Logan v. State , 3 Tex. L. R. 561 ( 1885 )

OPINION.

One John Grimsley, a witness for the State, after being examined in chief was asked by the prosecuting officer, “whether 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 not here,” and he said, while she was not sick in bed, yet he thought she was not well enough to come.” To all of which the defendant excepted and moved the court to exclude the evidence, which motion was overruled and a bill of exception 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 review the ruling. (Davis v. State, 14 Ct. App., 645.)

Appellant in his brief urgently insists that the evidence -upon its face being per se inadmissable, immaterial and foreign to any issue, was to say the least of it, an encumbrance to the record and might tend to draw the attentoin 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, it will be presumed to have prejudiced him. (Tyson v. State, 14 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 Mrs. Grimsley was a witness for the state, and was sick and was 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 the 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 liis objections, incorporated into his bill of exceptions, the ground upon which the testimony would tend to prejudice the ease. If the evidence is apparently harmless, though it may b& 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. State, 6 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 deliberation of the jury.” (Whart. Cr. Law, § 3090.)

The second ground relied upon for a reversal of the judgment of conviction in this case is the action of the court in refusiug to permit appellant to prove by Wm. Logan that on the day before the homicide,'one John Tosh, who was a 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 what Tosh had said. (See appellant’s bill of exceptions No. 2 Transcript page 28.) 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 fa,ot sought to be proved ? Not that the threats had in fact been made, but that they had been communicated to the 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 the defendant the fact that deceased had made threats against his life was a fact which could as well be proved by any one who was present and heard Tosh communicate this fact to defendant, as could it have been proved 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 independent facts, admissible to the proof in the issue * * * This doctrine applies to all other communications wherever the fact that such communication was made, and not its truth or falsity, is the point in controversy.” (1 Greenl. Ev. §§ 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 heard by the defendant, was a fact which he could know and testify to as well as Tosh. It was error to exclude the evidence upon the ground that it is 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 as justification unless it be shown that at the time of the homicide, thejjperson killed, by some act then done manifested an intention to execute the threats so made. (P. C. Art. 608.)

In the case we are considering, the theory of the defense was, that at the time the 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 statement made by Tosh to defendant, but upon 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. (Carrico v. Comm., 7 Bush, (Ky.) 124; cases of self-defense, Horragan & 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 t.he charge of the court to the jury" In most instances these criticisms and objections are made to detached portions or paragraghs, 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 right 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 tbe paragraphs the jury were told that “No man can bring-on a dangerous conflict, slay his antogonist and then justify on the ground of self-defense.” This was stating the rule to 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 fact here shown, is tbe one given in G-illeland’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 Tex., 536.) A person cannot avail himself of a necessity which he has knowingly and wilfully brought upon himself.” (Reed v. State, 11 Ct. App. 509; King v. State, 13 Ct. App., 277.)

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

White, P. J.

Reversed and remanded.