seen in earnest and above, Saturday evening a rather retired or deceased in Belton they returned them interview between place; after secluded 3? Porter State. homes;- their thаt on following Monday night packed she quite a lot of wearing apparel laundry -her toilet articles bag and in a grip small hand and dressed herself to leave. appellant’s One of bills shows that her mother was asked these questions and objections: “Q. answered them over his While de- ceased dressing go say you what did she as to where she if going, anything? A. She told me she to meet hay Q. Willie Porter at stack. say Where did she she was going to, anywhere? if A. From there to take the train Nolan- ville, Q. to take go the train. To anywhere? go A. To to San Angelo, to take Angelo. train at Nolanville for San Q Did she go hay state how were to from the stack to Nolan- ville? A. She said supposed she bring Willie Porter would a buggy, she did buggy not know, car, Q. supposed buggy. When you deceased tell this? A. told me this She about o’clock on the Q. March the dressing. 12th while she was About long how after that was it before she left home? A. About two ’’ hours. In this connection, as above, stated deceased’s her mother and sister substance, both, they testified went with deceased several yards hundred hay distant from their stack, home near to said about 11 night; they o’clock that stopped by, point near at a secluded, hay and stack; waited—deceased went on nearer to the waiting they while appellant go saw to deceased and have con- some They versation with her. could hear them in conversation, but could distinguish not they what conversing That said. while thus pointed in a certain direction, thereupon and that picked he up de- baggage they ceased’s in the direction he had pointed; went general body which was in her was direction where found in days bag clothing grip the river nine later. were also body found in the river near where her was found all of with just clothing packed by articles of at deceased leaving preparatory her therewith. When the her home just was found she dressed as she when she left home and separated legs just from her mother and sister. Her below the' wire, wrapped baling knees were fround the wire fastened at with by twisting together. legs left This her side the ends bound her so tight impossible that it was for her to She could not walk. move grip placed one foot before the small had been in the other. bag clothing bag bailing wire, and the closed also with with the bag wrapped and the wire. The otherwise with clearly very met death soon after she sufficient show appellant. company Appellant her mother sister left his he killing wife, he and testified that his her and at denied left home and during the whole of the home evidently killed. when she was 86 Texas Criminal

Appellant upon Brumley relies State, App., 222, 21 Texas Crim. line of decisions which in hold effect defend where ant’s self-defense, defense is him, and deceased had to kill threatened (cid:127) showing go that evidence that deceased did to where the any defendant then purpose was for such or for unlawful purpose, instead for unless purpose, lawful was inadmissible known to the at deprive defendant for it him time, right apparent his him. danger act on appearances We think that line point authorities is not inapplicable through This court, judge Ramsey in Bo herein. zanno 507, clearly Crim. showed In distinction. per case objection, the court over Bozanno’s mitted the witness testify movements, actions and stating: declarations of the prior deceased on the day to the homicide “The cases in which actions, declarations of a and intentions decedent are held against to be admissible a defendant who has no notice of them, always has been limited to cases where the issue of self-defense case, arose in the and where such acts and movements of the deceased could be held to be character, hostile their right such defendant apparent has hostile act ah movement towards him which if the might, permitted it, rule be in shown"to fact have, think, application It can innocent. we to such objection a case as this, wholly In untenable.” acts, that case such movements and declarations of. the decedent were held admissible.

In West v. the acts and declarations App., presence held expressly of the deceased not accused- admissible, saying: competent prove “It was what he leaving home, the time he was the act journey, expressive going. declarations, as to where he was Such exprеssive made at time of of 'character, the the transaction and its indicating present regarded purpose as and in are ‘verbal acts ’ tention, proof, and are admitted in like other material therefore 108; Ev., 1 Ph. on Declara Ev., title 1 on sec. facts Greenl. tions, part gestae.” of the res trial Washington State, Rep., 521, 19 Texas court Crim.

In v. admitted, witnesses, of two of what objections, over the evidence them, “that wanted said to one of to-wit: defendant deceased (defendant’s) on the next morn house, to his him, witness, to come letter; defendant, replied and he could witness him, ing, write go night; whereupon morning, deceased go next night, he, as go had deceased, no use it was replied slough gun with a over shot going down defendant seen hearsay, ir testimony “was that said were objections His shoulder.” between This conversation part relevant, gestae.” not a of and res defendant, of the absence and the witness was the deceased v„ State, 35 Porter it, and deceased it, and he not hear or of when concluded know himself rode slough. A heard, down soon shot was deceased, later, down, body of witness went and found the dead killed shooting him. No saw who him. evidence one shot to establish guilt wholly defendant’s Defendant was circumstantial. was affirmed. penalty convicted and the death assessed. The case was court, Judge admissible, This through Hurt held said evidence saying at or near the that it “tended to the defendant was show that place of homicide, means opportunity that he had the killing of it is deceased, and in the manner shown time App., to have State, occurred.” See also Means v. 10 Texas Crim. 16; 254; Cox v. 8 8 Texas Tooney State, Texas App., Crim. v. App., 452; Crim. Girtman Crim. 168—all point. In of Mr. Bie- the Girtman case this held that the yards away from mer him at as to the deceased said to what defendant, defendant or to the heard known effect he, upon "up ap- deceased, called Diemer “to come take pellant’s pistol away leave; from him and make Fox Williams ” they (appellant Williams) fixing (deceased) kill him were held gestae transaction, admissible as res of the wherein Girt- deceased, man did citing later kill of number cases. 6 Enсyc. p. accompany

In of to or Ev., 663, it is said: “Previous ing departure of the for scene of and intention purpose homicide: of crime departing deceased for the scene when last seen when may connecting the defendant with purpose for of relevant case, homicide intends in a when the deceased circumstantial as In expects to meet the defendant. such cases declarations part as purpose of his are admitted some courts deceased „ conduct . explaining his as acts gestae, by others verbal res large of citing a the case States, number eases supra. Encyc. 2 Jones West, Ev., p. 424; To the same effect Ev., secs. 347-8. Vermont, 380 wherein Howard Howard, In the case of State attempt produce an killing in an prosecuted for Ash Olive through held dec that the Chief Justice Reffield abortion that court going to the purpose defendant’s larations say admissible, abortion were act going purpose of Ash as to the of Olive ing: “The declarations part admitted as (defendant’s) properly respondent’s might have equivocal; mere act of gestae. res The declarations were assistance. professional advice part the act.” act were admissible same force as 299, Wis., 41 Dickerson was Dickinson, v. the State In the case of her. abortion on attempted in an killing deceased prosecuted permitted court case the objections in that the accused’s Over 40 86 Texas Criminal Mary witness testify Erickson to that deceased at left, the time she stated going she was appellant’s purpose having for the abortion produced on her. court held deceased’s declara tions admissible, were saying: “They part constituted a of the res gestae, contemporaneous were with the main fact consideration, under so were connected with it as to 1 illustrate its character. Greenl. Ev., certainly 108. competent prove was went to the house of charged the defendant at the time it information produced. Upon abortion was authorities, intent or purpose going might be shown by her declarations then or previously madе; made such because declarations became part gestae. of the res For it is evident' the declarations were connected with going the act of her defendant; expres to the were character, object sive of the motive, conduct; of her are regarded to be indicating present verbal acts purpose or inten tion, proof and therefore are admitted in like material facts. Ev., 397; 1 8 Mosley, Wall, Enos supra; Greenl. Insurance Co. v. Tuttle, 247; v. 3 Inhabitants Conn., of Corinth v. Inhabitants of Me., 310; 34 & Lincoln, Tyngsborough, Lund Wife v. Inhabitants of 581; 36; Nutting Page, Gray, Howard, 9 4 v. Cush., v. State 32 id., Vt., 380; Meacham, 207; People Moore 10 Davis 56 Y., v. N. v. 95.” In quotes that case and approves the court the deci cites, sion in supra. v. State Howard,

