143 S.W. 167 | Tex. Crim. App. | 1911
Lead Opinion
Appellant was indicted, charged with the murder of Sebastian Collins. He was convicted of manslaughter, from which judgment he has appealed.
It appears from the record the deceased was intimate with the wife of defendant, whether criminally so or not is not disclosed by the record, but the intimacy had caused the separation of defendant and his wife; defendant believing the relations were improper. For some time before the killing, the defendant and deceased were on unfriendly terms. Defendant and two or three witnesses testify that deceased had made threats, and defendant testifies that he thought deceased was attempting to carry the threats into execution when he shot and killed him. The witnesses for the state testify there was to be a lodge meeting at the Temple building that night. Deceased said to a witness he thought he was going to apply for membership, when witness replied he had no application. Deceased remarked he would get an application, and started towards the stairway, when the shooting began. Deceased had no weapon, but had some papers in his hand.
Bills of exception Nos. 5, 6, 7, 8, 9, and 11 all relate to the impeachment/ of the defendant’s witness Will Vaughn. Vaughn testified for the defendant that deceased, Collins, actually carried a pistol, and often left it at his barber shop,. and had left it there the morning of the day of the killing; that late in the afternoon deceased came to the shop and got the pistol. Before leaving with it, he had asked witness for oil to clean his pistol. He let him have it and deceased took the pistol to pieces and cleaned and oiled it, when the witness says the following conversation took place: “During the time that he was oiling the gun, I asked him his object for oiling up. ‘Old boy, you kind of fixing up a little, aren’t you?’ and he says: ‘Ves; I am expecting to use it.’ I says, ‘You think you will go out shooting at target practice?’ He says: ‘No; I don’t.’ He says, ‘Renn has said something to me I don’t like, and I am going to whip him to-night, or kill him.’ 1 says: ‘Collins, the very idea you talk that way! I am ashamed of you, knowing how close you are, even to have to talk like you would even do a thing like that. Would you infringe on my feelings, me a friend like I am?’ He says: ‘That doesn’t matter. My mind is ready composed, and I will not be deposed.’ ” The witness testified that Ruby Morrow was working for him, and was present when this conversation took place with deceased; that he told defendant, Renn, about this conversation the same evening, and only a short time before the shooting. On cross-examination, he was asked if he had testified that the name of the girl who was there was Ruby Morrow, and he answered: “Yes; I said that was the girl” — but he added that he had six or eight girls there during the year. He was also asked if, on the night of the killing and a short time thereafter, he (witness) had not told Nick Lightfoot that “Renn had killed Collins, and that Renn [defendant] was in his barber shop that evening, and had told him [Vaughn] that he was going to kill Collins [deceased] that night,” which statement witness denied. He was also asked if, subsequent to this time, in the presence of Mr. Wilkinson and Ed Loving, he did not deny making the statement to Lightfoot, and at said time said “he did not know anything about the case at all,” which statement was denied by the witness. He was also asked, on cross-examination, if the following conversation did not take place between witness and Renn, in the presence of Adam Sims: If a short time before the killing Ellis Renn (defendant) did not walk into his (Vaughn’s) barber shop, and say: “I have made up my mind-to do it. I have just got to do it” — and witness Vaughn replied to Renn: “Well; you can have my last dollar.” All of which was denied'by the witness. Again, on cross-examination, he was asked if, in the presence of the said witness, he did remark when the shooting was heard, “I guess that is Renn now.”
