Source: 55 Southwestern Reporter, (Texas), pg 326 – 330.
(Court of Criminal Appeals of Texas. Jan 24, 1900.)
CRIMINAL LAW – HOMICIDE – MANSLAUGHTER – PROVOCATION –EVIDENCE – OPINION – DECEASED’S CHARACTER – FORMER ACTS – WITNESS – TESTIMONY BEFORE GRAND JURY – REFRESHING MEMORY.
1. On a trial for murder, a witness testified he
saw defendant on the morning of the homicide, and “thought he looked pale and
haggard. It seemed there was some trouble, some way or another.” It did not
appear that deceased was with defendant, and no act or conversation of
defendant was shown. Neither did it appear how long before the homicide, nor
how near the place of killing, the witness saw defendant. Held, that such
evidence, being the opinion of the witness as to the physical and mental
condition of the defendant, was, under such circumstances, inadmissible.
2. In a capital case, a witness testified that
he talked with deceased for a few minutes on the morning of the homicide, and
that, from the way she talked, she seemed uneasy. Held that, the subject of
deceased’s conversation not being shown, such evidence was inadmissible.
3. In a prosecution for homicide, evidence of
particular acts of the deceased with other parties, having no connection with
the homicide, and tending to show that the deceased was of a violent and
dangerous character, but not shown to have been communicated to defendant prior
to the homicide, was inadmissible.
4. On a plea of self-defense, evidence of the
violent character of the deceased, if known by the defendant or communicated to
him prior to the killing, is admissible to explain the condition of defendant’s
mind at the time of the homicide.
5. In a criminal case, a witness for the state
was asked on direct examination if he had not testified before the grand jury
to certain additional facts. On his replying that he did not think so, and he
did not remember, the court allowed the state to read the witness’ testimony
before the grand jury, for the purpose of refreshing the witness’
recollection. He thereupon answered that he had so testified. Held that, while
this practice was reprehensible, the witness having testified to the facts
sought to be elicited after having his memory refreshed, it was not prejudicial
error.
6. On a trial for murder, the jury may look to
the conduct or the deceased towards the defendant on previous occasions, so
far as it may shed light on what occurred at the time of the homicide, and an
instruction limiting the jury to a consideration of acts of provocation
occurring at the time of the homicide only is error.
Appeal from district court, Clay county; A. H.
Carrigan, Judge.
A. A. Spangler was convicted of murder, and he
appeals. Reversed.
P. M. Stine, F. J. Barrett, L. C. Barrett, Jake
Hedges, J. A. Templeton, and J. M. Hurt, for appellant. Robt. A. John, Asst.
Atty. Gen., for the State.
HENDERSON, J. Appellant was convicted of murder
in the second degree, and his punishment assessed at confinement in the
penitentiary for a term of 50 years, and he prosecutes this appeal.
The evidence shows that deceased, Mrs. S. E.
Whitesides, lived on a place of defendant, or one he had leased, in the
country, some seven or eight miles from the town of Henrietta, the county seat.
They appear to have had some business arrangement by which deceased was to live
on the place, and pasture certain cattle on defendant’s inclosed land or
pasture; and, in consideration of the use of said pasture, she was to cook for
defendant and his hands. Some misunderstanding arose between them a few days
before the homicide, and defendant concluded to cook for himself, and,
evidently, to put an end to the contract between himself and deceased. On
Saturday, two days before the killing, appellant went to the place, carrying
some supplies with him, and arranged for himself and his hands to cook and take
their meals separate from deceased. On Saturday and Sunday he and deceased had
several quarrels or altercations. Sunday evening, however, they appear to have
become reconciled; and on Monday morning appellant assisted deceased in
milking, and in doctoring a calf at the lot or barn. After doctoring the calf,
deceased went to the house, and in a short time defendant also left the lot and
went to the house, and in a few minutes thereafter the shooting occurred. The
shots were fired in the kitchen. No one was present except deceased and
defendant. Immediately after the shots were fired, deceased ran out of the
kitchen onto the porch, and fell on the ground, where she expired in a very
short time. Defendant went immediately to the lot, and told one Smith, who was
an employe on the place, that he had shot and killed deceased. He then got in
his buggy, and he and his son went to Henrietta, where he surrendered to the
officers. The theory of the state was that it was an unprovoked killing.
