81 S.W. 89 | Tex. Crim. App. | 1904
Lead Opinion
Appellant was convicted of murder in the first degree, and his punishment assessed at confinement in the penitentiary for life. This is the second appeal, the former opinion being reported in 3 Texas Ct. Rep., 639.
Appellant's second, third, fourth, fifth and sixth assignments of error all relate to the admission of testimony tending to prove motive, which evidence we held in the former appeal admissible for this purpose. *618 However, appellant insists that the evidence is not admissible for this purpose; and if so, it should be limited in the court's charge to the question of motive. In support of his first contention he cites us to Price v. State, 3 Texas Ct. Rep., 663. A casual reading of that case will show that we held that the previous adultery of appellant with deceased's wife was not admissible, since the killing grew out of a separate and distinct and altogether independent motive from that of adultery with deceased's wife. In other words, adultery had nothing whatever to do with the killing. The evidence in the record before us shows that deceased married the sister-in-law of appellant, and that appellant had had carnal intercourse with her for some time prior to the killing. The evidence for the State strongly suggests that deceased was induced by appellant to marry his sister-in-law to cover up this illicit relation of appellant with said sister-in-law; and that he subsequently formed the design of killing deceased in order to renew his illicit relations with deceased's wife. We do not deem it necessary to collate all the evidence on this matter; suffice it to say, viewing the record as a whole, we believe all the evidence was germane on the issue of motive. Its remoteness, as suggested in the former appeal, would go to its weight and not to its admissibility. In Terry v. State, 8 Texas Ct. Rep., 570, we held that, where the court charged on motive, it was reversible error because the same was a charge on the weight of the evidence, citing to support this proposition Hudson v. State, 28 Texas Crim. App., 324; Leeper Powell v. State, 29 Texas Crim. App., 63; Attaway v. State, 55 S.W. Rep., 45. The decisions make a distinction between a charge on evidence tending to show motive and a charge on evidence tending to show intent. In the latter instance, where the facts are calculated to injuriously affect appellant and likely to be used by the jury for other purposes than illustrate intent, it is necessary for the court to limit the same to that purpose. All the authorities hold that it is not necessary for the court to limit evidence going to show and make manifest motive for the crime. Where another crime forms part and parcel of the motive and res gestæ of the motive, it is not necessary to charge thereon.
Bill of exceptions number 7 complains that while the State's witness Tom Bell was on the stand, over appellant's objections he was permitted to testify that he cut a stick, and with said stick measured the foot-tracks and the boot of deceased, and a similar track leading to and from said dead body, and with such stick measured the boot which defendant was wearing the next morning after the homicide; and further stated that said measurement of said track made by him with the stick corresponded with the measurement of defendant's boot — the boot so measured being the boot defendant was wearing the next morning after the homicide. That the stick and track and boot were one and the same length. Appellant objected to this testimony on the ground that witness had stated he had said stick in his possession about the time of the first *619 trial, and had given the same to the clerk of the court or some one representing the State, with the boots, pistol and pistol ball used in evidence; and because there was no effort made to find said stick and produce the same on the trial; and because the absence of the stick was not accounted for, and no effort was made to produce the same, make search for the same or account for its absence; notwithstanding the fact that defendant demanded the production of said stick; that said stick would be the best evidence as to whether or not it was the same length. The bill is approved with the explanation, "that the court privately instructed the clerk of the court to produce the stick, and the clerk reported to the court that he did not have the stick; that nothing but the boots were left in his charge, which he produced. No other effort was made to find the stick, and as a matter of fact the clerk did not search for it and did not have it in his possession. After the trial the stick was found in the sheriff's office, as the court was informed." We know of no rule of law to the effect that where one measures a track with a stick, or other substance, that he can not testify to the accuracy of the measurement without producing the stick of measurement. We do not think there was any error in the ruling of the court.