In rebuttal, the state was permitted to prove by B. H. Morrow that he was the father of Ruby Morrow; that she was dead, but at the time Renn killed Collins she was not in Vaughn’s shop in Ft. Worth, but was in McGregor, Tex., teaching music; and proved by Nick Lightfoot that Vaughn, on the night of the killing, had told him that “Renn had killed Collins, and Renn had told him (Vaughn) that he was going to kill Collins that night;” and by Sims that he was present and heard Renn (defendant) tell witness Vaughn: “I have made up my mind to do it. I have just got to do it” — and Vaughn said to him, “Well, you can have my last dollar.” and at the time of the shooting remarked,
Appellant says: “(1) It is not applied to nor limited by the facts in evidence in this case. (2) It is but the statement of an abstract principle, instead of being put in a concrete form, and explaining the defendant’s rights in this particular case. (3) This charge tells the jury that the defendant has the right to stand his ground, and even to advance on his adversary. (4) Said charge tells the jury that defendant has a right to continue to act in his self-defense, until the danger or apparent danger is past.”
It will be seen that the court could not have erred as complained of in both the eleventh and nineteenth grounds of the motion. The court gave in the main charge, in nearly the exact language, the law as requested in the special charge; and, while we think there was no error in the charge as given, yet, if error there be, the appellant invited the court to give in charge this principle of law, and he cannot now be heard to complain.
In this case the jury by their verdict find all the issues of fact in favor of defendant, except that it reasonably appeared to him his life was in danger. The state insisted that it was a ease of murder; while it was defendant’s contention that it could not be more than manslaughter, by reason of the circumstances antecedent to the killing, threats, etc. The appellant testified to conduct on the part of deceased which, he says, led him to believe that deceased was then and there about to carry the threats into execution. The witnesses for the state, and some of the -witnesses for appellant, testify deceased had no weapon. The eyewitnesses testify to no conduct on the part of deceased which- would justify appellant in killing Collins.
The judgment is affirmed.
Rehearing
On Motion for Rehearing.
This case was affirmed at a former day of this term, and appellant has filed a brief and an able argument, in which he strenuously insists that the court erred, and that the case should be reversed.
We will first discuss the question presented in appellant’s argument, as he doubtless deemed them of most importance. As shown in the original opinion, while appellant’s witness Will Yaughn was on the stand, the prosecuting attorney asked some improper questions, the first of which was how many times the witness had been arrested for whipping his wife; the second, how many times the witness had been arrested for adultery; and the third, had the witness ever been arrested for an aggravated assault on his wife. Appellant objected to these questions, and the court promptly sustained the objections made. This witness had testified, in behalf of defendant, that the evening of the homi-side, deceased had come to his barber shop, oiled and cleaned his pistol, and told him he was going to whip or kill appellant that night; that he informed appellant of his statement or threat the same evening. The witness did not claim to have seen the shooting, or any part of it, nor any of the immediate acts leading up to it. The questions were not such as could or would prejudice the jury against defendant; but appellant insists that they were such as would cause the jury to believe that the witness was guilty of the offenses named, or appellant would not have objected, and thus have a tendency to impair the effect of his testimony. We do not think this the necessary or natural result of such questions. If the court sustained the objections, as he did in this instance, would not appellant’s counsel insist before the jury, and would not the jury naturally conclude, that if the state, by improper and illegal means, was seeking to impair the force of the witness’ testimony that the testimony was cogent and forceful, and the state could not legally impair its effect, and for this reason consideration would be given it? Where the trial court promptly sustains the objections when improper questions are asked, it has never been the policy of this court to reverse the case, unless the conduct of the prosecuting attorney was such as to render it inevitable that the mere asking of the question was