In prosecuted Harris v. 96 Ala., Harris and con- Shortly victed one for the murder of Lovelace. before the deceased -of the was killed he started to the house go The court his intention to killed. held that declarations going to said house and were purpose held admissible. during said: “His declarations the time of discus- Becky Thomas, showing sion indicative of to find purpose defendant, he had at* the house of the been informed she jury go part of the gestae to the properly allowed res give presence transaction, tending explain character to his They were declarations made house. and conduct at defendant’s go setting journey, starting particular out on a to a place, one explanatory objects he had in view purposes in. admissible, purpose were their particular place; and for that Stanley weight being Kilgore v. a matter for to determine. Ala., 523, 90 and authorities there cited.” way, exactly held to-wit: following cases the same

Each 1; Vincent, 570; Ala., Iowa, v. 24 State Burton 115 State v. 136; 298; Tilley Va., Winner, Commonwealth, Kansas, cases from other Ga., books and State, Other text Thomas v. jurisdictions effect also note same could cited. See 495; Ev., Wig. Ev. Sec. 1726. Wh. Cr. Under circumstances this case and the authorities Staley admissible. Mrs. 41 The Porter Appellant quash special alleging made motion to venire several required matters quash which he claimed the court to it. The State contestеd this motion. The court heard thereon and after evidence hearing the appellant evidence overruled to which ex motion, setting cepted. up bill long this evidence was not filed till adjournment after the of the court for term hence under great number and uniform decisions of it cannot this court- be con Reyes State, Rep., 588, 196 sidered. See S. W. large 533 where a holding number of cases so are collated. gave charge court a full correct on circumstantial evi- conformity charges universally in with such held dence Notwithstanding this, appellant requested correct this court. charges subject several on the court refused same which the because charge. the court was covered the main The action of correct. charge telling in one paragraph not err of his right that any “counsel for State nor have defendant you any discuss with or fact or in evidence, refer circumstance not you any way or in any must not consider be influenced remark any or discussion of fact or circumstance in this counsel case when such fact or circumstance is not evidence.” The charge see principle embodies a correct and we cannot how it could injured way. have appellant Mrs. Staley, mother,'testified deceased’s in substance that she saw go appellant off with hay from said as more stack, fully given above. On her, cross-examination of appellant, attempt impeach testify night her, had her that soon after the body.of recovered, attorney deceased was she had stated the district daughter it appellant she took could not swear who off appearance. general and had his it was a small man The court permitting therefore testify did not err the sheriff to that on night attorney before she made the statement to the district appellant stated to him that it was went off with her who daughter on that occasion. Sec. Branch’s An. P. C. appellant. given Alibi was a defense of The State’s testimony, above, just just shows deceased left her home- about after or night a sister company with her mother and to meet ap- o’clock hay yards near a hundrеd by appointment, stack several pellant home. It must taken her several minutes have walked have appellant reached her. waited sometime before So distance. She there that, according evidence, have been about 11:30 State’s must he later, played reached He cards appellant when her. testified night something ’clock, at his home that 9:30 or 10 until o like bed, morning.' and then and remained until next He went (Pete) who R. L. testified to the brother, introduced Porter, substantially playing appellant to bed did. Furth- card appellant “did not leave on direct examination Pete er, ’clock; buggy off before 10 o and drive his horse house 86 .Texas Criminal I cannot swear as to he whether left before 11 o’clock or not, but I do not think he did.” This witness described the house as fronting east, gallery in front, through, occupying and a hall room southeast a room on the north back across the Appellant hall. said “I sleep just opposite across the hall Pete.” Appellant’s just wife swore there was a hall between Pete and appellant’s rooms, the door from opened each room into . this hall. sheriff, Pete Porter and others testified the with Smith, posse, appellant’s went to 2 night about o’clock at after deceased’s body had been appellant. Upon found to reaching arrest there ” “yelled Pete swore the sheriff ‘hello.’ That he was up “waked ” calling ‘hello,’ ”“I raised'up some one ‘hello.’ bed said ‘hello.’ and sheriff you then asked him, “Can tell me where Uncle Johnnie Sanderford way I lives, and said he was off road, he, and asked living me who was there I him I did, and told and he said didn’t Willie ’’ Porter live here. He that he answered did that he back in bed, his room. got up Pete Porter then out of armed himself with pistol says his and he to the went door. The State then asked him if he did not then Smith, sheriff, ask Mr. anybody if there was him who hurt Willie Porter. denied that he He asked the would any thing. sheriff posse such The sheriff’s at the time was located n places at different about the prevent escape house so as to appellant escape. if attempted arrest he had Afterwards testified, State introduced sheriff, appellant’s who over Smith, objections, that on said occasion Pete him if Porter asked there was any one with him that hurt Willie Porter. would appellant had On direct examination not asked his brother Pete what, anything about at appellant’s occurred the time of arrest that night. can testimony, appellant From the be no doubt but that there heard him the sheriff all that was said at the between time brother, any Pete, his the sheriff if heard Pete ask one with him who him, appellant. would hurt

The authorities hold that when such conversations between others presence hearing occur in of an accused are admissible. Rep., 91.; State, Holden v. 18 Oliver v. Texas Crim. Texas State, 70 Rep., 140; State, 654; Crim. Miller 67 Texas Crim. La Rep., 170; Grone v. Rep., State Southall State, Rep., 490; Rep., 367; 73 Texas Crim. Robbins v. Crim. 525; Ed.), (2 testimony S. W. Ev. sec. 1136. Whart. Such is not so ; collateral as that the answer the witness is conclusive by showing question he ask impeached can such as was be done this instance. hold that and interest, etc., also bias animus, authorities

any always can witness be and that such shown, is never testimony makes clear collateral. The soon as Pete Porter appellant, himself, learned the sheriff was there arrest he armed right appellant’s went out his room into hall room, v„ The Portee State. demanded to know of if any the sheriff there was one with him who appellant. hurt showing great Thus his in appellant’s interest behalf. But the requested, gave special and the court charge charged as follows: Hugh “You are the evidence of Smith, a witness for in reference to what R L. Porter might have said to him on the that the defendant was arrested cannot you be taken nor you considered what- evidence ever of guilt the defendant’s innocence, the same should be considered you purpose, for such but if can considered you considered only purpose determining for the the credibil- ity and weight given to be of R. L. Porter, ’’ for no purpose. that,

So under circumstance, appellant’s does bill on this sub- ject show reversible error. judgment is affirmed.

