Williams v. State , 24 Tex. Ct. App. 637 ( 1888 )

Willson, Judge.

In this case it is conclusively shown by the evidence, and is not controverted by the defendant, that the homicide charged was committed by the defendant, and that it was an unlawful homicide. But it is contended by the defendant that he is not guilty of a higher grade of homicide than manslaughter, and has been illegally and unjustly convicted of murder in the second degree.

To reduce the homicide to manslaughter, the defendant relies upon insulting language used by the deceased to defendant’s wife, the defendant not being present at the time'of such insult, but, having been informed thereof, killed the deceased thereafter, on first meeting with him.

Defendant’s wife testified on the trial that deceased cursed her and made an indecent proposal to her, that is, proposed that she should get in bed with him; that her husband, the defendant, was absent at the time; that, when her husband returned home on the same day of the insult, she informed him of the insult, and on the evening of that day the homicide occurred. The insults and the homicide were in defendant’s house, where deceased at the time was boarding. Upon cross examination by the State of the defendant’s wife, she admitted that in statements made by her about the cause of the homicide, to Hughes, Mrs. Coulson and to the coroner’s jury, she had not mentioned the fact to which she testified on the trial, that the deceased not only cursed her, but that he made an indecent proposal to her. She stated that she had not told any one about said indecent proposal except •her husband and her sister-in-law, but had intimated it to Mr. Hand in narrating the facts to him, and that he advised her not to tell it to any one until the proper time arrived, and that she did not tell it until she testified as a witness on the habeas corpus trial of the case.

Having elicited from the witness these admissions, the State, over the objection of the defendant, was permitted to prove by Mrs. Coulson that the witness had detailed to her the circumstances of the homicide, and had not mentioned the said indecent proposal of the deceased, but, when asked if any such proposal had been made, “denied everything of the sort.”

It is insisted by counsel for the defendant that this portion of the testimony of Mrs. Coulson was improperly admitted. In our opinion, the testimony was not admissible. “A witness called by the opposing party can be discredited by proving that on a former occasion he made a statement inconsistent with his statement on trial, provided such statement be material to the issue. * * * And a witness may be discredited by proof that he now states facts which, on a former trial, he omitted to state. And generally, whenever, on a former occasion, it was the duty of the witness to state the whole truth, it is admissible to show that the witnéss, in his statement, omitted facts sworn to by him at the trial. But it is only upon a denial, direct or qualified, by the witness, that such statements were made, that proof of them can be made.” (Whart. Cr. Ev., secs. 482, 483.)

How, in this case, the witness sought to be impeached not having denied, but having expressly admitted, that she omitted to tell Mrs. Coulson about the insulting proposal testified to by her on the trial, the testimony of Mrs. Coulson in regard thereto was unnecessary, immaterial and improper, and might have produced an unfavorable impression upon the minds of the jury in weighing the testimony of Mrs. Williams. We think it was ■error, and can not say that it was not material error, to admit said portion of Mrs. Coulson’s testimony.

In rebuttal of the impeaching testimony introduced by the State attacking the credibility of the statements testified to by Mrs. Williams as to the indecent proposal made to her by the deceased, the defendant proposed to prove by Mr. Hand that, soon after the homicide, Mrs. Williams had stated to him that the deceased had cursed her, and that deceased had said and done a great deal more than she would like to tell him, witness, but that she was ashamed to mention it to a man, and that he told her that, if the deceased had insulted her by indecent proposáis, not to mention it to any one—that a time might come for her to tell it, but to wait for that time. This proposed testimony was objected to by the State upon the ground that it was not competent for the defendant to prove that the witness had made statements corroborating her testimony on the trial. The objection was sustained and the defendant excepted.

We are of the opinion that the testimony was competent. It has been held by this court, upon the weight of authority, that an impeached witness may be corroborated by proof that he had made the same statements at other times as those testified to by him on the trial, and about which he was impeached. (Bailey v. The State, 9 Texas Ct. App., 98.) The proposed testimony of Hand would show that Mrs. Williams, on the next morning after the homicide, intimated to him that the deceased had not only cursed her, but had made indecent proposals to her, and to this extent corroborated her testimony on the trial. Hand’s testimony also tended to explain why it was that Mrs. Williams had not told Mrs. Coulson and others about said indecent proposals. Mrs. Williams was the defendant’s most material witness. Upon her testimony, and the credit which might be given it by the jury, depended the grade of his offense. It was of vital importance to him that her testimony should go before the jury free from suspicion, and it was his right, if he could do so, to remove by rebutting evidence any doubt or discredit which had been cast upon it by the impeaching evidence of the State. For this purpose we think the rejected testimony of the witness Hand was competent and material, and that the court committed material error in excluding it from the jury.

On the trial an exception was taken to the charge of the court on manslaughter, which exception, we think, must be sustained. The charge complained of instructs the jury that, to reduce the homicide to manslaughter, among other things, the provocation upon which the defendant acted must have arisen at the time of the commission of the offense. Under the facts of this case, this instruction was erroneous. In cases like this, it has been repeatedly held that the requirement of article 594 of the Penal Code, that the provocation must arise at the time of the killing, and that the passion be not the result of a former provocation, is inapplicable, and should not be given in charge to the jury; but that, instead thereof, the jury should be instructed that the time intervening between the slayer’s apprisal of the insult and his first meeting with the deceased is not a material consideration, provided the adequate cause be shown, and the state of the slayer’s mind predicated thereon, did actually exist at the time of the killing. (Willson’s Texas Crim. Laws, secs. 1009, 1022; and see particularly Eanes v. The State, 10 Texas Ct. App., 421, in which case the proper issues to be submitted to. the jury in a case like this are clearly stated.)

Opinion delivered February 1, 1888.

Another exception made to the charge of the court is that it prescribes the forms of verdicts of guilty of murder in the first and second degrees, but omits to prescribe any form for a verdict of guilty of manslaughter, or for a verdict of not guilty. In this respect the charge is imperfect, but perhaps not materially so. It is not essential to the sufficiency of the charge that it should instruct the jury in the forms of verdicts which may be rendered by them, though it is very proper, we think, to do so. But when such instructions are given, they should embrace every verdict which might be rendered in the case, so as to avoid conveying to the minds of the jury any impression as to the opinion of the court as to which of several verdicts should be rendered.

Other exceptions to the charge are urged by counsel for defendant, but are not, in our opinion, well founded. In other respects than those we have mentioned, we think the charge is unobjectionable.

Because of the errors discussed the judgment is reversed and the cause is remanded.

Reversed and remanded.