calculated to injure the defendant, and in this instance, the questions being such that, while, if the witness admitted being guilty of the offenses inquired about, they might injure his standing in the community, they would not necessarily imply that his testimony was unworthy of credit. In the case of McCorquodale v. State, 54 Tex. Cr. R. 357, 98 S. W. 883, the prosecuting attorney asked a witness for the defendant, “Now, is it not a fact that defendant is an old poker player?” Objection was made and sustained, and the court, speaking through Judge Davidson, held there was no error, as there was no testimony admitted before the jury. See, also, Howard v. State, 37 Tex. Cr. R. 498, 36 S. W. 475, 66 Am. St. Rep. 812; Alexander v. State, 21 Tex. App. 406, 17 S. W. 139, 57 Am. Rep. 617; Williams v. State, 30 Tex. App. 367, 17 S. W. 408; Terrell v. State, 25 S. W. 769; Harding v. State, 60 Tex. App. 327, 131 S. W. 1092; Doss v. State, 50 Tex. Cr. R. 48, 95 S. W. 1040; Powell v. State, 50 Tex. Cr. R. 592,
The next criticism is that this court erred in the statement: “There was a sharp conflict in the testimony between the witness Vaughn and witness Sims on who it was that came in the shop and made the remarks attributed to defendant by Sims, and to deceased by Vaughn.” We might have been inaccurate in the use of the word “statement,” instead of the word “threats,” but not in the conclusion that there was a sharp conflict in their testimony. Vaughn testified that deceased came into his shop, cleaned his pistol, and said he was going to whip or kill defendant. Sims says deceased did not come into the shop that day, and had not been in it for several days; and Sims further says defendant did come in, and said: “I am going to do it. X have just got to do it.” When Vaughn replied, “Well, you can have my last dollar.” Vaughn denied that appellant made any such remark. So it is seen that Vaughn testifies to a threat made by deceased, which Sims says was not made; and Sims testifies to a threat made by appellant, which Vaughn says was not made. Vaughn says deceased was in the shop; Sims says he was not in there that day; and if there is not a direct conflict in the testimony of the two men we cannot understand the statement of facts. And this is followed in appellant’s argument by a criticism of that part of the opinion admitting the testimony of the witness Lightfoot, who testified that shortly after appellant had shot and killed deceased he met the witness Vaughn, who told him that appellant, Renn, had killed Collins, and appellant had told him (Vaughn) he was going to do it. The witness had testified on the trial to a threat made by deceased, and denied that appellant had made any threat in his presence, when he was asked, if, shortly after the killing, he had not made the above statement to Lightfoot, which he denied. Lightfoot then testified that he had so stated to him. That this is material cannot be denied. The state’s witness Sims was testifying that appellant was in the shop and making threats against deceased. The defendant’s witness Vaughn was testifying that deceased, Collins, was in the shop making threats towards appellant, and appellant had made no threats. On the night of the homicide, Lightfoot says that Vaughn told him that appellant had killed deceased, Collins, and had told him he (appellant) was going to kill deceased. As to the reason why the witness could not be thus impeached, we fail to understand. In the ease of Drake v. State, 29 Tex. App. 272, 15 S. W. 728, which has been termed a leading case, this court says: “If, in laying the predicate to impeach the witness Drake, Jr., he had been asked, ‘Did you not state, in the presence of Hugo Robinson, Street Bacon, Bob Fleming, and Todd Ziegler, on the evening or night of August 27,1887, the day that Guinn was shot by your father, and at or near the store of Chas. East, in Waco, that your father told you on that morning before the homicide that he was going to kill Guinn?’ the question would have been proper, would have been as to a fact relevent and material to the main issue — a fact with respect to which the witness could be impeached by proving that he did make such statement.”
This disposes of all the questions in appellant’s brief. However, in the motion for a rehearing several other questions are assigned, but no authorities are cited sustaining his contention; the next ground being that the court erred in remarking: “I think the witness is doing the best he can.” This question is treated fully in the original opinion, but for additional authorities see Mitchell v. State, 51 Tex. Cr. R. 71, 100 S. W. 930; Cole v. State, 51 Tex. Cr. R. 89, 101 S. W. 218; Waggoner v. State, 98 S. W. 257.