Affirmed, Presiding Judge, DAVIDSON, (dissenting). Judge.

MORROW, (Concurring).—The admissibility of the testi mony deceased, of mother the to the effect that some two hours before deceased left the her home she going said that she was haystack tо a Porter, to meet Willie from there was to go Nolanville take the train to to Angelo, to San and that she supposed Willie bring Porter would a buggy car, presents or a question difficulty. of I have concluded that under the facts of the case it was under the rule of admissible, that a evidence declaration showing excepted a state of mind it is excluding the rule hearsay. On subject Wigmore, the 102, Mr. in See. 1, Vol. in his work on Evidence, declares the rule to be that where the existence - design plan of a of one deceased is relevant to the issues involved

in trial, design the that the fact that plan may such existed be proved by the declaration of person. such In See. 1726, 3, Vol. the subject says: “(1) same author on this charge Where on a of prove murder the defendant seeks that the deceased killed him person him, hypothesis self or that a third killed is of course open proof. Yet, a properly as matter "of precaution, courts something single usually require more than a piece of evidence, example, and will not for fact mere that the admit, deceased was melancholy person country. or that a third fled But, assuming that, person’s guilt data as to suicide or a third are sufficient to plan considered, be the deceased’s of suicide, or the third person’s plan killing, is one herein, item then of the declarations person proper or the third are mode, of the deceased a under the proving present exception, plan.” of Mr. Wharton in his work p. 1, 495, also authorities Evidence, on Vol. cites on subject. Howard, 205 Mass. N. E. See Clanton Criminal (cid:127)In this case the burden prove beyond was the State to reasonable doubt the deceased came to death at the hands appellant by Relying upon violence used him. circumstantial evidence, nécessary it was hypothesis to exclude of suicide which suggested by was the evidence. The declaration of the deceased evinc ing design go haystack, Nolanville, thence thence Angelo, might San was fact have been considered weight negativing theory of some It was also suicide. presence haystack, at the explain circumstance admissible to Wigmore which was witnesses. See testified to the State’s Texas, Evidence, 3, p. 2222; Blumer, Ex 734. The parte Vol. difficulty deciding question arises from the 'fact inseparably is declaration the deceased mentioned connected with tends mind to the conclusion that appellant, to lead the design agreement appellant, an with the deceased’s influenced by hearsay appellant. the conduct of indirectly and to thus establish proved however, that the declaration authorities, it seems Under was admissible. improper. Pete my opinion

In Porter impeachment posse to the house and his went appears that when the sheriff brother, Porter, night-time, Pete appellant was him anybody with who would hurt if there was the sheriff asked Porter predicate impeachment A of Pete Willie Porter. in statement, and State afterwards making this laid. He denied Granting him. that the remark was to contradict troduced it, ‍‌​​​​‌​‌​‌​‌​‌​​​‌​‌‌‌‌‌​‌​​​‌​‌‌‌​‌‌​​​‌‌​‌‌‌​​‍I was not appellant heard think it admissible made, and that presence that a statement made against him. The doctrine duty speak it his which made under circumstances accused . justly support I invoked against him, think cannot admissible question proper. The in theory my not, opinion, Pete Porter such a attributed to quiry subject speak. The law the required remark as App. 91, and case, 18 other cases in Holden’s Texas Crim. declared proper application in of opinion this case. The in written cited the my opinion, should result in in the law thus recognized, the rule of satisfied, however, the I not error am of the evidence. exclusion a reversal. It seems to me is which authorizes admitting it one in naturally from the might come brother a remark to have knowledge part his of the homi suggesting appellant without of coming in house 'A of men question. number cide in being the home of another making inquiry as to its night-time, first unnaturally not there, would asking appellant if and then party, design as to those appellant of inquiry of a brother of prompt being such conduct arouse making inquiry, their With Porter was hostile. toward Willie their attitude suspicion that he unnatural knowledge seems not should any of crime it out inquiry. have made

Portee given instruction the court not to consider or be influenced by any remark or any the discussion of fact or circumstance counsel, when such fact or circumstance is not in evidence, does my stating not full receive endorsement as a principle correct of in law duty a case of circumstantial evidence. In such ease guilt prove State the accused as measured the law affirmative, is circumstantial evidence and the absence facts is argument. available to in the accused opinion my This much is said in view written associate in charge, however, the case. subject is not made criticism in attacking any the bill nor it, argument shown to have affected opinion made in view of member of the court who carefully has read the record and written the to the effect charge was not I harmful, disposed am not to hold it re- versible error. long one,

The record is and has to my come hands near term, rendering end of it impracticable give me it for as care- ful review as is desired. From as I such review have been give I regard found no I, able error which I as reversible. there- fore, concur my with associates its affirmance. rehearing. 22,

October LATTIMORE, Judge. ease This is before appellant’s us on rehearing. alleged motion original for opinion erred holding correct the action of the refusing per lower court in appellant mit for present counsel to be the court room when the special venire was drawn. The contention is 647, that former Article repealed by “Jury C. P. was C. what called the Wheel Act of (p. 1907) 1907” Laws of requires General that said Article special court; in open be drawn venire and that exclusion from court room of counsel it is shown drawing of said in open court, venire in the contemplation law. agree appellant.

We cannot 9 of Section said Act of 1907 specifically P., amends Article C. article, C. re-writes In and the same as amended is now Article Vernon’s C. C. P. Rep., 121, Rep., 80, 112 S. W. Brown Judge dissenting opinion by language quoted Brooks is found the (1907 is appellant’s motion, constitutional, to-wit: “That said law repeal except law counties affected the old and does not authority thereby.” nor hold Neither cited by jury not amended said wheel Article 647 was that pro- Discussion of said hold it was. that act, we 86 Texas Criminal position however, foreign is question to the to as whether the open venire was drawn in Appellant’s court. bill exceptions said shows that courtroom, venire was in fact in drawn in presence by of the court, and only relied clerk. fact showing that it not open court that counsel from, the appellant, at request court, of the absented himself the courtroom. The fact appellant’s permitted that counsel was not present to be in no open. sense shows that was not Wit- nesses are constantly session, excluded from is courts while court juries in appropriate also, instances .are and other illustations might be showing instanced that exclusion counsel mere wholly is support any insufficient contention that venire open says not drawn in expressly court. Our statute accused shall day’s have one day trial, before the of the service copy of the names of those summoned special under a venire and we facias, know of no authority holding attorney that the of the defendant in such right eases has present to be drawing at the any right the venire or copy thereof, service of other than as fixed statute.