Appellant also complains that the court erred in excluding that portion of a book kept in the county clerk's office, showing the affidavit of deceased, Charley Martin, made before J.C. Killough, deputy county clerk — said affidavit being dated March 26, 1898 — for the purpose of getting a license authorizing the marriage of deceased, Charley Martin, to Sarah Slate. Said affidavit was offered in connection with the marriage license introduced in evidence, as testimony tending to show that deceased, Charley Martin, was acting voluntarily and on his own responsibility in marrying said Sarah Slate; and as tending to contradict the evidence of the State to the effect that deceased was forced by defendant to marry Sarah Slate. This bill is approved with the explanation, "that it was shown by the evidence that J.C. Killough, the deputy, who it was claimed took the affidavit, lived at Hubbard City, in Hill County, Texas; and the court stated he would grant process for Killough in behalf of defendant, and if Killough could state that deceased made the affidavit he would admit it, but no effort was made to procure Killough and no identity between deceased and the affidavit shown." Clearly, under this explanation, the evidence was not admissible.
The eighth bill of exceptions complains that the court erred in permitting Weaver, defendant's father, to testify that defendant returned to his house two or three days after he started to Vernon; that witness was getting ready for breakfast when he saw him; that it was a little while before sunup, between sunup and daylight; when witness first saw defendant there that morning he was coming from the gate to the house. Defendant stayed at witness' house until breakfast, and asked his brother Joe to take him back to Itasca; that he wanted to get there *620 by train time; that he (witness) did not know where defendant stayed all night; witness did not ask him, and defendant did not say. To the introduction of this testimony defendant objected on the ground that it was introduced for the purpose of contradicting defendant as to whether or not defendant had gone the night before to the house of old man Martin, the father of deceased, Charley Martin; the contention of defendant being that the issue as to whether or not defendant went the night before to the house of old man Martin was immaterial, and a collateral issue. The statement having been drawn out on cross-examination by the State of defendant as a witness, that he (said Weaver) had not on that night gone to the house of old man Martin, but went to his father's house from Itasca on his return from Fort Worth and arrived there, at his father's house, about 12 o'clock at night, and remained at his father's until the next morning when he returned to Fort Worth. It being further contended by defendant that said evidence introduced to contradict and impeach the correctness of the statement made by defendant for the first time on cross-examination of said defendant as a witness and by the attorney for the State, was improper, incompetent, irrelevant and prejudicial to the rights of defendant. Appended to this bill is the following qualification: "That the evidence showed deceased and wife went to and lived at defendant's house for about two weeks, during which time defendant had intercourse with her; that defendant left with his family for Vernon, and old man Martin and wife say that deceased and wife came to their house to live, and that the night of the second day after defendant left he came to their house between midnight and 2 o'clock in the morning and tried to get deceased and wife away, etc. Defendant denied this, but on the contrary swore that he returned to and remained at his father's house that night. This evidence of the father was therefore admissible both as direct and as impeaching evidence. Reference is also made to the evidence of old man Martin and wife, and the evidence of Mr. Clayton on this subject in the statement of facts." By referring to the evidence of the witnesses named it appears that defendant, about the time suggested, went to the house of deceased's father, and made a futile effort to get deceased and his wife to accompany him on this trip. He went off, was gone awhile, and returned; and on his earnest insistence was permitted to see deceased and his wife. It appears that upon this second visit he renewed his entreaties to get deceased and his wife to go with him to Vernon. We do not think this testimony would be impeaching the State's own witness. It was testimony elicited by the State on legitimate cross-examination of the defendant, as indicated by the court on the question of the motive for the crime. The State had a right, as original testimony, to introduce this unusual visit of defendant to deceased's father for the purpose of showing his intense interest and suspicious regard for the wife of deceased. If it could be used as *621 original evidence, then the fact that the predicate was first laid by asking defendant about the conversation would not render the testimony inadmissible. The record further shows that defendant denied many of the circumstances together with this untoward visit; and certainly it was proper for the State to introduce testimony going to discredit and disprove his testimony. To support appellant's contention he cites us to Woodward v. State, 42 Tex.Crim. Rep.. In that case we held that, where a witness on cross-examination is asked about and testifies to entirely new matter not pertinent to any matter drawn out in his examination in chief as to such new matter, he becomes the witness of the party cross-examining him, and such party can not be impeached as to such new matter. We think this is a correct rule of evidence; but we do not think it supports appellant here, since the evidence offered by the witness Martin was pertinent to a matter drawn out on the cross-examination of the defendant. Of course, it is a well established rule that a party can make an adverse witness his own, but merely because he cross-examines him as to matters that tend to discredit his examination in chief, this does not make him per se a witness of the party cross-examining him. So we think the testimony was admissible, both as direct and impeaching testimony; and if admissible as direct testimony, it was certainly not necessary for the court to limit the same to the purpose of impeachment alone.