Defendant insisted that what he did was in self-defense; that deceased had been
quarreling with him and abusing him for the two days previous to the day of the
homicide; that at the house, on the morning of the homicide, she there abused
and insulted him, and drew a pistol from her bosom and attempted to shoot him,
and he thereupon shot and killed her. He further contended that at most it was
only manslaughter, inasmuch as deceased had abused and vilified him during the
two days previous to the homicide, and, among other things, had declared to him
that his wife and daughters were whores. This is a summary of the case, as far
as necessary to be stated.
L. R. Smith was introduced as a witness for the
state, and, over the objections of appellant, he testified to the appearance of
Spangler on the morning of the homicide, as he passed where he was at work,
going to the lot to milk. The question propounded to him was as follows:
"What was Spangler’s manner? How did he look and appear as he came along?
Did he seem to be mad?" To which question witness answered: "Well, I
thought he looked pale and haggard. It seemed as if there was some trouble some
way or another." In the court’s explanation to the admission of this
testimony, he states that this occurred just before the killing. The objection
urged by appellant to this testimony was that said statement was a conclusion
of the witness, and because he ought to be permitted to describe only what
defendant did, and not what he seemed to the witness. It is a rule of evidence
that wherever the physical or mental condition or appearance of a person, or
his manner, habit, or conduct, is relevant to the matter under investigation,
it may be proved. Lawson. Exp. Ev. p. 466; Powers v. State, 23 Tex. App. 42, 5
S. W. 153. The decisions are not uniform as to the extent to which a witness
may go in expressing an opinion as to the physical or mental condition of a
party; some holding that this character of testimony is uncertain, and is
liable to be influenced by the attitude of the witness. In People v. Wolcott
(Mich.) 17 N. W. 78, the question before the court being in regard to the
appearance of defendant when certain footprints were measured, Judge Cooley
uses this language: “The state was allowed, against objection, to show that,
while the footprints were being measured, appellant seemed to be excited. From
this excitement the Jury were expected to draw inferences unfavorable to
accused. No doubt, a guilty party may be excited under such charge, and so
might an innocent party; and the probability that one or the other would be
most affected by the accusation would depend so much upon individual mental and
physical peculiarities, that the mere fact of excitement affords no basis
whatever for any deduction for or against the justice of the charge. But the
evidence of excitement is peculiarly objectionable, because it is likely to be
given, as it evidently was in this case, by persons prepossessed with a belief
in the guilt of the accused, and very certain, from that fact, to draw
unfavorable inferences, and to have what they see magnified by their
imagination.” While this opinion shows the danger of such testimony, yet our
courts appear to allow great latitude in the introduction of such testimony. We
would observe, however, that always, when this character of testimony is
admitted, the particular circumstances surrounding the opinion evidence should
be stated, so as to show its relevancy. In this case the bill shows that
appellant passed the barn where the witness and another were shucking corn.
Deceased does not appear to have been with him. No language or conversation of
appellant is shown. The court, however, states that this occurred just before
the killing. How long before the killing, or how remote from the place of the
killing, is not otherwise shown in the bill. If the appearance of defendant was
so connected with some act of his which had a bearing on the homicide as to
make it relevant, then it might be shown that at that particular time he looked
pale and haggard. However, we are inclined to doubt whether a witness should be
permitted to interpret a pale and haggard appearance as one indicating that
appellant “was troubled some way or another.”
The next bill of exceptions involves somewhat
the same character of question. The state proposed to prove and did prove by
the witness Smith the appearance of deceased, under the following
circumstances: While witness Smith and one King were at the barn at work on the
morning of the homicide, and prior thereto, deceased, Mrs. Whitesides, came out
to the barn; and the witness was asked the following question, to wit: “Did Mrs.