Appellant heavy cites penalty given him as an illustration of the fact injured that he was being permitted to have but, copy of nothing. the venire judgment proves our sooner, jury regular The record shows that the were selected from the venire challenges. appellant and that did not exhaust his We think this wholly appellant contention of without merit. of witnesses Durrett and a field Smith that place

several miles where the of the deceased was found, point appel- and at a near is claimed where it deceased met alleged and at a time some homicide, lant -the two subsequent disappearance deceased, weeks said witnesses aby tracks made woman’s shoe similar to tracks which in their saw opinion when would be made shoes worn the deceased said accompanied tracks were There was evidence left home. might aрpellant. tracks, such as have been made by man’s young vicinity unquestioned that the woman was in that on that night. impossible In our of in- particular evidence jury appellant. possession, as to deceased’s letters seen in addressed through marriage, similar since letters went route, showing mails admissible as circumstances parties subsequent continuation of illicit relations marriage, leading alleged time of the homicide. up charge any part

Nor think do we error any right jury that neither counsel had discuss which told evidence, any fact or circumstance not and that the should by any remark, influenced discussion of fact v„ 47 The Portee State. with, agree circumstance not in We are to con- evidence. unable tention equivalent depriving appellant to of the benefit of arguing discussing guilty lack of and circumstances facts in the case.

We objection think the of Sheriff not well taken to the Smith, to the home about appellant’s effect that when he to went brother, night appellant’s two at o’clock to Pete him, Porter, arrest came things, asked house, among* front of the other any appellant. sheriff if there was him would hurt one with who proof The witness showed that the material said Porter was the most fully for appellant, him, testified lived in the same house with' in to an complained alibi matter appellant. instance of impeachment this contention was relied as an upon by State predicate and a stand proper was laid when Porter asking sheriff, if him he did not make said statement and testified he denied, thereupon introduced sheriff was ap if that Porter did clear make to him said statement. pellant when he himself had the sheriff made such statement to guilty tending to show arrested it would have been admissible as crime, etc. The same knowledge consequences and fear of the Porter, as general applies rule witness to material witnesses. stated, most material only appellant, but his the brother of Law says, witness. Mr. Branch 86 of his work on Criminal See. : testifies, ‘The operate motives which mind when of a witness A regarded party are never or collateral matters.” immaterial may in bias, prove show the declaration of tends to a witness which fairly terest, or mental or status which prejudice, state 7 State, might v. construed Mason credibility.” tend affect his 110; App., App., 623; Sager State, Texas v. 11 Crim. Crim. State, 54 Tex. State, 173; 25 Ter. App., Bonnard v. Crim. Green v. 460; v. 3; Tex. Reddick Rep., State, Rep., Geller v. 56 Crim. Crim. State, 47 W. 993.” Rep., S. say inquiry

We Porter are unable the witness bias, or interest, testified to witness Smith not tend to show his might knowledge danger to his brother situation from which hold arise, properly admitted. evidence mother while We think the her statements made leaving packing preparatory she was her clothes dressing, reasons -disappearance addition home on the of her directly original acts given gestae opinion, were res such Upton explanatory thereof, and admissible evidence. App., 24 Crim. 289; Tex. Tex. Crim. Stockman Tex. State, Dunham v. 288; 287; Crim. Russell, App., Tex. Crim. App., sufficiency evidence to establish

We have doubt of the corpus delicti. 86 Texas Criminal as to surrounding lady such young facts the death necessarily

make it resulting the criminal death suicide agency of seen According another. when last testimony, alive good appearance witnesses, health and deceased was going away trip trip on a she made Angelo, to San for which laundry in a careful preparations, taking her all of clothes witnesses, bag, small dead two valises. When next seen yards floating sixty fifty about deep water in River, Leon bailing legs the was Springs bridge; above Miller and around voluntary so locomotion tightly wire wound as to and twisted render in- loop, her wholly was a tell-tale impossible, and said wire claimed, with- dicating weight but the of a It use of some kind. fallen may body out have support thereof, evidence in that the bridge where found. place from the the drifted afterwards at This fact that eonpletely deduction is the further overcome bag laundry practically found, the point body the same the of having in it the deceased was at river, found the bottom of the valises, laundry tightly two little wound bag and said was also bailing loops, tell-tale wire, were the same wire also indicating weights. the use of belief that the It seems incredible of laundry the of river from bag could floated on the the have bottom this, bridge body only Nоt spot to the was found. same where the body deceased, the the said that doctors who the of examined in a eyes tongue face and protruding head discolored, manner that could though could not strangulation, result state from body the time death the had been in the water actually strangulation. resulted from In to these facts addition unimpeáched days discovery witness testified few before the of body, appellant walking along forth seen back and bank opposite spot the river found where the later. nothing suggesting any There is in the record motive for except removal of deceased at own disgrace, hands avoid the theory at hands of the for same reason. The surrounding impossible by facts. The evidence suicide made satisfied presentation ap- a fair under the law that the pellant guilty agent causing was the young the death of lady, finding. and we see no reason to disturb their rehearing The for motion overruled.

Overruled. Presiding Judge. DAVIDSON, (Dissenting).—On 26th, June judgment herein I my was affirmed. entered at dissent On time. motion rehearing for I have case reviewed the degree with decided legal My interest aspects. its views entertained agreeing the time affirmance have been strengthened more than a revision Porter State. rulings of the record 4he of the trial court. I not believe do facts, justify the conviction. the record, evidenced necessary prerequisite as a a con- Under the Texas statute it is viction in corpus proved. homicide cases that delicti be body of the deceased It must found identified. must also be shown that the deceased came to death as a It result of violence. accused, this violence was caused must further be shown that in order to constitute as criminal the inflict- necessarily, violence ed, very voluminous, unlawful. The record is and the must be general way, in a state, except writer will not undertake either testimony. the substance or effect Appellant and friends and sweethearts. He eighteen keeping company with her” for months oi° “had been perhaps November, prior illicit. In more, their relations were following March, appellant the deceased married to the dеath pregnant. of her death girl. Deceased at the time another receiving deceased had been the attention it shown night March as the of the 10th of before left as late men night March, supposed of her death. home on the 12th unnecessary On to state. of the 12th of details are o’clock, company the deceased left her home in March, about having sister, prepared trip, herself for a her mother and with going a straw stack, was to meet the defendant at stating that she eight yards or hundred to be about seven which was shown Nolanville, go him from there to thence residence, and with Angelo. stopped The mother and sister or secreted rail San haystack. thirty forty yards distance from the themselves joined buggy, in whom girl shortly party a who came a was The indicate was the defendant. and sister of deceased mother discovery body girl of in the Leon night of On after the party know who was river, she did not the mother stated presence was haystack, and this meeting at the the deceased statement, but de- daughter believed was who made no of her anticipat- appearance. She was account of his size and fendant on meet the deceased ing, that defendant would however, daughter. her deceased haystack by reason of the statement made Leon river body of deceased was found March 21st On Bridge. Springs as Miller fifty known yards above what was about body was removed The bridge spanned the Leon river. This Belton, and was undertaking parlors and carried to leaving Staley. home she body Before as the of Emma identified her adjustment of making ample trip, for the dressed herself on the oc- expected paraphernalia as clothes, hair body was found journey. When her lady casion of a on a disturbed, hair, clothing, paraphernalia her hat and were her saw her last before in the condition when mother same R.C. 4—68 T. Texas Criminal

