61 S.W. 719 | Tex. Crim. App. | 1901
Lead Opinion
Appellant was convicted of murder in the second degree, and his punishment assessed at eight years confinement in the penitentiary.
The judgment should be reversed because the witness Pickel was not permitted to testify, as shown by bill of exceptions. On a former trial Pickel took down the testimony as a sworn stenographer. On the trial which resulted in this conviction several of the witnesses materially changed their testimony. In order to contradict them the predicate was laid as to their former testimony. Pickel was introduced for the purpose of impeachment. Being questioned with regard to the testimony of said witnesses, he was unable to reproduce their testimony from memory. He was permitted to refresh his memory from his stenographic notes, and *590 stated that in taking down the testimony he did not charge his memory with it, his sole object and purpose being to get it correctly in his notes; that his mind was directed to that matter and not to recollecting what the testimony was; and could not therefore, after reading the notes, be sufficiently definite in his recollection to reproduce said testimony. He testified, however, that he took the testimony correctly, and these notes showed exactly what the witnesses did testify, and to this he would swear. In other words, he was willing to swear and would have sworn, if permitted, that the testimony taken by him was correctly taken and exactly what the witnesses stated. Under this predicate appellant proposed to introduce the stenographic notes in contradiction of said witnesses. This being refused, appellant excepted. While the question is not so presented perhaps as to require a reversal upon the proposition, for want of a sufficient bill, still the question is before us, and as the case will be reversed upon other grounds, we deem it not improper to call the trial court's attention to the matter. As presented this evidence should have been admitted. Kimbrough's case, 28 Texas Crim. App., 367; Jones on Evidence, for collation of authorities.
Exception was reserved to the action of the court submitting the issue of mutual combat. We are of opinion that this issue was not suggested by the testimony. A brief statement of the substance of the evidence bearing immediately upon this question will show that appellant and a friend in the restaurant were discussing a Mr. Early, an uncle of appellant. Some remark had been made about Mr. Early that was distasteful to the deceased, whose presence was unknown to appellant at the time the remark was made. Deceased immediately became insulting in language and conduct to appellant on account of said remark, and matters looked as if there would be a personal encounter. Friends interfered. Appellant resumed his seat at the lunch counter, and deceased was carried away by a friend. He was gone a short time, when he reappeared in front of the restaurant. Appellant was still seated at the lunch counter. Deceased remarked to appellant that he would not or could not come out there and repeat what he had previously stated. What the prior language was is left in considerable doubt and confusion, if in fact it was known to the witnesses. Appellant went to the sidewalk and a quarrel ensued. Exactly what was said is left in serious confusion, though there was quite a crowd standing about. The State's theory was that, when deceased suggested to appellant to come upon the sidewalk, that he (appellant) immediately drew a knife from his pocket, opened it as he approached deceased, and immediately began a furious assault upon him; that deceased was standing with his hands by his sides, having done nothing, nor offered any resistance. This is the substance of the State's case. Defendant's theory was that when he went upon the sidewalk words ensued, which he did not recollect; that deceased finally remarked *591
that "Early was a better man than appellant or his God-damn father," whereupon appellant replied that "he was a damn liar." Deceased then, with his left hand, struck or pushed appellant backward, so that he partially fell; and, as he straightened up, deceased struck him on the head one or more blows with a very heavy walking stick. The effect of one of the licks was to raise a knot on appellant's head, as the witnesses say, about the size of a hen's egg. The inference from the testimony, if not a direct statement, was that the deceased was so close to appellant that he could not strike him with the stick without pushing him back, and this was the reason for using his left hand in so doing; that, immediately after deceased struck appellant the second blow with the stick, appellant succeeded in opening his knife, and the death grapple ensued. The parties closed, and, as the witnesses term it, "were clinched and fighting," appellant striking with the knife whenever and wherever the opportunity offered. The physician testified the wounds were not of such serious nature as necessarily would cause death, in fact, that death was the result of the nervous shock rather than the wounds. This evidence does not raise the issue of mutual combat. Roseborough v. State, 21 Texas Crim. App., 672; Kelly v. State, 27 Texas Crim. App., 562; Walton v. State, 34 Tex.Crim. Rep.; Maines v. State,
One of the grounds of the motion for new trial challenges the competency of Hanks, one of the jurors who tried the cause. It is made to appear, without contradiction, that Hanks and deceased married first cousins; that the wife of deceased died some years prior to the trial, leaving two sons as the issue of that marriage. These sons were private prosecutors on the trial. Appellant was ignorant of this relationship until after conviction. The juror answered on his voir dire that he was not related to deceased by consanguinity or affinity within the prohibited degree. Except for the issue resultant of the marriage between deceased and his wife, the death of said wife would have terminated the relationship. Under the authorities, it seems that by reason of the issue of the *592
marriage the relationship is extended beyond the death of the spouse. Under the law, as it is understood in this State, Hanks and deceased, by reason of their wives being first cousins, were related by affinity. Page v. State, 22 Texas Crim. App., 557; Powers v. State, 27 Texas Crim. App., 700. See, also, Foot v. Morgan, 1 Hill, 654; Dearmond v. Dearmond,
It is not necessary to discuss the application for continuance, as it may not arise upon another trial, and if it does it will come under different circumstances. For the reasons indicated, the judgment is reversed and the cause remanded.