Mr. Wharton, in his excellent work on the Law of Evidence, lays down the rule (section 408): “One of the advantages of cross-examination, as we shall have occasion to see more fully hereafter, is that it enables the bias of a witness to be disclosed, and this is peculiarly important where interest is no longer a ground for disqualification. We should at the same time remember, however, that pecuniary interest in a casé is by no means the only influence by which bias is produced. Relationship, party sympathy, personal affection, work upon the perceptive powers of witnesses more subtly and more effectively, in the great body of cases, than does pecuniary interest; and it is by no means creditable to the English common law that it regarded the less, honorable influence as so powerful that the interest of a single penny would incapacitate, while it so little appreciated the force of the nobler affections that in only one case — that of marital relationship — did it recognize their existence. Now, however, that all disqualifications are removed, and that proof of interest goes only to credibility, influences of all kinds are equally objects of consideration, in determining how far credibility exists. Credibility, therefore, so far as it depends upon the capacity for accurate narration, is now relieved from the obstructions produced by the old rules, and is determinable by the ordinary laws of free logical criticism. The question now is, not whether a witness is to be received, but how far he is to be believed. Interest and party sympathy may be always shown in order to discredit a witness, and the same observation may be made as to near relationship.” And in section 545 he says the witness may be required to explain whatever would show bias on his part, citing authorities from almost every state in the Union.
In the American and English Ency. of Law, vol. 30, p. 1088, the rule is laid down: “The fact that a witness manifests a bias ox-partiality for the party who calls him is a proper matter for the consideration of the jury in estimating the value of the testimony, and it is a general rule that on cross-examination any fact may be elicited which tends to show such bias or partiality. If the witness denies the facts showing bias, the cross-examining party may call other witnesses to contradict him.” This is the rule adopted in Texas, so far as we have been able to ascertain from the reports. Magruder v. State, 35 Tex. Cr. R. 214, 33 S. W. 233; Daffin v. State, 11 Tex. App. 76; Ashlock v. State, 16 Tex. App. 13; Crist v. State, 21 Tex. App. 361, 17 S. W. 260; Jenkins v. State, 34 Tex. Cr. R. 201, 29 S. W. 1078; Sims v. State, 38 Tex. Cr. R. 637, 44 S. W. 522; Clark v. State, 43 S. W. 522; Webb v. State, 58 S. W. 82; Pace v. State, 79 S. W. 531. Judge Davidson, in the cases of Earle v. State 142 S. W. 1181, and Pope v. State, 143 S. W. 611, decided at this term, of court, discusses at length this question, and those cases are here referred to as showing the admissibility of this character of evidence to show the feeling and bias of the witness. In those cases he cites many authorities, and we do not deem it necessary to again cite them,
The statement that the witness Vaughn said appellant had told him he was going to kill deceased is admissible, under all the authorities, as is also the statement of the witness Sims, that he heard appellant make a threat, and we think it equally clear that when appellant made this threat that the witness Vaughn replied, “You can have my last dollar,” and the other statements attributed to him were admissible as showing bias and friendly regard for appellant, as going to the weight of his testimony. All of this testimony was properly limited by the court in his charge to the purposes for which it was introduced, and was admissible, and no such matters are presented as should cause a reversal of the case. If the statement, “You can have my last dollar,” and, “That is Renn now,” were not admissible for the purposes of impeaching and affecting the credibility of the witness Vaughn, as showing his bias (which we think they were), yet said statements could not and did not tend to show that appellant was or was not guilty of any offense.
The motion for rehearing is overruled.
Dissenting Opinion
(dissenting). On a former day of this term, this case was affirmed by a majority opinion. I then dissent'ed, but did not write, trusting that my Brethren would see the error of their way, and upon motion for rehearing reverse the judgment, to the end that defendant might have a legal trial; but they have written an opinion on the rehearing overruling that motion. I do not purpose to go into a detailed statement of the case or the questions involved, but will state a few reasons why this judgment is erroneously affirmed.