leaving hair reaching the house haystack. before disarranged, clothing had not been nor her body. her about There a veil her head. was This not disturbed. She was dressed bailing There in a coat suit. wire tied some inches below her around both together, knees twisted legs, еither in the front or at top side, and her skirt the left was under the wire front and not grip the wire behind. Her bag under hand-satchel clothing by, having were found the river near been sunk with weights autopsies made, attached. Two immediately one after getting body undertaking establishment; the other on the April. 3rd of These examinations showed violence deceased, person poison and no found in the stomach, and nothing which would indicate she came to her death violence. bag containing laundry clothes was found some two weeks body discovered, after her at the bottom the Leon river at a body laundry bag near was found. This point, bailing around wires twisted the outside of it. The was in two decomposition discolored, lips eyes state bad swollen, tongue slightly protuding. No examination was made of lungs. Springs Bridge forty The Miller was about feet water and the was some deep above the water ten or twelve feet There point. pool, seems to have been a sort of or lake at that reason of a dam formed below. The defendant lived about Belton, miles west deceased about four miles northeast six Bridge Springs town. Miller of the same the road leading city from deceased’s residence to of Belton. wasi kept men with company that other deceased after defend- shown November, 1916, being Saturday her as married late ant weighing 10th. Defendant man night, March about small height, twenty- five feet and inches in pounds, five about age. twenty-three years age, years Deceased was about seven single weighed pounds. about 120 So far as the woman shows, after the deceased was never alive she left record seen It in that defendant had a con- haystack. also evidence the in January, deceased some time and another versation in the town of March 10th. This latter conversation occurred is not shown. No What was at these conversations Belton. parties, passed shown to have between the but letters were neighbor- testimony from the introduced three letters State placed mail, addressed where deceased resided hood were As far no defendant. as the record shows there family against any of her complaint the deceased or member alibi, defense his defendant. defendant’s showing home, he was at ten .lived, miles from night March An of 12th. seen automobile was haystack direction of the on the about o’clock of March ;45 buggy leaving and that at an automobile a was seen 12th, adjoined stack, going pasture straw the direction of driving slowly. Springs Bridge, Miller both That about night an o’clock that automobile was seen to drive on Miller Bridge body Springs opposite to where the was found, stop, turn minutes, remain lights, proceed out the a few and then toward claimed, nor does evidence show, Belton. that de- family any or of his owned an fendant automobile. The de- lived, buggy. fendant’s with whom he owned On Satur- brother, day night, 17th, yards March a witness three hundred west Springs Bridge river, of Miller near the heard three of screams great distress, growing a woman as if each fainter time. This passed point lights witness an automobile at said with the out night. about o’clock on that

No witness of the death of testified as to the cause deceased. The writer is of not show opinion that record does theory poison she came to her is excluded death violence. testimony. and discolored. Some body was swollen parts remaining portions of the it more discolored than the body. body, extent, was discolored. Three The entire to a certain body no evidence doctors examined and all there was testified any part any character of bruises external violence of or although Dr. poison, body; of the no there was evidence and its analysis stomach Robinson made exhaustive contents. Mcllhannon from the examination Dr. testified body what was the which he made he could not determine t;I lady’s Dr. could not young cause death. Grain testified: strangulation; by choking if if produced tell death' had been you death, you hours after had seen the case within a few condition this I I could have don’t think could tell told, testify as body I did not was in when saw it.” Dr. Robinson in which to the condition cause of deceased’s death. He testified found, that there it was found the some two weeks after he body, unless of the no unusual about the condition evidences the base of vessels at possibly sоme small blood say usual; but he could more than gorged, which were brain stating: ieI couldn’t be gorged, smaller vessels were changes.” postmortem could be positive about that because that body in which also testified condition Dr. Crain that the have been could made examination found at the time he Robinson changes. Dr. decomposition post-mortem caused or external any blow “I stated: found no evidence further poison I found scalp, skull, on the or the violence the brain also testified He stomach of kind character.” in the body; found the choke could cause condition which with head the water bridge into jump thirty feet from the 86 Texas Criminal down cause condition, would tend to the same immediately or that if after death body the head of the was lower than balance body, it would cause the same conditions. Dr. Crain testified also: “I could not body determine from the condition of the as to whether or not any attempt penetrate there had been vagina any with I instrument of kind. could not determine swelling sloughing because there was much so of the vagina say mucuous positively membrane of that I could not any tampering vagina whether there was with the or not. There bloody some blood on her but whether this was underclothing, water, serum or I don’t know. There would have to be blood to bloody make possibly might discoloration and that have been the decomposition. result bag ruptured of water had not been around the child and I removed the entire womb with the child in pregnant.” She was between it. five six months under Her clothing, veil, hair, her pins hair, the lace on her all collar and -of her clothes were in undisturbed condition. body The undertakers and doctors examined the who could not long body tell “for sure” how in the had been water or dead, probably days. bailing wrapped seven to ten wire already indicated, around her could have been done as legs, well party. her self as a third The wire was a little lower down leg other, and, toward the ankle on one than the stated, before say front, of the witnesses it was twisted in the and one witness testified to the that it was twisted on effect the left side. could have been done as well hersеlf as another. This support insufficiency evidence, In of the as viewed writer, Lovelady 545; cites State, he v. 14 Texas App., Crim. State, App., 347; 16 Texas State, Robinson v. Crim. Harris v. 549; State, Rep., Crim. Conde App., 186; 98; Rep., Follis v. 51 Texas Crim. Hunter S. W. will It be noticed that this is one of case circumstantial theory every hypothe- Under this law evidence. reasonable except must be overcome deceased came to her sis death hands of the writer is of at the defendant. The very issue, is not doubtful rule law met. under the testimony, haystack as to whether was at the defendant not, positive being his of a nature on alibi evidence theory, placed so that he that he was connection with the matter night. haystack The State’s was not at or straw stack theory was, by mother and sister of deceased, present company There is left deceased. buggy also that there an automobile and driven haystack place near the going in direction of the where the growing proposition found. out Another Porter State. is, that phase law it of this of the must be shown to the exclusion hypothesis except guilt every of reasonable of that defendant is, that her by killed she came to death the girl, violence at his were no wounds found body, hands. There on the no of fracture knife, skull, pistol gun no wounds of or shots, and in fact testimony excluded, far human as as could under idea that came she to her death any circumstances, outside as well violence. She could have committed may suicide. She bridge jumped may from the or may, have not. if She it her, was defendant with on account of the condition and relation things, had a contract him that both were to suicide, commit carry first, the- river and he she went failed to out his may of it. But whatever have been the part conditions at the they time, except are not shown as above stated. There was evi- dently struggle; any choking; no could not have heen there was head, any nothing strug- lick and there was to indicate gle any kind, hair, pins because her hair and clothing were hat, undisturbed, strangulation and it was found she die from choking. strength parties, only or The relative of the the man weighing pounds girl 120, and the had he strangle undertaken to river, or her in kill methods, her throw or her violent clothing of that Her leave evidence fact. would fiave dis- been turbed, disarranged her hair would have been and there would quite a number of circumstances unavoidably have been that would struggle occurred had there choking, have been or theory. strangulation It would than be more difficult éven to imagine placed legs the wire could be forcibly how around disturbing clothing. pursue The writer does not care without phase of the case further. Unless the State can show this girl this means that came her death violence of some some sort of a third has corpus the hands not been party, delicti may homicide, may This have been a have shown. it been a show, suicide, this does not and leaves it in more than doubt. The rule of law with reference to serious circumstantial met, non-compliance has not been and a with the evidence rules of phase of the law would debar a of the verdict guilty, judgment presents an affirmance of record it. very interesting questions presented by

