Rainey v. State, 20 Tex. Ct. App. 455

Rainey v. State

20 Tex. Ct. App. 455 | Tex. App. | 1886

White, Presiding Judge.

1. On the cross-examination of Davis, the justice of the peace, a witness for the State, defendant’s counsel had asked him “ who, if any one, requested you to issue the writ of attachment or citations?” He answered “ J. D. L. Johnson, the deceased.” On re-examination by the State as to this point, the xvitness was asked “What was said by Johnson when he requested the issuance of the xvrit and citations?” and he answered, “Johnson said they wanted them renexved.” Which question and answer were objected to by defendant. If the matter had been allowed to remain in the attitude it was made to assume by the question asked *470and answer elicited by defendant, the inference would have been that Johnson, the deceased constable, of his own motion and without authority from the parties at interest, procured through officiousness what they alone had authority to demand,— a re-issuance of the writs. To avoid this imputation, a further explanation of Johnson’s acts and declarations became necessary, and the testimony sought and elicited in rebuttal by the State came within the well settled statutory rule that when part of an act, declaration, etc., is given in evidence, the whole may be required. “ And when a detailed act, declaration, conversation or writing is given in evidence, any other act, declaration or writing which is necessary to make it fully understood or to explain the same, may also be given in evidence.” (Code Crim. Proc., art. 751; Shrivers v. The State, 7 Texas Ct. App., 450; Pharr v. The State, 9 Texas Ct. App., 129; id., 10 Texas Ct. App., 485; Sager v. The State, 11 Texas Ct. App., 110; Green v. The State, 17 Texas Ct. App., 395; Penland v. The State, 19 Texas Ct. App., 365.)

2. Objection was made to the introduction in evidence of the original writ of attachment, the objection being that a certified copy of the papers and writ was the best evidence and onty proper proof. The rule is otherwise. “ Whenever a statute requires that a record should be kept by law, then the record is proper evidence of such acts, and the acts can be proved primarily only by the record.” (1 Whart. Ev. (2d ed.), § 65.) This is the general rule. Under our statute, “copies of the records of all public officers and courts of this State, certified under the hand and seal (if there be one) of the lawful possessor of such records, shall be admitted as evidence in all cases where the records themselves would be admissible.” (Rev. Stats., art. 2252.) This statute is cumulative and not restrictive; it does not affect the rule or right as to the admissibility of the originals as evidence.

3. After the State had been permitted to introduce the writ of attachment, defendant offered in evidence the affidavit and bond upon which said attachment was issued, and, when objection was interposed, proposed to establish later on by other witnesses that Johnson, the deceased, knew of the defects in said affidavit and bond which rendered the writ of attachment he was attempting to execute worthless and illegal. In Tierney v. Frazier, 57 Texas, 437, our supreme court quote with approval the rule announced by Mr. Justice Cooley in his work on Torts, to the effect that “when an officer knows that back of process fair on its face are facts which render it void, he is nevertheless protected in serving it;” and Judge *471Cooley’s conclusions upon the subject are copied in these words: “ It seems to us, therefore, that the weight of authority and of reason is clearly in favor of the proposition that the officer may safely obey all process fair on its face, and is not bound to judge of it by facts within his knowledge, which may be supposed to invalidate it.” . The action of the court in excluding the proposed evidence seems to be in harmony with this doctrine.

4. Defendant proposed to prove by his wife that, some four months before the homicide, one McGhee and wife came to their house, called defendant out, presented two six-shooters at him, caused him to kneel down, and that McGhee held his pistol pointed at him whilst Mrs. McGhee whipped him with a quirt until his back was black and blue from the waistband to the top of his bead. That in consequence of this treatment and other threats and acts of violence, defendant and family abandoned their home and moved to the Indian Territory. This testimony was offered by defendant in explanation of the fact proven by the State, that, when defendant came out of his house and first met deceased, he came with a gun in hand, which caused Johnson to remark to him: “Old man, you look like you were on the war-path,” and defendant replied, “ I have been whipped and beaten like a dog, and had to leave my home, and I want to know a man’s business when he comes here.” In view of the facts that Johnson told him his business,— that his business was legal and in discharge of his, Johnson’s, official duties,— that the homicide was committed some time, perhaps more than an hour, afterwards and some miles distant from defendant’s home, we cannot see what appreciable weight or bearing the proposed evidence could have upon the transactions connected with the killing, or what light it could throw upon the issues involved in the case. Under the facts its exclusion could not certainly have affected the merits of the question of defendant’s guilt or innocence with reference to the homicide.