While the witness Vaughn was upon the stand, he was asked, first, if he had not been arrested for beating his wife; second, how many times he had been arrested for adultery ; and, third, if he had not been arrested for aggravated assault upon his wife, etc. As these questions were propounded, objection was interposed and sustained. My Brethren hold there was no error in this, and cite authorities to sustain that conclusion. As a general rule, I agree with them that there would be no serious injury, where the questions were not answered. There may be and are exceptions to this general statement. We have reversed judgments because of the unauthorized manner of the prosecutions asking illegitimate questions, in. order to discredit a witness before the jury, even when the questions were not answered. It is readily conceivable how by a continuous course of conduct of this sort a defendant’s case might be seriously injured. We held this character of conduct reversible in the recent case of Sweeney v. State, 145 S. W.-.
2. There are quite a number of bills of exceptions, presenting questions for revision, some of which clearly show error. Bill No. 6 recites that Vaughn, testifying in behalf of the defendant, stated, in substance, that deceased came to his barber shop on the evening of the homicide, got his pistol, which he had left there that morning, oiled and cleaned it, and said that he intended “to whip Renn or kill him that night.” Vaughn, later the same evening, saw Renn at his barber shop, and informed him what deceased had said. He also testified that he was at his shop, several blocks away, at the time the shooting occurred. Upon cross-examination, Vaughn was asked by the prosecution if he did not see the witness Nick Lightfoot, a short time after the shooting, on the night of the homicide, and have a talk with him and other persons, in which he (Vaughn) said that Renn had killed deceased Collins; and that Renn was in his barber shop that evening, and told him that he was going to kill Collins that night, which
It is also the rule in Texas if a witness be cross-examined as to new matter he becomes the witness of the party injecting the new matter, and if there is a mere failure to make the proof the party is not entitled to impeach the witness, as to such new matter, by proof of his statements to another witness, and thus get hearsay testimony before the jury. Vaden v. State, 25 S. W. 777.
Again, it has been held in a great number of authorities, if the defendant’s witness is cross-examined as to new matter, he becomes the state’s witness in regard to that matter; and if the state fails to elicit the desired answer, it is the mere failure to make proof, and it is error to permit the state to impeach the witness, as to such new matter, by proving statements by other witnesses, and in this manner get hearsay testimony before the jury. Woodward v. State, 42 Tex. Cr. R. 205, 58 S. W. 135; Owens v. State, 35 Tex. Cr. R. 351, 33 S. W. 875; Paris v. State, 35 Tex. Cr. R. 95, 31 S. W. 855; Casey v. State, 49 Tex. Cr. R. 175, 90 S. W. 1018; Johnson v. State, 22 Tex. App. 206, 2 S. W. 609; Gaines v. State, 53 S. W. 624; Maroney v. State, 95 S. W. 109; Hart v. State, 15 Tex. App. 202, 49 Am. Rep. 188; Shackelford v. State, 27 S. W. 8; Drake v. State, 29 Tex. App. 265, 15 S. W. 725; Washington v. State, 17 Tex. App. 203.
The state may only impeach her own witness by .proof of contradictory statements, where he testifies to either affirmative or negative facts which are injurious to the state’s case. The evidence brought out from the witness Vaughn was not injurious to the state in any manner. It was just a failure of proof. The question asked Vaughn was not authorized. Sapp v. State, 77 S. W. 457; White v. State, 62 S. W. 750; Young v. State, 44 S. W. 836; Williford v. State, 36 Tex. Cr. R. 424, 37 S. W. 761; Self v. State, 28 Tex. App. 408, 13 S. W. 602; Storms v. State, 37 S. W. 439; Clanton v. State, 13 Tex. App. 152; Tyler v. State, 13 Tex. App. 208; Ross v. State, 45 S. W. 808; Kirk v. State, 35 Tex. Cr. R. 230, 32 S. W. 1045; Somerville v. State, 6 Tex. App. 433; Davis v. State, 21 S. W. 369; Brown v. State, 55 Tex. Cr. R. 9, 114 S. W. 820; Baum v. State, 60 Tex. Cr. R. 638, 133 S. W. 271.