Whitesides remain at the barn, or did she go off somewhere?” He answered: “She
stayed there a few minutes after that, and remarked she was going to take her
calves. Q. Did she seem uneasy about anything, or not?” Defendant objected to
this question on the ground that it called for a conclusion, and was misleading
and hearsay. The objection was overruled, and the state then asked the question
of the witness: “What was her manner?” To which witness replied: “From the way
she talked, she seemed to be uneasy.” This was objected to on the ground that
it was a conclusion of the witness, and when defendant was not present. With
reference to this testimony we make the same observation heretofore made in
regard to the testimony concerning the appearance of defendant, with this
further suggestion: What deceased was talking about is not shown, -- whether
about defendant, or concerning some other matter; and her appearance at that
time is not connected with any relevant fact proved on the trial. Moreover, we
do not believe it was competent for the witness to state that deceased at that
time had an “uneasy look.” We do not believe this was a matter of expert
testimony. What one might consider an uneasy look, another might deem a
composed or pleasant expression of countenance. This character of evidence is
too uncertain to be the subject of opinion testimony. The evidence admitted, as
shown by these two bills, was of a character calculated, in the minds of the
Jury, to operate to the prejudice of appellant. The evidence shows that the
parties had quarreled the night before, but had made friends, and were
apparently friendly at the time the witness testified as to the appearance of
the parties. Now, the Jury would be liable to consider, as far as the testimony
concerning appellant’s expression of countenance was concerned, that the
reconciliation between him and deceased was merely apparent; that his pale and
haggard look, which witness interpreted as indicative of “trouble some way or
another,” was directed towards deceased; and that his feeling towards her was
still secretly hostile. And so with reference to the testimony concerning
deceased’s expression of countenance, which was interpreted to mean that she
was uneasy about something. It may have been considered by the jury to mean
that the difficulty was not really settled, and she was then apprehensive that
appellant might do her injury. We do not believe that this testimony ought to
have been admitted.
The 3d, 5th, 6th, and 11th bills of exception
present the same general question; that is, each of said bills is an exception
to the action of the court in excluding certain testimony showing particular
acts of deceased with other parties, having no connection with the homicide.
Appellant insists that said acts were admissible, because they showed that
deceased was a woman of violent and dangerous character; that such testimony
should be admitted on the same ground that proof of the general character of
deceased is admissible, and in lieu of, and as a substitute for, such proof;
that it was a dispute as to what demonstrations were made at the time of the
homicide by deceased, and the testimony was admissible as tending to explain
the character of deceased, and the probable truth as to what occurred at the
time of the homicide, as related by appellant. It is sufficient to say that
these particular acts were in no wise connected with the homicide, were not
communicated to appellant, and were not shown to have operated upon his mind,
and we do not believe that the court erred in rejecting the same. For a full
discussion of this question, see Heffington v. State (Tex. Cr. App.; Tyler
term, 1899) 54 S. W. 755.
Appellant’s seventh bill of exceptions complains
that the court erred in refusing to permit him to prove by deceased’s husband
particular acts of the deceased, indicating that she was a violent and
dangerous woman; and also, as a part of said bill, appellant proposed to prove
by said witness that deceased was a woman quick to anger, and high-tempered;
that she could not control herself when she became very mad, but would strike a
person, if he had done her an injury. If this be considered evidence of her
actual character, it is so intermingled with testimony of the particular acts
of deceased as not to be severable therefrom; that is, the objection as to the
whole mass of testimony included this. Moreover, we do not think, as presented,
that this can be considered as evidence that deceased was a quarrelsome and
dangerous woman. Appellant, however, contends that it is such evidence, and is
admissible as tending to corroborate the testimony of appellant as to how the
difficulty began; that is, as showing that deceased, as testified by appellant,
was the aggressor in the difficulty. We are advised of no case in this state
where it has been distinctly held that evidence of the actual character of
deceased is admissible. The authorities, so far as we are advised, confine this
character of testimony to evidence of general reputation. Appellant, however,
refers us to State v. Lee, 22 Minn. 407; State v. Sterrett, 68 Iowa, 76, 25 N.
W. 936; Marts v. State, 26 Ohio St. 168. We have examined these cases, and each
of them is authority to the effect that a witness who knows the actual
character of a deceased person can testify to such character, when that kind of
evidence is relevant to an issue in the case. It would appear that, where proof
of actual character is relevant (that is, tends to solve some issue in the
case) the writer of this opinion is inclined to the view that such testimony ought
to be admitted. For instance, in a certain character of case, where it is
doubtful who began the difficulty, then it would seem that, if deceased had an
actual character as being a dangerous and violent man, such evidence ought to
be admitted on the same principle that evidence of general reputation is
admissible to solve the same question. Or if, in a given case, it becomes an
issue whether the defendant acted in self-defense, under the honest belief that
he was in danger, then he might testify that he knew his adversary was a
dangerous and violent woman. Or if some other witness knew this fact, and
communicated it to defendant, he ought to be allowed to prove it. This
character of evidence is admissible on the general principle that it is
admissible to prove any fact, hearsay or not, which goes to explain the
condition of a person’s mind, when such condition is at issue; and, “whenever
the issue is whether one actually believes himself attacked, he can put in
evidence any fact that would tend to prove the bona fides of his belief.”