There are some bills of exception. these, opinion, Some the ‍‌​​​​‌​‌​‌​‌​‌​​​‌​‌‌‌‌‌​‌​​​‌​‌‌‌​‌‌​​​‌‌​‌‌‌​​‍writer is of form the of a reversal. basis exception ruling

There are two bills of reserved to of the permitting testify Durrett and Smith to witnesses The bills substantially to tracks. are full complete, show days Durrett, finding the witness after the of the neighborhood visited the strawstaek where it is river, girl met on the supposed defendant 12th 86 Texas Criminal days of March. Some after this he and the witness Smith, sheriff county, place visited this together. Bell The bills show that they map had a of that immediate land; section and surveys of southerly somewhere direction from the haystack, three yards or four hundred perhaps, which inwas the direction of the Springs Miller Bridge, they found a track supposed made aby They permitted woman. to testify, over the objection defendant, to so finding, being something like two weeks or more after if made track, deceased, sup- posed made, have had been a rain in the mean- time, it an and was isolated track. There was no evidence that deceased made the track. Their evidence confines itself opinion their to a it was woman’s track. will be noted that It. the State’s case was a did not walk but rode in buggy from the straw- objections overruled, All stack. were and a to supposed shoe be by worn girl one of the the shoes was witnesses, handed the .they testified believed the track could have by been made objections numerous, such a were is shoe. and it not here the to -with I- purpose opinion testimony deal them detail. am of this brought It by was inadmissible. was out the State on its examina- chief, by and not contradiction of fact tion offered the Mosely State, 103, court in S. Rep., defendant. This 67 W. said: suggestion

“In case there is of any this measurements or comparison of found near place the tracks the of the homicide with place accused. The tracks near the those of the witness seen homicide then saw the foot of the accused at trial and the merely permitted opinion he as by to state his to the this identity of the tracks. We do not this should have believe permitted.” 453, Rep., language

In case Smith v. 77 W. this S. objection charged “The here witness is not was used: sufficiently definite as to the character of the tracks to authorize opinion thereof, give similarity as an but stated him to ground were of number that the tracks saw substance right shoe; impression of heel of the eight nine or by appeared ground it it was made as on the foot one off on of the heel and that the shoes which he worn side shoe morning appeared to by appellant on that be a number saw worn right nine eight number and that the heel on his shoe worn or broad appeared side. That the also to across off one shoes tapering That he did not take ball, towards the toe. ground nor of impression on the the shoes. measurements of the may In connection it be observed that witnesses examined very locality ground and state hard there and no that the apparent. tracks That a short time after discovered if great had been people number were there tracks there v„ Pobteb The State.

they would looking have been obliterated. Therefore the wit- ness’ by alone we do not believe that facts detailed him sufficiently give opinion his definite authorize him to similarity impressions ground of the on the with those of the shoes worn the defendant. was not certain as He even to the number of shoe appellant, eight worn said was an or only peculiarity suggested and the him is nine, heel of ground. impression shoe on the heel occurs to giVe opinion us that before a witness authorized to upon question similarity so vital as the of tracks as a circumstance tending charged appellant connect with the offense his should be certain than is here.” more manifested Tankersly

In Rep., 101 S. W. 234, the said: testify give similarity

“Before a witness can as to upon of tracks ground found made appellant tracks there must be some measurement taken tracks or some fit- ting upon ground into the tracks ap- found of the shoes of pellant, or peculiarity must be in the tracks found upon ground corresponding belong shoes known to to tracks known or admitted have been made him.”

In question these cases the turns sup- admission of tracks posed to made by accused, have been in wherein instant case was supposed by it tracks to have been made deceased. That would make no application difference in principle. This important question. indicate, was an if This this was the girl, walking track made that she was in the direction of was later found. She in buggy rode if might argued the State’s contention While is true. it be that there were no other except supposed tracks there the one to have her, made and the not defendant was with girl, this change would not testimony the error in admission it might affected defendant. In this we Ballinger connection also cite State, 144 S. W. 91. certainly witnesses These were not They qualified testify regard gave matter. this by testifying criterion to the conclusion that this was a woman’s might track, track, especially be a woman's it awas might track shoe them exhibited to fit it. and no rule of Under no.case evidence that has been called to the testimony against of the writer could this be used attention accused.

Appellant exception also reserved to the of Julia regard I Miller and Prank Tulloch to letters. am of these letters, and the with reference to them were not admissi- They testify girl not undertake to wrote ble. Quoting letters, оr from the testimony received them. he I Julia Miller: “Since Willie Porter married seen a have letter 86 Texas Criminal possession of Miss Staley Emma Porter, addressed to Willie Route Texas, stamped Belton, and mailed by her at Belton. That was about two marriage. months after his I don’t remember ' whether or postoffice not his Belton, address I is Route do anything not know happened about it. I to see the letter because (cid:127) I came over town with she had it with her. We came to town on that buggy occasion in her I saw the letter on the way to town and not before left I we her home. do not know handwriting whose it was I addressed in. am familiar Miss Staley’s handwriting.” Emma The witness Tulloch testified as prior follows: “It seems that 21st, to March through there was a letter went addressed to Will Porter, 7, Belton, Texas, Route I say but what box it do say I came nor cannot I up about when took letter, but prior it was Staley death of Miss before was found in the river and within six taking months of that time. In up the pouch mail we have our before us and we take letter from the properly box and we if it examine it to addressed to the see town stamped pouch State and handle it in and we until returned to office. We count the do not now, mail every count thenf month. The letter addressed to Willie Porter was left postoffiee.” agent

It seems Prank Tulloch was a mail route or carrier.. sundry objections urged testimony. There are various to all this up testimony, my judg These will not taken This seriatim. In ment, Taylor was not admissible. the case of 47 Texas Rep., 101, language: find Crim. we “Letters not shown to written, response have been introduced or received defendant authority to those written himself or under are not admis This matter was not but was hearsay, sible.” gestae, res rule, any my known of law been called to admissible under that-has is it shown that defendant Nowhere the record attention. knowledge letters, received them. of said or that ever What reception of a letter is with reference to the from her evidence there Hollingsworth positive case, is a denial. In the by defendant may may question when letters Rep., Crim. not be Texas the or shown to have admitted, are received even re by Judge ceived, fully Harper оpinion in an was discussed Judge Prendergast rehearing, which the writer concurred, question appeal came in the second of The same the dissented. is Rep., 80 299. It also Hollingsworth case, Texas Crim. referred 626. Hollingsworth Rep., 199 W. Under case, S. these au to reference to these these statements witnesses the thorities shown even inadmissible. It was not "deceased letters were to were testified not the that Tulloch letters. letters wrote way being letters to the identified Julia even State, 57 Porter v. Miller testified, and it nowhere shown that received letters, these and when called to his stand, attention on the witness by is shown that he did not receive letters the and had no communication with deceased and no corres- mail, pondence. important

