Brunet v. State , 12 Tex. Ct. App. 521 ( 1882 )

Hurt, J.

The appellant was convicted of murder of the second degree; his punishment being assessed at confinement in the penitentiary for the term of five years.

There was no person who saw the parties at the time of the shooting. This fact is very important, and should be kept in mind all the while. (The evidence will be given by the Reporters.) The defendant proved, and the State of course made it proper for him to do so, that the deceased was a malicious and dangerous man. The State adduced evidence to the contrary; hence a conflict. The defendant then proposed to introduce in evidence the record of conviction of the deceased for manslaughter. This was objected to by the State, and the court sustained the objection. The question is presented,—was this record competent or admissible evidence ? We think so.

The objection to the introduction of particular acts is the want of information and preparation to meet them by the party; either the witness or the party interested in his testimony. This objection not being applicable in this state of case, the rule does not apply, for no amount of time and preparation would enable the witness or the State to meet and overturn the solemn judgment of a court of competent jurisdiction. At the trial in which he was convicted, the exact nature of the charge was furnished him, and opportunity was given him to prepare and meet the same; in a word, there was no surprise at that trial.

It appears by bill of exceptions that the defendant offered to prove by one Annie Hirshfield,- a witness for the State, on her cross-examination, that the witness had resided in the house of defendant for nine months past, and that, on the night of the homicide, five or ten minutes or about that time (it may have been less) after the last shot had been fired, witness went to defendant’s ice factory, some seventy yards distant, and there found the defendant, who said, “ I am. sorry I was compelled to do what I have done; I was sleeping in the factory when I heard the noise of breaking dishes in the house. I got up and went towards my house and heard Burns say he would kill me, and he was coming towards me with what I thought was a gun in his hands, and saying, “I will kill him, the damned son of a bitch;” and I fired on him twice. I do not know whether I have killed him or not. I will go down to McDonald’s with you, and then go to Belton and surrender myself to the sheriff.” This he did.

It will be remembered that no person saw either of the parties at the time of the shooting. The question is presented, Is this explanation of defendant admissible 2 We think so, especially in view of the evidence of McDonald. The surrounding circumstances demanded an explanation. A failure to explain just when he did explain would, to our minds, have been an inculpatory fact; for, as before stated, the time, presence, in fact all the immediate surroundings, imperatively demanded an explanation. It is, however, objected that this explanation may have been manufactured. Suppose that it had been. Could the State complain 2 If the jury should believe it manufactured, instead of being of benefit to defendant, it would have been a terrible fact against him. All of the authorities hold the suppression,or manufacturing of evidence by defendant to be inculpatory facts. If the explanation was not self-serving but spontaneous, was not the defendant entitled to it ? Who was in danger,— the State ? Hot by any means; for if, as above stated, the jury should believe them self-serving declarations, instead of being exculpatory they would become terrible weapons in the hands of the State to be used against the defendant. If, therefore, the defendant was willing to leave this question, to wit, whether spontaneous or manufactured, to the jury, certainly the State could not complain upon the ground that they may have been manufactured. Who was better prepared to pass upon this question than the jury? The writer alone- is responsible for these observations, and not the court.

We think these declarations of the defendant was a part of the res gestee, so called. The writer is not prepossessed in favor of this term, and therefore will state the proposition thus. The declarations or explanation of the defendant under the circumstances in this case were admissible because they tended evidently to explain the acts of the parties at* the time of the killing; and therefore tended to explain the main act or fact, the killing.

We are of the opinion that the facts in this case demanded a charge on manslaughter, first, to complete the. definition of murder in the second degree; second, because there was evidence tending to present that issue.

We feel it our duty, though a reversal must be liad on other grounds, to express our disapprobation of the conduct of the court in relation to the matters contained in the fifth bill of exceptions. It appears by this bill that the court appointed J. M. Roseborough to assist the county attorney in the prosecution, and that in his argument to the jury he said: “I do not appear before you ■as a hired counsel in this case, but I appear simply at the suggestion of the judge to assist in this prosecution, because the county attorney was worn out.” The defendant objected to these remarks upon the ground that they tended to impress the jury with thé belief that the judge presiding believed the defendant guilty and desired his ■conviction.

We are of the opinion that the defendant had just grounds to object that the remarks of the attorney, whether intended of not, were calculated to have that effect on the minds of the jury. The court, especially when the defendant objected, should have stopped the learned counsel, and should then and there, in a manner not to be doubted, have told the jury that the purpose of the appointment was not to be construed in any such light.

For the errors above indicated the judgment is reversed and the cause remanded.

Reversed and remanded.