It has been held that, where the party is surprised by the answer of a witness, and that answer is hurtful to him or his cause, and when he has been led to believe by the witness that it would be favorable, under
The decisions have held, and correctly so, that error in permitting the state to impeach her own witness is not cured by limiting in the charge the hearsay testimony to impeachment. Skeen v. State, 51 Tex. Cr. R. 40, 100 S. W. 770; Ozark v. State, 51 Tex. Cr. R. 110, 100 S. W. 927; Williford v. State, 30 Tex. Cr. R. 414, 37 S. W. 761. It is also the rule that error in permitting the state to impeach her own witness is not cured by withdrawing such hearsay testimony. Williford v. State, 36 Tex. Cr. R. 414, 37 S. W. 761. These cases and authorities, it would seem, ought to be sufficient to settle the rule, if. it be possible for decisions to settle a question. My Brethren cite, in support of the ruling of the trial court, Drake v. State, 29 Tex. App. 265, 15 S. W. 725, and Hickey v. State, 138 S. W. 1051. Those eases are directly in point against the majority opinion. Had Vaughn given testimony against the state upon the line indicated, and it was hurtful, there might have been reason for the impeachment; but under no known rule I have been able to find is the ruling of the trial court justified. It may be inferred, perhaps, from the statement of the opinion on rehearing that my Brethren conceived the idea that the conclusion they reached was justified by the fact, and they so state, that there was some issue between the witness Vaughn and the witness Lightfoot, in regard to what occurred in Vaughn’s barber shop, in regard to the visit of the deceased and appellant during the evening preceding the homicide at night. The opinion travels upon the theory that the two witnesses were disagreeing upon whether it was Renn who visited the shop or Collins, the deceased, and made the threats. I have looked this matter up with some degree of care to see whether this is correct or not, and, as I read the record, their statement is clearly not justified. Vaughn testified that deceased, Collins, left the pistol at his barber shop in the morning, and went away. In the evening, about 5 or 6 o’clock he returned, got his pistol, and called for some oil with which to clean it; that he did clean and oil it, and made a statement to the effect that he was going to whip or kill Renn that night. Lightfoot was not at Vaughn’s barber shop when this occurred, and does not so testify or intimate, and knew nothing about it. He testified that at another time during the same evening, but later, he was at Vaughn’s barber shop, and I that Renn came also, and that while there Renn made threats with reference to the deceased, Collins. Collins was not in the shop at the time, and there is not a fact in the record to indicate that he was. Neither Vaughn nor Lightfoot ever suggested Collins’ presence at that time. In other words, this record demonstrates the fact to be that Collins visited Vaughn’s barber shop, oiled his pistol, made his threats, and went away, and that subsequently Renn came in, and Vaughn informed him as to what Collins had said about him, as to his purpose and intention of whipping him or killing him that night. Lightfoot was not present when Collins was in Vaughn’s barber shop, but later when Renn came, and after1 Collins left, Lightfoot was there, so he states.
3. Another bill of exceptions recites that appellant’s witness Vaughn testified that deceased had, at his (witness’) barber shop, during the evening prior to the homicide at night, cleaned and oiled his pistol, at the time stating he was going to kill or whip Renn (appellant) that night; and that he (Vaughn) notified appellant of these threats and statements of the deceased before the homicide occurred. On cross-examination, Vaughn testified he was in his barber shop at the time of the shooting, and did not hear it, and that the state’s witness Sims was not in his barber shop at that time, nor just after the shooting, and Stewart did not come into his (Vaughn’s) barber shop just after the shooting, and say: “I hear some shooting down there; I reckon some negroes must be killing one another down there” — and that he (Vaughn) did not state in reply to said Stewart, “I guess that is Renn now, killing Collins.” These questions were asked as basis for impeachment of Vaughn, and as a predicate for that purpose. The state then introduced Sims, who testified he was in Vaughn’s barber shop when the shooting occurred, and heard it; that Stewart did come in and utter the remark above imputed to him; and that Vaughn replied, “I guess it is Renn now.” A great number of objections, and practically every available one, were urged by appellant to the introduction of the above statement. My Brethren hold this was not error. As I understand the authorities in Texas, there is no decision that will sustain them, or the ruling of the trial court. An unbroken line of authorities holds the ruling of the trial court in this instance error, and material error. A great many of these cases are collated by Mr. Branch, in his work on Criminal Law of Texas (section 348).