There is question which, another it occurs the to writer, clearly Porter, reversible. defendant, Pete brother of was used as a witness prove the defendant to an alibi. To this the witness testified as did other witnesses. The alibi related to disappearance girl, to-wit: the 12th March. The girl was found 21st of March. On 21st, 22nd, morning or rather the 2 or 3 about o’clock morning, up the sheriff rode in. to residence Pete Porter living, where defendant if and asked Porter Pete where Mr. Sandford wrong road, lived. He told him he was on the he then if asked there, Willie Porter was and was informed that permitted he was. The sheriff testify then was further Porter him, anybody Pete asked "Is there out will Will hurt Porter?” brought This was out the State on cross- examination of Pete Porter. Pete Porter denied statements. Smith, Mr. sheriff, placed upon per stand was then mitted, objections testify over appellant, that the conversation urged did occur as Objection indicated. for and sundry various I reasons. am of objections should have these been sus brought tained. When this matter was out it made State regard witness a State’s It witness. matters about which witness; questioned the defendant had it was new matter, making when the witness Porter denied the statements, testimony. matter should have ended. but a failure of nothing witness against State, had testified and to no fact possibly State; injurious being could be the State’s witness, the ended, per matter should have and the issue, and, mitted. This was a collateral matter to the main there fore, subsequently his answer could not contradicted State, 473; State, Rainey App., 20 State. v. Texas Crim. Drake v. 265; McCray State, 170; 44 App., Rep., 29 Texas Crim. v. S. W. State, 85 Rep., 783; State, Hall v. Brittain v. S. S. W. W. 278; State, Rep., 117, v. Rep., Holland 60 Texas Crim. 131 S. Rep., W. of this

Again, quite there are a number of decisions attempt impeach proof the effect that make its failure impeaching witness, ground is no witness. Bennett v. own 73; Dunnagain State, App., State, v. Texas Crim. Texas 614; 520; Scott Rep., Rep., Smith v. Crim. 164; State, 43 Rep., 52 Texas Wells v. Crim. Crim. Crim, 14; Rep., Hanna State, 46 Texas 451; Owens v. 58 86 Texas Criminal

State, 46 Rep., 5; State, 49 Rep., Texas Crim. Ware v. Texas Crim. 413; 39; Quinn State, Rep., State, Skeen 51 Texas v. v. Crim. 155; Rep., 51 Rep., State, Texas Crim. W. Shackelford v. 27 S. Finley 8; Knight W. State, Rep., 1015; v. 47 W. v. 65 S. S. State, Rep., 88; 471; Kessinger State, 29 State, Rep., Gibson v. S. v. W. 519; 71 597; Rep., S. W. Erwin v. 32 Texas Rep., State, Crim. 414, 761; v. 37 Rep., Rep., Williford 36 Texas Crim. S. W. State, 927; State, 106, Rep., Ozark v. 100 S. Rep., 51 Texas Crim. W. 424; 394, Rep., v. 37 State, Rep., Johnson 36 Texas S. Crim. W. 280; Largin 574, 40 S. State, Rep., v. 37 Texas Crim. W. Rep., State, 70; Thomas 57 State, App., v. 14 Texas Goss v. Crim. I 557, Rep., Texas 124 107. this is Rep., Crim. S. W. think support proposition above asserted sufficient number of cases to further witness cross- without collation. That defendant’s regard examination to new matter becomes State’s witness matter, supported by great authorities, to that is number of if the State to elicit the desired it is but a mere answer, fails impeach permit failure and it is error State to proof, make to. same, by wit by proving the witness as to such new matter . get testimony jury. hearsay nesses and manner before 42 777; State, 25 State, Rep., Vaden v. S. W. Woodward v. 35 Rep., 188, Rep., 135; State, 58 W. Owens v. Texas Crim. S. 345, 875; State, 35 Rep., Texas Crim. 33 S. Paris v. W. Rep., 855; Casey State, 31 49 82, Rep., Texas Crim. S. v. W. Rep., 1018; State, 22 174, 90 Johnson v. Rep., Rep., Crim. S. W. Texas 609; State, 53 S. 2 v. App., Rep., Texas Crim. S. W. Gaines 206, Rep., 108; v. Rep., 623; Maroney 95 S. W. Hart State, W. v. 202; State, v. App., 15 27 S. W. State, Texas Shackelford Crim. 265, 8; Rep., 29 15 Rep., State, App., S. W. Drake v. Crim. Washington 725; App., State, Texas Crim. supported au proposition by numerous amply is another

There permit impeach it is error to thorities to the effect that State witness, or evidence proof, by admission of the a witness either both, lays acts, or predicate that the words or witness Cogdell guilt. expressed an defendant’s State, 43 645; Morton v. Rep., 63 S. W. Texas Crim. Rep., 115; Vann v. Rep., 533, S. W. Texаs Crim. unnecessary to cite deems Rep., 434. writer testimony was opinion this writer is of further authorities. limit charge defendant, and that the injurious by settled It is well could not cure the error. ing this evidence illegal line Texas that of authorities unbroken charge court’s can be cured admitted, effect of it erroneous, of it the effect illegal limiting its effect. to make it charge the court as so directed cannot be for one of admitted legal. This could have 1919} v„ Portee State.

two purposes, either to and his discredit the witness affect credibil or as ity, a fact that witness this believed that his brother was guilty something law, in that was this con violative of the infer, nection jury did, the would Pete Porter doubtless that was party afraid of the after Willie Porter in that some particular connection with this It tend to matter. would also in duce jury the to had believe that Pete Porter testified the witness falsely testimony his generally, especially about reference with appellant’s alibi to on the of March It would also 12th. tend jury something to lead the that the witness knew believe about deceased, the of the murder and the inference be that would defendant, he received information from there was no this the testimony showing any way that Pete connected Porter was girl. the used'by This matter could the not have State as original testimony, is, that the of the that statement sheriff Peter imputed Porter made the would not statements him. be evidence, contended a original for moment that be would if not, a impeachment under well rule settled the of the witness would not be admissible. The matter would be of collateral nature. case, This was decided Drake’s Texas Crim. App., testimony