Appellant's ninth assignment of error complains of the admission of the testimony of Taylor Clayton. What we have said in reference to the testimony of the witness Martin disposes of appellant's contention as to the testimony of witness Clayton as it grew out of the same transaction.
The eleventh bill of exceptions complains that the court permitted Tom Bell to testify for the State that he had a conversation over the telephone, and he recognized Lem Lary's voice, and that he was the party he was talking to; that said Lary was his deputy, and after his conversation with him over the phone he ordered Lary to arrest defendant. Appellant objected on the ground that it was hearsay, immaterial, irrevelant, and conveyed to the jury the suspicions or opinion of Tom Bell, sheriff, that defendant was the party who committed the homicide, and was prejudicial to the rights of the defendant. This bill is approved with this explanation: "Defendant first proved by Tom Bell, on cross-examination, that he ordered his deputy, Lem Lary, to arrest defendant before he, Bell, went on the ground. On re-examination the State proved by Bell that he ordered the arrest on information received from his said deputy, Lem Lary, over the phone; and to this defendant objected." This testimony, with practically the same qualification by the court, was passed upon by us on the former appeal of this case, and we there held there was no error in the ruling of the court.
Bill number 12 shows that B.Y. Cummings, witness for defendant, *622 was introduced for the purpose of impeaching Mrs. Sarah Martin, wife of deceased, and testified: "That he was the stenographer who took down the testimony on the former trial of this cause; that Mrs. Sarah Martin then testified that after her marriage to deceased, Charley Martin, and while at Weaver's house, Weaver had intercourse with her, just the same as he did before I was married. Q. Just came and got in bed with you and your husband, your husband on one side and him on the other? A. Yes, sir. In answer to the question as to whether said witness testified before that Weaver came to her in her husband's room and woke her up, and that she got up out of their bed and went with the defendant into his and his wife's room and there had intercourse on the floor, stated that she did not so testify. On cross-examination said witness, over the objections of defendant, stated: Yes sir; at the time that she gave that testimony she had been on the stand for a long time; she was very much agitated, she had been subjected to a long and tedious examination by Mr. Tarlton, counsel for defendant; that the testimony of the witness just referred to was brought out on cross-examination." Counsel for defendant objected on the ground that said testimony was introduced solely for the purpose of showing that the witness had on a former trial testified as to the manner and circumstances she had sexual intercourse with defendant, and as contradicting witness as to the manner and circumstances under which she had had sexual intercourse with defendant as testified on this trial; that it was incompetent and improper to allow an outsider to make statements of his impression of the manner of the witness and the circumstances under which she testified. The testimony of the witness Cummings on cross-examination, as disclosed by this bill, was not improper, but was the shorthand rendering of the facts; and it certainly was germane and proper, if the main prosecuting witness, Mrs. Martin, had made a previous statement contradictory of that then being detailed by her, for the State to show the mental condition of the witness at the time of such contradictory statements being made.