Whart. Hom. § 606. But, as stated before, the bill does not present the
question in a shape in which it can be considered. Under the bill as presented,
especially as explained by the court, we think the testimony of Spangler on cross-examination
was admissible, as tending to show how he claimed a half interest in said herd
of cattle. The difficulty appears to have originated in regard to these cattle,
and appellant’s claim of interest in same; and on his original examination, we understand,
he so testified. This made it competent for the state, on crossexamination, to
prove the nature of his claim.
The tenth bill of exceptions shows that while
Charley Spangler, a son of defendant, was on the stand as a witness for the
state, and after be had testified that on the day of the homicide he came to
town with his father, and that as he came to town his father told him that he
had shot and killed Mrs. Whitesides; that she had made a gun play at him, and
tried to kill him, and he shot her, -- thereupon the state’s counsel asked said
witness if he had not testified before the grand jury, in addition to what he
had here testified, as follows: That after she jerked the pistol out of her
dress somewhere, and snapped it at him, he then shot her, first in the breast,
and that she turned and grabbed at a knife or butcher knife, and he shot her in
the side, to which witness replied that he did not think he had so testified;
that he did not remember his father saying anything about a butcher knife. At
this juncture state’s counsel produced the testimony of said witness taken
before the grand Jury, and insisted on reading said testimony to the witness,
and examining him in regard thereto. Counsel for defendant objected to this
procedure on the ground that the witness was the state’s own witness, and he
had not testified to any fact injurious to appellant, and therefore there was
no ground to contradict him, and they could not use said testimony for the
purpose of impeachment; and, besides, they could not go into the grand-jury
room for testimony of impeachment. Counsel for the state insisted on reading
said testimony to the witness for the purpose of refreshing his memory.
Defendant objected because the witness had answered every question promptly; he
was not an unwilling witness, and they could read no paper to him for any
purpose; that the witness might take the testimony to refresh his memory, but
they could not read it before the Jury in order to refresh the witness’ memory.
The court overruled appellant’s objections, and allowed the state to read from
said testimony to the witness before the jury, for the purpose of refreshing
his memory. After his memory was so refreshed, he answered that he recollected
his testimony as stated in the evidence before the grand Jury; and he then
testified his father told him that after she drew a pistol on him, and he shot
her, deceased then turned and grabbed at a knife on the table. While this mode
of procedure, in thus refreshing the witness’ memory, was objectionable, and
the proper practice would have suggested, if counsel desired to refresh his
memory, to take the witness aside and have him read his testimony, and thus
refresh him, yet we cannot see how the method adopted was calculated to
prejudice appellant, inasmuch as the witness’ recollection was refreshed, and
he then testified to the facts as stated in his former testimony, Fitzpatrick
v. State, 37 Tex. Cr. R. 20, 38 S. W. 806; Rhea v. State (Tex. Cr. App.) 38 S.
W. 1012. The position assumed by counsel, that the witness could not be
impeached, he not having testified to any fact injurious to appellant, is
perfectly sound. But we do not understand from the bill that this was the
purpose of the state in reading the grand-jury record to the witness. The explanation
of the court shows that the grand-jury record was not introduced in evidence at
all, and was only used to refresh the witness. Of course, it would not have
been competent to go into the grand-jury room to have impeached the witness,
unless his truthfulness on the particular matter had become an issue in the
case. Hines v. State, 37 Tex. Cr. R. 339, 39 S. W. 935; Gutgesell v. State
(Tex. Cr. App.) 43 S. W. 1016. We would, however, observe that the practice
pursued here was reprehensible. To illustrate this: If the witness’ memory had
not been refreshed, and he had refused to testify to the additional facts
stated in the bill of exception, which was shown him in his grand-jury
examination, then the state would, indeed, have been in a predicament. Charley Spangler
was a witness for the state, and he had testified to no fact detrimental to the
state, and the state would not have been authorized to contradict him by
showing that he had testified to an additional fact before the grand jury. It
could only contradict him where he had testified to some affirmative fact
detrimental to the state, and then only where the attorney for the state had
been taken by surprise at the testimony of his own witness. So far as we are
able to discover from the bill here, the witness did not remember the
additional fact; and the state was permitted, over the objections of appellant,
to parade the witness’ testimony taken in the grand-jury room, before the petit
jury trying the case. As stated before, while this was not a correct practice,
and is an indirect method of going into the grand-jury room before the petit
jury, without authority of law, yet, the witness’ memory having been refreshed
thereby, and he having answered the question, it is not such error as would
authorize a reversal of this case.