5. Defendant’s seventh bill of exceptions shows no merit. But one remark was heard by the witness, and consequently he could not state either the conversation or the substance of the conversation between the parties. He was properly allowed to testify to the only thing which he did hear, to wit, the remark of Johnson to defendant, “Old man, you know I can’t bear to see you take this wagon across the river.” “It is sufficient, when the spoken words of another are to be testified to, to give their substance.” (Whart. Crim. Ev. (8th ed.), § 461.) Because a witness does not hear the whole of a conversation is no reason for the exclusion of that portion of it which he did hear.

*4726. When defendant was brought into court for trial he was chained in a gang with several other prisoners. The court promptly instructed the sheriff to remove the defendant’s chains after he had been brought in and seated within the bar. His counsel saved an exception to the action of the sheriff as illegal and calculated to prejudice the defendant before the jury. In explanation of this exception the learned trial judge says, “ the sheriff deemed it unsafe to deal with the number of prisoners he had to bring out, without chaining them together, and the chains were removed by my orders as soon as I saw they were in the court room.”

Mr. Bishop says: “It was long ago resolved that when prisoners come to the bar to be tried their irons ought to be taken off, so that they be not in any torture while they make their defense, be their crime never so great. Though the rule at arraignment where only a plea is required is less strict, a prisoner at trial should have the unrestrained use of his reason and all advantages to clear his innocence. Our American courts adhere pretty closely to this doctrine, yet deem that in extreme and exceptional cases, where the safe custody of the prisoner and the peace of the tribunal imperatively demand, the manacles may be retained.” (1 Bish. Crim. Proc. (3d ed.), § 955.)

In The State v. Kring, 64 Mo., 591, the court say, “it seems very clear that without some good reason authorizing the criminal court to depart from the general practice in England and in this country, the shackles of the prisoner, when brought before the jury for trial, should be removed.” And again: “ When the court allows a prisoner to be brought before a jury with his hands chained in irons, and refuses on his application, or that of his counsel, to order their removal, the jury must necessarily conceive a prejudice against the accused as being, in the opinion of the judge, a dangerous man and one not to be trusted even under the surveillance of officers. Besides, the condition of the prisoner in shackles may to some extent deprive him of the free and calm use of all his faculties.” (See same case, 2 Amer. Crim. Repts. (Hawley), 313. See, also, 58 Ala., 74; 10 Lea (Tenn.), 673; 109 Ill., 189.) In the case before us the sheriff acted properly in chaining the prisoners if he deemed it otherwise unsafe to bring them from the jail to the court foora; and the judge’s action in having the chains removed from defendant before he was placed upon trial was eminently correct and proper.

7. It appears that this defendant and one J. E. Bainey were jointly indicted in one indictment for the homicide. After the jury bad retired to consider of their verdict in this case, the case of J. E. Bainey, who had severed from this his co-defendant, was called *473for trial, and in order to arraign said J. E. Rainey the indictment which the jury in this case had taken with them in their retirement was sent for by direction of the court, and the defendant J. E. Rainey was duly arraigned upon and pleaded to said indictment,— the jury in this case not knowing the purpose for which it was to be used. Eo error is shown in this action, nor any possible chance either of injury or prejudice to defendant.

[Opinion delivered March 3, 1886.]

There are two other bills of exception in the record, but they do not in our opinion show sufficient merit to require discussion. There are certain ex parte affidavits and documents annexed as an addenda to the transcript, with regard to the statement of facts, and calling in question the action of the trial judge with regard to the statement of facts. These papers are not properly a part of the transcript, and on motion oj the assistant attorney-general are stricken out and will not be considered.

It remains only to remark that the charge of the court was a full and able exposition of the law of the case, and that the evidence amply sustains the verdict and judgment of conviction. A zealous and faithful officer of the law seems to have been murdered by defendant and his son, whilst in the discharge of, and solely because he was endeavoring to discharge, his sworn duty as an officer.

The judgment is affirmed.

Affirmed.