Appellant also complains of the following portion of the charge of the court: "Among other defenses set up by the defendant is that of an alibi; that is, that if the offense was committed, as alleged, then the defendant was, at the time of the commission thereof, at another and different place from that at which such offense was committed; and therefore was not and could not have been the person who committed the homicide. Now, although you may believe from the evidence that the deceased was unlawfully killed, as alleged, yet if the evidence or want of evidence raises in your mind a reasonable doubt as to the presence of the defendant at the place where the homicide was committed at the time of the commission thereof, then you will give defendant the benefit of such doubt and find him not guilty." Appellant insists that this charge is erroneous, contradictory, and misleading, in that it is not left to the jury to find that Martin was killed under the *623 circumstances under which the evidence before the jury shows he was killed; but the proposition in the charge is that, although you may believe from the evidence that deceased was unlawfully killed as alleged — that is by Jess Weaver — with malice aforethought, it follows that if the jury should believe he was killed by Jess Weaver, there could not arise a reasonable doubt from any portion of the testimony as to his presence at the killing. The charge when considered as a whole could not have misled the jury. The phrase "unlawfully killed as alleged" would not be construed, in connection with the remainder of the charge, as meaning that Weaver killed him, but merely means that he was unlawfully killed.
Appellant's thirteenth assignment of error is that the verdict of the jury is contrary to the law and the evidence, and without evidence to support the same. To this we can not agree. The record is replete with the most fearful motive on the part of appellant for the homicide. The facts circumstantially demonstrate his guilt with that degree of certainty which precludes every other reasonable hypothesis than that of his guilt. The record is very voluminous, and we do not deem it necessary to rehearse the facts. Suffice it to say the facts show a culpable, premeditated, lying-in-wait murder, although established by circumstantial evidence. The facts and circumstances are of that degree of cogency and consistency leading on the whole to the irresistible conclusion that defendant and no one else committed this homicide. And so believing, and finding no error in the record authorizing a reversal, the judgment is affirmed.
Affirmed.
Dissenting Opinion
In agreeing to the overruling of the motion for rehearing, I would state that I believe we were in error in holding that there is a difference in the duty of the court with reference to charging on motive and intent, to wit: that in the former the *627 court was not required to limit the testimony to the particular purpose of its introduction, while in the latter the court is required to do so. The authorities cited by appellant support his contention to the effect that where an extraneous crime is introduced to show motive or intent, there is no difference in the duty of the court with reference to limiting such testimony to the purpose of its introduction. But all the authorities with which I am familiar hold, that in either event it only becomes the duty of the court to limit such testimony, whether of motive or intent, where it might be used for some other purpose against defendant than for the particular purpose for which it was introduced. The testimony here complained of, and which the court did not limit, related to an attempted abortion of the wife of deceased by appellant, prior to her marriage with deceased. The evidence in regard to this matter did not show an extrinsic crime. Indeed it was no crime at all, the attempt being with means not calculated to produce an abortion, and so could not constitute an offense. Williams v. State, 19 S.W. Rep., 897; Cave v. State, 33 Tex.Crim. Rep.; Fretwell v. State, 67 S.W. Rep., 1021. Not being an extrinsic crime, it did not become necessary for the court to limit its effect. The evidence in my view was introduceable to show the influence appellant exerted over deceased's wife, and to show his intimate relations with her, which he denied; and I do not believe the jury was likely to appropriate it to any other purpose.
As to the evidence of Weaver (appellant's father), it was admissible in the first instance to show appellant's conduct on the night in question, as suggesting appellant's interest in deceased's wife at that time, and his determined effort to have her go with him to Wilbarger County. When appellant rebutted this with testimony tending to show he did not go to his wife's father's house to see deceased's wife on the particular night, but went to his own father's house on that occasion, it then became pertinent on the part of the State to show that it was not true, as attempted to be proved by him, that he only went to his father's house on that occasion about breakfast time.
