Irvine v. State , 26 Tex. Ct. App. 37 ( 1888 )

White, Presiding Judge.

This is a second appeal in this-case. At the first trial in Montague county, appellant was convicted of murder in the second degree, and his punishment fixed at five years in the penitentiary. (Irvine v. The State, 20 Texas Ct. App., 12.) After the case was reversed on the former appeal by this court the venue was changed to Wise county, and this present appeal is from a judgment of conviction in the latter county, upon a trial wherein defendant Avas found guilty of manslaughter, with punishment again affixed at five years in the penitentiary.

Defendant objected to a portion of the testimony of the State’s witness Mathews, who said: “I thought the defendant, J. S. Irvine, had a pistol,” the objection being upon the ground that the Ayitness could not testify as to his impression. The witness said: “It was my 'best impression that defendant did have a pistol,’’ and upon being asked what that impression was based upon, he said: “Upon the way defendant held his hand.”

Discussing the admissibility of such evidence, the learned author, Mr. Wharton, says: “The limitedness both of human observation and human expression forbids the reproduction of any fact exactly; it is enough if a witness swears to events and objects according to his best recollection and belief. But it is no objection to to the admissibility of such evidence that the witness uses the term ‘impression’ if he testifies to what he believes, however distrustful he may be as to perfect accuracy. It is for the jury to determine how far such ‘impressions’ are reliable. So a witness is allowed to state why certain facts are impressed on his memory, if such reasons are not for other grounds inadmissible. Impressions, however, which are conjectural and uncertain can not be detailed.” (Whart. Crim. Ev. (8 ed.), sec. 462; see also, Powers v. The State, 23 Texas Ct. App., 43.)

We are of opinion the “impression” was entirely conjectural, and too uncertain to be admitted as evidence. The witness does not even state that he saw anything at all in defendant’s hand, nor the mode and manner in which defendant held his hand so as to impress him that he did have a pistol.

Another exception was reserved in connection with the testimony of Mrs. Kerr, the wife of deceased. After she had testi fled that deceased was crippled in his left arm, and that the bone in the elbow of that arm had been taken out, the prosecu ■ tion asked the witness when and where he had received the injury; to which the defendant objected because immaterial and irrelevant. But the court overruled the objection, and witness answered: The deceased received this injury in the Confederate army.” Defendant then also moved the court to exclude this evidence because the circumstances under which the injury was received were irrelevant and immaterial; which motion was also refused.

Opinion delivered June 27, 1888.

The evidence as to how and when and where the injury was received was in this case most thoroughly irrelevant and immaterial. If the defense had been endeavoring to show that the deceased was violent, turbulent and frequently embroiled in difficulties and strifes, and evidence had been adduced showing he had been disabled by a gun shot, it might have been legitimate, in order to counteract the impression that he had been disabled in such private broils, to. make the proof. But such was not the case. In his able brief defendant’s counsel says of this evidence: Tt is worse than immaterial; it not' only fails to illustrate the question upon trial, but it brings ■ foreign matter into the case of such a character as was highly ; injurious to the rights of appellant. It was calculated to arouse . on the side of the State a feeling for the hero who so nobly \ poured out his blood in defense of his country.’ ” We are of j opinion the evidence was inadmissible, and was of a character | which could be used, after its admission, in creating a sym j pathy for deceased prejudicial to defendant, whether it was so ¡ used or not.

For the errors in the admission of inadmissible and prejudi- j cial evidence, the judgment is reversed and the cause re- I manded. Reversed and remanded.