Reversed and remanded.
Dissenting Opinion
While I agree with the presiding judge in the disposition of the case, yet I do not agree with him upon two propositions. The opinion authorizes the introduction of the notes of the stenographer taken at a former trial of the case as evidence to corroborate a witness on the trial who had also testified in the former trial of the case. As I understand, this would place the notes of a stenographer on the same plane as examining trial evidence. No authority is cited, except Kimbrough's case, 28 Texas Criminal Appeals, 367, and cases cited in Jones on Evidence. Kimbrough's case goes to the extent of holding the appeal bond taken before the magistrate and the complaint showed that the owner of the stolen property was named S.W. Dodd, and these proceedings were before the grand jury. This evidence was offered on behalf of defendant to show that by the use of reasonable diligence the name of the owner of the property could have been ascertained by the grand jury, and that therefore the prosecution could not be maintained against him for stealing the property of one Dodd whose Christian name was to the grand jury unknown. It was merely held by the court in this case that the papers could be resorted to, at the instance *593
of appellant, to show that the initials of Dodd could have been known to the grand jury, and that the papers in question furnished the grand jury with evidence to that effect. The court says the purpose of this evidence was to furnish the grand jury such information as came to the knowledge of the examining court. 1 Greenleaf on Evidence, section 437, is referred to in support of the court's definition. I do not think that either the case cited or Mr. Greenleaf sustains the proposition here contended for. In connection with what is quoted in the opinion, I quote also the balance of the section. Mr. Greenleaf says: "Where the witness recollects having seen the writing before, and, though he has now no independent recollection of the facts mentioned in it, yet he remembers that at the time he saw it he knew the contents to be correct. In this case the writing itself must be produced in court, in order that the party may cross-examine — not that such writing is thereby made evidence of itself, but that the other party may have the benefit of the witness refreshing his memory by every opportunity." So it appears that Mr. Greenleaf is only authority to the extent of holding that the paper could be introduced to refresh the witness' recollection. As stated before, if it be conceded that the examining trial papers could be used as evidence it by no means follows that stenographer's notes can be used as evidence. Article 14, Code of Criminal Procedure, authorizes the use of examining trial evidence where the deposition is taken before an examining court or a jury of inquest, and reduced to writing, and certified according to law in cases where the defendant was present when such testimony was taken, and had the privilege of a cross-examination. And it also authorizes the use of depositions on behalf of defendant. Arts. 797, 798, Code Crim. Proc. But there is no statute, civil or crimnal, which authorizes the use of a stenographer's notes. Articles 1295 and 1296, Revised Civil Statutes, authorize the appointment of a stenographer or other competent person for the purpose of preserving a statement of the evidence, on the application of either party. But this would seem to have application exclusively to civil cases, inasmuch as the succeeding article authorizes the compensation of the stenographer to be taxed up in the bill of costs. As far as I am advised, there is no provision making him an officer of the court, even in a civil case. In a criminal case, it has been held that a stenographer's report of the testimony can not constitute a statement of facts. Butler v. State, 33 Texas. Crim. Rep., 232; Emmons v. State, 34 Tex.Crim. Rep.. The reference in the opinion to authorities cited in Jones on Evidence, volume 2, section 346, as far as I have examined them, also fails to sustain the opinion. Round v. State,