As to the bill on the production of the stick with which the witness Bell measured the boots, the main fact was the measurement and correspondence between the boots which witness testified he measured and the tracks. The stick he used was no more required to be produced than would a square or yard measure with which the witness might measure a track. Besides this, I think sufficient effort was made to find the stick.
With these views, I agree to the overruling of the motion for rehearing. *628
Addendum
This case was affirmed at the recent Dallas term, and is now before us on rehearing.
The only question we deem necessary to review is the insistence in the motion for rehearing that the court erred in holding in the original opinion that the trial court committed error in failing to limit the evidence tending to show motive to the purpose for which it was introduced. Appellant's counsel in motion and in their able argument before the court insist that the decision cited in the original opinion, to wit, Terry v. State, 8 Texas Ct. Rep., 570, is at variance with all the other decisions of this court, and is not a proper enunciation of the law on the question. To answer appellant's contention we will review some of the authorities: In Naverrete v. State, 40 S.W. Rep., 791, Judge Henderson delivering the opinion of the court uses this language: "We presume, as stated before, that it was introduced for the purpose of tending to show motive on the part of appellant in the homicide. At least the testimony was admitted and it might have some bearing on *624 that issue. It appears that the court promptly checked the district attorney in attempting, as it seems, to use said testimony for another and illegitimate purpose; that is, merely to show that defendant was a bad man. It seems that the court acted upon the suggestion of appellant, and in the absence of a special charge requested on the subject and refused, we fail to see that the court was required to do more than was done; and we do not believe that the colloquy that ensued between the court and counsel on this subject was calculated to injuriously affect appellant. Nor was it necessary nor required, as insisted by counsel for appellant, that the court should limit this testimony in his charge to the question of motive on the part of appellant. Such a charge was not requested, and if given it appears to us would have been subject to criticism as a charge upon the weight of the testimony. The jury was not likely to appropriate said evidence to any other purpose than as evidence of motive."
In Foster v. State, 32 Tex.Crim. Rep., Judge Davidson delivering the opinion, the court say: "It is insisted that this evidence was introduced for the purpose only of showing the willfulness and deliberation on the part of defendant when testifying before the grand jury, and was therefore extraneous matter and should have been restricted to that particular phase of the case by the charge of the court. Deliberation and willfulness are not extraneous matters in perjury cases, but essential elements of the offense, and without which it can not be committed. Evidence which proves or tends to prove such issue goes to the very substance of the crime of perjury. It is only when the extraneous matter is admitted in evidence for a specificcollateral purpose that the court is required to limit and restrict the testimony to such specific purpose. The rule invoked by defendant does not obtain when the admitted testimony proves or tends to prove the main fact."
It will be seen from these excerpts that the distinction is here clearly laid down, as enunciated in Terry v. State, supra, that is, the court makes the distinction between evidence tending to prove motive and that which tends to prove intent. If the crime is a collateral crime, and introduced for the purpose of illustrating the intent of the accused in the case then on trial, it is necessary under the decision to limit said collateral and independent crime to the specific purpose for which it was introduced. But where the evidence introduced is an essential element of the offense itself, such as motive, it is not necessary to limit the same in the charge of the court, because such evidence can be appropriated by the jury for but one rational purpose — i.e., to illustrate and make manifest the motive of appellant in the commission of the crime.
In Hall v. State, 31 Tex.Crim. Rep., evidence of previous assaults, quarrels, threats and ill treatment had been admitted. The court used this language: "The court did not err in failing to charge upon the effect of this evidence, and in omitting to restrict it as a fact *625 tending to prove motive or malice. The authorities cited by appellant sustain the proposition that when independent contemporaneous crimes, or crimes showing system, are adduced and relied on to connect defendant with the offense on trial, or to develop the res gestæ or to show intent, they should be restricted to this particular phase by appropriate instructions. The rule grows out of the necessity of protecting the accused against conviction of an offense not charged in the indictment, and to guard him from prejudice that might occur on account of such crimes being admitted as evidence. But the evidence under discussion is a part and parcel of this case, belongs to and grows out of it, is not an independent offense, and does not come within the rule invoked by defendant. The instructions fairly presented the law of the case."
