Logan v. State , 17 Tex. Ct. App. 50 ( 1884 )

White, Presiding Judge.

One John Grimsley, a witness for the State, after being examined in chief was asked by the prosecuting officer “ if his mother was not a witness for the State in this cause;” to which he answered in the affirmative. The State’s attorney then asked said witness “ why she was nob here,” and he said while she was not sick in bed, yet he thought that she was not well enough to come.” To all of which defendant excepted and moved the court to exclude the evidence, which motion was overruled and a bill of exceptions was reserved by defendant. This bill of exceptions does not state the grounds of objection urged to the evidence, and, failing to do so, we are not authorized or called upon to revise the ruling. (Davis v. The State, 14 Texas Ct. App., 645.)

Appellant in his brief urgently insists that the evidence, upon its face, being per se inadmissible, immaterial and foreign to any issue, was, to say the least of it, an incumbrance to the record and might tend to draw the attention of the jury from the true issue and thereby prejudice the rights of appellant; and the rule is invoked that, ■whether it had such effect or not, it, being incompetent and having been admitted over objection, will be presumed to have prejudiced him. (Tyson v. The State, 14 Texas Ct. App., 388.) We do by no means dispute the correctness of the rule to the legitimate extent to which it applies, but we cannot see in this instance that the statement that llrs. Grimsley was a witness for the State, and was sick and unable to attend the trial, would in itself have any tendency to distract the minds of the jury from the issues in the case, and necessarily tend to prejudice the rights of defendant. A number of matters have to be inferred before we would be warranted in concluding that it could possibly have such effect. To entitle the defendant to a revision of the ruling, he should have shown by his objections, incorporated into the bill of exceptions, the grounds upon which the testimony would tend to prejudice the case. If the evidence is apparently harmless, though it may be per se incompetent, we imagine it would not be ground for reversible error. To be reversible error — that is, such as would warrant this court in reversing upon the ground of its incompetency—it must appear or be made to appear wherein it would also tend to prejudice the defendant. “ A judgment, even in a criminal case, will not be reversed for immaterial errors.” (McKnight v. The State, 6 Texas Ct. App., 158.) If .the tendency of the evidence appears prejudicial or injurious, courts will then indeed rarely presume that the particular evidence which had been wrongfully admitted could have no influence on the deliberations of the jury.” (Whart., Cr. L., § 3090.)

The second ground relied upon for a reversal of the judgment of conviction in this case is the action of the court in refusing to permit appellant to prove by Wm. Logan, that, on the day before the homicide, one John Tosh, who was the hired hand of the deceased Smith, had warned the appellant to be on his guard, as Smith was hunting for appellant, and would hurt him, and that on the day of the killing, and prior thereto, the said John Tosh came to the house of said witness, William Logan, and told him, witness, “ For God’s sake to tell Dallas Logan, appellant, to look out, for that little Peter Smith, the deceased, was hunting for him, and swore that he would have cattle, blood or something else; ” and that he, witness, had, prior to the homicide, informed appellant of wThat Tosh had said. The court in excluding this evidence appended to the bill of exceptions a statement that “Any proof tending to prove threats, except hearsay, would be admitted.” The offered evidence was therefore excluded as hearsay.

Was the evidence hearsay? What was the fact sought to be proven? Not that the threats had in fact been made, but that they had been communicated to defendant. If the object had been to prove that the threats had been made, then, indeed, the fact that Tosh said they had would have been hearsay and inadmissible. But that Tosh had communicated to defendant the fact that deceased had made threats against his life was a fact which could as well be proven by any one who was present and heard Tosh communicate this fact to defendant as could it have been proven by Tosh himself. This would not be hearsay. Mr. Greenleaf says: “ It happens in many cases that the very fact in controversy is whether such things were written or spoken, and not whether they were true. . . . In such cases it is obvious that the writings or words are not "within the meaning of hearsay, but are original and independent facts, admissible in proof of the issue. . . . This doctrine applies to all other communications wherever the fact that such communication wras made, and not its truth or falsity, is the point in controversy.” (1 Greenl. Evid., §§ 100, 101.)

If the witness Logan heard Tosh communicate to defendant the fact that the threat had been made by Smith, then the testimony of Logan that such communication was made was not hearsay; that it was made to defendant was a fact wrhich he could know and testify to as well as Tosh. It was error to exclude the evidence upon the ground that it was hearsay.

That the "evidence was important and material cannot be questioned. Where a defendant seeks to justify his action, when accused of murder, upon the grounds of threats against his life, our Code permits him to introduce evidence of such threats whether communicated or not, but no threats are allowed to afford justification unless it be shown that, at the time of the homicide, the person killed, by some act then done, manifested an intention to execute the threat so made. (Penal Code, art. 608.)

In the case we are considering the theory of the defense was that, at the time defendant drew his pistol, the deceased, by his acts and conduct, was apparently about to draw a weapon to be used upon defendant, and that defendant drew and fired his pistol to prevent the danger and in defense of his own life. In view, then, of this theory of the defense, the admissibility of the excluded evidence did not depend upon the truth of the statements made by Tosh to defendant, but on the effect which it might produce on his mind as an inducing cause for more prompt action on his part to prevent the apprehended danger. (Carico v. Comm., 7 Bush., Ky., 124; Cases of Self-defense, Horrigan & Thompson, 389.) Considered in this aspect of the case, the evidence was both material and important, and the court erred in its exclusion from the jury.

Several objections are urged to the charge of the court to the jury. In most instances these criticisms and objections are made to detached portions and paragraphs, whilst at the same time it is admitted that the supposed errors are fully corrected and supplied by other portions of the charge. A general rule is that a charge must be considered as a whole, and, if good when so considered, objections to detached portions will not be held to be reversible error. In this case, most of the objections thus urged are, in our opinion, not of a character to have likely misled the jury or injured the rights of defendant, when we consider the objections in the light of the whole charge. There is one, however, which we think does not come within the rule, and which submits a question for serious consideration. In one of the paragraphs the jury were told that “ no man can bring on a dangerous conflict, slay his antagonist, and then justify on the ground of self-defense.” This was stating the rule too broadly, and was calculated to mislead the jury. As said by appellant’s counsel in his brief, under this charge “ a person would be guilty of murder, although he may have innocently or ignorantly brought on a dangerous conflict in which his adversary is slain. It would make no difference whether he brought it on wrongfully or rightfully. The only question is: Did he bring on a dangerous conflict? If he did, he is guilty of murder. It makes no difference, under this charge, what the intention of the defendant was, or what steps he may take to avoid the necessity of killing his antagonist, after the difficulty had been brought on, he is a murderer.”

Upon this subject the proper rule, as applicable to the facts here shown, is the one announced in Grilleland’s case as follows: “ If the defendant voluntarily engages in a combat, knowing that it will or may result in death, or some serious bodily injury which may probably produce the death of his adversary or himself, or by his own wrongful act brings about the necessity of taking the life of another to prevent being himself killed, he cannot say that such killing was in his necessary self-defense; but the killing will be imputed to malice, express or implied, by reason of the wrongful act which brought it about or malice from which it was done.” (44 Texas, 356.) A person cannot avail himself of a necessity which he has knowingly and wilfully brought upon himself. (Reed v. The State, 11 Texas Ct. App., 509; King v. The State, 13 Texas Ct. App., 277.)

For the errors pointed out, the judgment is reversed and the cause remanded for a new trial.

Reversed, and remanded.

[Opinion delivered October 22, 1884.]