Opinions expressed, in the absence of defendant, to the injured party or others that would point to the guilt of defendant, or connect him with the transaction, are hearsay. Jackson v. State, 20 Tex. App. 193; Langford v. State, 9 Tex. App. 287. It is also error to permit the state to impeach a witness by proof of a statement of a witness, ex
It has also been held that it was error to introduce as evidence before the jury the opinion of a witness, as to the cause of the trouble, by impeaching the witness by proof of a statement expressing such opinion. Marsh v. State, 54 Tex. Cr. R. 147, 112 S. W. 320; Williford v. State, 36 Tex. Cr. R. 425, 37 S. W. 761. In quite a line of cases, it has been held error to permit the state to impeach a witness by proving, either by admission of the witness or' evidence laying the predicate, that witness, by words or acts, had expressed an opinion of defendant’s guilt, or has an opinion as to who had committed the offense. Cogdell v. State 43 Tex. Cr. R. 180, 63 S. W. 645; Morton v. State, 43 Tex. Cr. R. 537, 67 S. W. 115; Vann v. State, 45 Tex. Cr. R. 445, 77 S. W. 813; Davis v. State, 20 S. W. 923; Jenkins v. State, 45 Tex. Cr. R. 178, 75 S. W. 312; Watson v. State, 50 Tex. Cr. R. 172, 95 S. W. 115; Red v. State, 39 Tex. Cr. R. 423, 46 S. W. 408; Kirk v. State, 48 Tex. Cr. R. 624, 89 S. W. 1067; Parker v. State, 46 Tex. Cr. R. 468, 80 S. W. 1008, 108 Am. St. Rep. 1021; Scott v. State, 49 Tex. Cr. R. 390, 93 S. W. 112; Jennings v. State, 60 Tex. Cr. R. 421, 132 S. W. 475; Burnam v. State, 133 S. W. 1045.
It has also been held that the reasons of a witness for his actions, where they involve an opinion as to the guilt of defendant, or amount to an expression hurtful to him, are not admissible. Dempsey v. State, 27 Tex. App. 269, 11 S. W. 372, 11 Am. St. Rep. 193; Campbell v. State, 30 Tex. App. 649, 18 S. W. 409; Underwood v. State, 39 Tex. Cr. R. 412, 46 S. W. 245; Bennett v. State, 39 Tex. Cr. R. 649, 48 S. W. 61; Chambers v. State, 46 Tex. Cr. R. 62, 79 S. W. 572; Pinckord v. State, 13 Tex. App. 478; Smith v. State, 33 S. W. 1080. I deem it unnecessary to cite any greater number of authorities to show the error of the trial court in admitting the testimony, and the erroneous conclusion of the majority opinion in sustaining the ruling of the trial court. The rule is also well settled that remarks of bystanders, unheard by the accused, cannot be introduced. For collation of cases, see Branch, Criminal Law, § 343. The above are sufficient to satisfy, it would seem, any candid legal mind of such error.