In Brown v. State, 24 Texas Crim. App., 170, the prosecution was for perjury alleged to have been committed by accused when he testified at the trial of one Williams for assault to murder. Upon the introduction of one Moore for the defense in the present case, the State offered and was permitted, over the defendant's objection, to read in evidence an indictment then pending against the said Moore, wherein the said Moore was charged with perjury upon the same trial as that in which defendant is charged to have committed perjury. Held, that though the indictment was not admissible to impeach Moore's competency as a witness, it was admissible as a matter to go directly to his credibility and as tending to show a motive for his testimony in this particular case; it being admissible for this purpose, it was not incumbent on the trial judge in his charge to limit and restrict it, inasmuch as it did not tend to exercise a wrong, undue or improper influence upon the jury as to the main issue.
In Crass v. State, 31 Tex.Crim. Rep., over appellant's objection, the prosecution was permitted to prove the prior assault and former conviction. The State relied on circumstantial evidence. The evidence objected to was offered to prove motive and ill will. Where a crime has been committed and the circumstances point to the party on trial charged with such crime, any fact tending to show him to be the perpetrator of the offense is admissible to prove motive, even though such fact or circumstance be remote; and it is competent to prove acts of the accused occuring prior to the assault under investigation, when the acts themselves, taken in connection with other facts or circumstances, prove or tend to show the animus of the accused toward the assaulted party. See this case for a long citation of authorities on the question.
In Sullivan v. State, 31 Tex.Crim. Rep., Judge Simkins, speaking for the court, said: "Antecedent menaces, quarrels and grudges may always be shown to prove malice. Anderson's case, 15 Texas Crim. App., 447; McKinney's case, 8 Texas Crim. App., 626. The testimony of the former attempt upon the life of Beaty only the day before the *626
present assault with intent to murder was committed, was certainly admissible to throw light on the acts of defendant, and prove motive. Carr v. State,
We might multiply the authorities on this question, but in our judgment those already cited are sufficient to demonstrate that the court has uniformly held that it was not error for the court to omit to limit evidence showing motive. Appellant in his able argument insists there is no distinction between motive and intent. As used in the authorities in this court and other courts, there is a distinction; that is, the courts hold that evidence which is part and parcel of the offense, which tends to show the motive actuating the party at the time of the commission of the offense, is not necessary to be limited; whereas a collateral crime, not growing out of the crime in question, is introduced for the purpose of illustrating the intent with which the act was done, and this court has uniformly held that such testimony should be limited, because the jury might appropriate the testimony for other purposes than that for which it was legally introduced. If A assaults B to-day, and to-morrow A meets B and kills B, we can not see how or in what way the jury could use the previous assault except for the purpose for which it was introduced, to wit, to illustrate the deep-seated malice and motive he had for the killing and to make manifest to the jury the animus moving him at the time of the homicide. This is not, as appellant insists, an arbitrary distinction; in our opinion it is one well grounded in the authorities and philosophy of the law. For instance, if one burglarises a house and claims it was done through inadvertence or mistake, a contemporaneous burglary committed by said party is admissible to demonstrate and show to the jury that the burglary then on trial was not done through inadvertence or mistake. This character of testimony might reasonably be used by the jury for a purpose other than that for which it was introduced. This is the philosophic reason for limiting this character of testimony. But where, as stated in some of the authorities reviewed, the evidence is introduced to show malice, it becomes as it were an integral part of the case on trial, and it is not the duty of the court to limit said testimony. Believing that the original opinion is in all respects correct, the motion for rehearing is overruled.
Motion overruled.