Appellant objected to the charges of the court on manslaughter. Said charges are found from paragraphs 13 to 17, inclusive, and in paragraph 20. The ground of objection urged to these charges is to the effect that same are too restrictive, in that the charge on manslaughter confined the jury to the adequate cause occurring at the very time of the homicide. We have examined the charges on manslaughter carefully, and, in our opinion, the charges do restrict the jury, as to the act of provocation, to the very time of the homicide. For instance, in subdivision 14 the court told the jury that the provocation must arise at the time of the killing, and the passion must not be the result of a former provocation, and the act must be the direct result of the passion arising out of the provocation at the time of the killing; that it was not enough that the mind was merely agitated by passion arising from some other provocation, or a provocation given by some other person than the party killed. And in subdivision 16 the jury were further informed by the court that insulting words of the person killed, towards female relatives of the person guilty of the homicide, was adequate cause, and that any condition or circumstance capable of creating, and which does create, sudden passion, etc., is adequate cause; that in order for a killing to be manslaughter, on the ground of insults to a female relative, it must appear that the same look place immediately after the insulting words, etc. In subdivision 20 the court simply tells the jury, if they believe defendant was moved by some adequate cause, at the time of the killing, to such a degree of anger, rage, etc., as to render him incapable of cool reflection, and that in such state of mind, and not in his lawful self-defense, he killed said Mrs. Whitesides, to find him guilty of manslaughter. These are all the clauses of the charge that have any bearing on the question, and we fail to find any instruction on manslaughter that authorized the jury to take into consideration all the facts and circumstances in evidence bearing on the question of provocation at the time. The only question for our consideration is, was said charge calculated to injure or prejudice appellant? If there was no testimony bearing on this issue, aside from the provocation at the time, then the charge was without prejudice; but if there was evidence in the case tending to intensify the provocation given by deceased at the time, as claimed by appellant, then said charge was too restrictive. An examination of the record discloses that appellant testified that at the time deceased called him in the kitchen, after some conversation, she began to abuse and bemoan him, applying vile epithets to him and, among other things, she told him that his wife and daughters were whores. An examination of the record also disclosed that this witness and others testified that there was a previous misunderstanding between appellant and deceased; that on Saturday and Sunday, before the homicide, they had frequent quarrels and altercations; that on said occasion she abused and bemoaned appellant, cursing and denouncing him as a black son of a bitch; and that she also stated his wife and daughters were whores, and that she and one of her sons had caught one of his daughters in the act. Now, while, under the charge of the court, the jury could regard the statement alleged by defendant to have been made to him by deceased at the time of the homicide, to wit, that his wife and daughters were whores, yet the effect of the charge was not only to limit them to this provocation, but to cut the jury off from any consideration of similar charges made by deceased to defendant in regard to his wife and daughters, as well as former abuse and vilification of himself by her. While it is true that the provocation must arise at the time, or be so closely connected therewith as not to allow cooling time, and a defendant is not authorized to act on some former provocation, yet, as we understand the rule of law and the decisions on that subject, the jury are authorized to look to the acts and conduct of the deceased on former occasions, so far as they may shed light on what occurred at the time of the homicide. Woodring v. State, 34 Tex. Cr. R. 419, 30 S. W. 1060; White v. State, 34 Tex. Cr. R. 153, 29 S. W. 1094; Bracken v. State, 29 Tex. App. 362, 16 S. W. 192. Unquestionably, the previous denunciation of appellant’s wife and daughters as being whores would serve to aggravate and intensify the denunciation of them as such at the time of the homicide. Yet, under the charge of the court, the jury were restricted from taking into consideration such testimony. We believe that defendant was entitled to have a full and fair charge authorizing the jury, in determining whether or not the adequate cause existed at the time of the homicide, to take into consideration all the facts and circumstances in evidence bearing on that issue; and, as we understand it, the charge in question cut them off from, and was a limitation on, this right, and, as such, it might have worked material injury to appellant’s rights. The judgment is accordingly reversed, and the cause remanded.