4. The theory of appellant was self-defense, based on communicated threats and the acts and conduct of the deceased at the time of the shooting. The shooting occurred not far from the foot of the stairway that led up to a Masonic lodgeroom. Appellant and a friend were standing, leaning against the wall, talking. Deceased was coming down the street, until he got opposite appellant, and immediately turned in his direction, and, as appellant shows, made a demonstration, or placed himself in the attitude of causing appellant to believe that deceased was then about to attack him, and execute his previously uttered threats, and that thereupon he began shooting. The state offered evidence showing a conversation between a state’s witness and deceased in regard to the deceased getting a blank application for a petition, perhaps, to send in name of the witness to the lodge for membership, and that he had started in the direction of where the shooting occurred, for the purpose of going upstairs into the lodgeroom for that purpose. This was unknown to appellant. Over the objection of appellant, these matters and statements were permitted to go to the jury. It is unnecessary to state the numerous objections urged. The ruling of the trial court was error, and my Brethren are clearly in error in sustaining such ruling. The authorities in Texas on this question are unbroken, holding such ruling to be error. It is a rule by statute and all the decisions that the case must -be viewed from the defendant’s standpoint, and as it reasonably appeared to him at the time he acted. This is a basic principle, fundamentally true in regard to an accused person, when on trial for his life or liberty, or for a violation of the law. The decision of my Brethren not only ignores the principle, but the effect of their opinion is to absolutely overturn it. The decisions hold, without dissent, that an accused person can only be bound by the facts as they reasonably appear to him. The undisclosed reasons, motives, or purposes of the deceased in being where the accused was, or in going to the scene of the homicide, or proof as to the real destination of the deceased, if it is not shown to have been known to the accused, is never admissible against him, where it affects his defense. Brumley v. State, 21 Tex. App. 238, 17 S. W. 140, 57 Am. Rep. 612; Johnson v. State, 22 Tex. App. 224, 2 S. W. 609; Ball v. State, 29 Tex. App. 125, 14 S. W. 1012; Gilcrease v. State, 33 Tex. Cr. R. 619, 28 S. W. 531; Stell v. State, 58 S. W. 75; Woodward v. State, 42 Tex. Cr. R. 207, 58 S. W. 135; Stanton v. State, 42 Tex. Cr. R. 271, 59 S. W. 271; Adams v. State, 64 S. W. 1056; Wall v. State, 62 S. W. 1063; Wooley v. State, 64 S. W. 1054; Adams v. State, 44 Tex. Cr. R. 66, 68 S. W. 270; Gray v. State, 47 Tex. Cr. R. 377, 83 S. W. 705; Saye v. State, 50 Tex. Cr. R. 572, 99 S. W. 551; Tillman v. State, 51 Tex. Cr. R. 204, 101 S. W. 210; Young v. State, 41 Tex. Cr. R. 444, 55
Upon what theory the acts, declarations, and purposes of the deceased were admissible against the defendant, where the bill shows them unknown to the accused, is not explainable'upon any theory of self-defense, or any known principle involved in that doctrine. It is a direct attack upon his self-defensive theory by evidence, of which he was entirely ignorant, and was a fatal thrust, and an illegal one at his self-defense. It is said that the law of self-defense is a natural law, inviolable and unassailable; that it is higher than municipal law, and has often been stated to be a God-given right. Under the decision of my Brethren, these bulwark and guaranteed rights are swept aside, and the undiscovered and unknown purposes of the deceased are made to bind the defendant and cut him off from his theory and right of self-defense, and eliminate it from the case. Without discussing these matters further, I have stated this much and collated some of the authorities sustaining my dissenting views. I do not believe that the right of self-defense should thus be ruthlessly set aside.
I wish to make the above statements in regard to the transactions in order that it will more clearly elucidate the correctness of what I have said. This case has been tried upon false theories, and false application of the rules of law, or rather want of rules of law. There have been applied rules which are totally inapplicable to anything that arose on the trial, and in direct violation of every decision ever rendered by this court.
I therefore respectfully enter my dissent.
Rehearing pending.
Dissenting Opinion
(dissenting). The testimony mentioned in the bills of exception ought to be excluded under the Drake Case, 29 Tex. App. 265, 15 S. W. 725, and that line of cases, including the late case of Hickey v. State, 138 S. W. 1051.