There another bill reserved to the admission of the of Dr. undertaking prove Crain. The State was as best it could girl that the came to her death at hands violence of some- body, congestion and asked Dr. Crain with reference brain nothing of deceased. it, Dr. knew about Crain made statement to effect that heard Dr. he had Robinson congestion had brain, said that there was if that was true, girl maybe could did by have come to her death or this, strangulation choking. urged objection or Serious stated, Dr. had Dr. Robinson not so Crain himself said Dr. only him; sо, Robinson he had had not so stated to heard might and if what he heard was evidence true, it testimony strangled. fact that choked went or jury. placed Dr. upon Later Robinson the stand denied making statement, whereupon, defendant, such on motion of the testimony withdrawn, it but had remained for some time before this occurred. withdrew before The court my testimony statement, judg- after Dr. Robinson made but sufficiently ment this did not cure this error to render it harmless. great original cited in opinion A number cases to support are ruling court, examination of the the writer does not applicability coincide with that statement on of the cited instance, case, eases. For the Miller Texas Grim. 609 is opinion cited. The writer wrote in the In Miller case. particular bearing upon case there was adduced collateral matter which did not connect tend to defendant with Criminal and its introduction

the homicide. It was of a collateral nature, killing prove guilt not of the defendant prove tend testimony of Dr. Crain was deceased. In the instant ease directly case, the death upon the main in the issue choking girl the hands some one occurred violence strangulation. being upon a case, So it was held in the Miller require a importance to matter, not of collateral it was sufficient “It reversal, connection that: recites may in which the not arise that cases intended here to hold committed error withdrawal cure was of same; may such evidence admitting the for it occur that jury against prejudicial to so influence the such character as impartial a fair and deprived that he defendant would be holding. testimony that trial.” The admission of this comes within facts, strong- upon Crain, of Dr. if based tend The statement girl came to her ly prove is, that corpus to that delicti, strangulation doctor stated. by violence, choking or as the death therefore, was, upon one purpose, It was and introduced that not care points in the case. The writer the most crucial does. testimony to have been is conceded to follow this further. This The and erroneously trial withdrawn. admitted court, testimony did not is of that withdrawal of writer brought way and the error. This is intensified anоther cure This to the court’s attention below. withdrawn argument appellants ob- the State over used counsel for jection.. This -was also error. per- exceptions ruling

A bill of reserved mitting prove through the State to the mother and sister night deceased statements made she left home. dressing and she, it herself while substance hay- making arrangements going home, leave said she was Nolanville, go from there stack defendant with him meet the and sister Angelo. In this connection mother and thence to San arranged clothing herself, both hair prepared testified that she they laundry bag clothing, accompanied filled haystack results, to watch her near the and secreted themselves buggy met the hitched it near came defendant deceased, they left, and that is talking with her after while from they was taken last saw of her until after and matters 21st of March. All these conversations Leon river on the had closed If these statements the 12th March. occurred on hay- they say with her to the point women went at the where the might have been error. come, defendant stack and saw purpose now to writer’s dis- is not the However, phase of it going defendant were she and cuss, but to admit the statement Angelo, writer, in the mind and thence to San Nolanville, purpose party may state his That a clearly erroneous. v„ Porter to some place, doing something, taking it affects some action when him and purpose, question is not the It is here at issue. where party makes a about whom the party statement that affects the statement way, made in as to a criminal and in such manner connect him criminal inad with some transaction that renders may missible and it be also stated, as the writer understands rule, that imputed statements of the character to the deceased here girl directly flatly contradictory of the defendant’s de matters, fensive himself, person to-wit: alibi. He denied testifying behalf, in his own haystack that he went to the or saw girl agreement night, to meet her at haystack, and did not proved meet her. He other witnesses and other there, night, that he was not and did not leave home that and it is conceded that his home was about ten miles where the girl lived and meeting haystack. where this occurred at the rule, stated, writer understands the before be that statements of this character cannot be introduced, when made in the absence of attention, the defendant and not called to his and about which he is ignorant, against as criminative facts contradict him, theory. his defensive I understand that to be the rule under decisions of this many and under of the decisions cited and ' original relied opinion. To opinion, take the Bazano 60 Texas Rep., 507, by Judge Crim. written example as an Ramsey, proposition of the I announced; have that was a homicide cas» opinion That recites: “The first permit is that the court erred in ting witness, objection Mrs. Dunlap, Albert over the of defend ant, testify to as Denny to movements and actions of deceased, on,the thereto, Harris, day prior of the homicide and because said presence actions and not in appellant movements were no showing any knowledge there was that he of said actions and of Denny Harris, appellant movements could not be charged knowledge with the of such movements and causes there of. This witness testified in that deceased substance left her house morning killed; about 11:30 o’clock the he was that he came daughter; stopping horse; where she was with her that he had a lead George going that he out Foreman’s stated he was to to take the there, going get horse and that he to the next house to a appears facts, objected it This, saddle. the statement to present not for the reason movements day charged cannot be him Harris on that to and is no evidence against explanatory presence him. The of the of the place quite was killed, deceased at the where he which was a distance place mother him, from the where his saw was mere matter actions, The eases in and in inducement. which the declarations against are held not to be admissible tentions of a decedent de them, always has to notice of limited eases has no fendant who case, issue of self-defense arose in the and where such where the Criminal acts and movements of could to hostile the deceased be held be their character, right upon and where such defendant had a to act apparent hostile movement Mm if the rule might, towards ’’ permitted it, judge says; be innocent. then shown be fact have, “It can tM'nk, application this, we to such ease as objection wholly objection untenable.” The finds no writer to that under acts They proving the facts stated. and movements of the deceased before It not im- the homicide. pugn defensive matter set up As the writer defendant. recalls that it That case, insanity was one and not self-defense. lays case rule, applies down the as the it, here writer understands impugned that if the statement made the defensive of the matter accused, it would inadmissible. The facts of the two cases are not be alike, readily agree but the will proposition writer that where way apply statements of the could in no the defendant Mm, impugn incriminate directly, defense, his or whether it might not, of a be admissible or be reversible nature. As go purpose it is not the of the writer here to into state- before stated ment of those matters that did not tend to connect defendant criminally They might with this proved transaction. have that she going haystack, stated she was supplemented proof that the daughter mother and went in that neighborhood, but that is not the question matter discussed. The is, here here that she stated facts that put way, may defendant in a criminal her with the be used very strong criminating against against fact him and his defense knowledge is a- matter he had no alibi. about which' under his theory. hearing, presence not made in Ms nor was it ever It was brought may possible attention. There eases, be however, accord, expressed might great with which the views here but the especially I weight authority, rule, Texas, understand the girl would exclude the statement that she meet go Angelo. Nolanville, with defendant and thence to I San question. do not care further to discuss To the mind of the inadmissible, question a vital writer such statement was the case. rehearing ought it, I the motion for granted,

As view aside, and the accorded a new trial in ac- set affirmance judgment writer to be the ‍‌​​​​‌​‌​‌​‌​‌​​​‌​‌‌‌‌‌​‌​​​‌​‌‌‌​‌‌​​​‌‌​‌‌‌​​‍what the believes cordance with law. and the cause remanded. ought be reversed

Case Details

Case Name: Porter v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Jun 26, 1918

Citation: 215 S.W. 201

Docket Number: No. 4833.

Court Abbreviation: Tex. Crim. App.