Weaver v. State , 46 Tex. Crim. 607 ( 1904 )

This case was affirmed at the recent Dallas term, and is now before us on rehearing.

The only question we deem necessary to review is the insistence in the motion for rehearing that the court erred in holding in the original opinion that the trial court committed error in failing to limit the evidence tending to show motive to the purpose for which it was introduced. Appellant's counsel in motion and in their able argument before the court insist that the decision cited in the original opinion, to wit, Terry v. State, 8 Texas Ct. Rep., 570, is at variance with all the other decisions of this court, and is not a proper enunciation of the law on the question. To answer appellant's contention we will review some of the authorities: In Naverrete v. State, 40 S.W. Rep., 791, Judge Henderson delivering the opinion of the court uses this language: "We presume, as stated before, that it was introduced for the purpose of tending to show motive on the part of appellant in the homicide. At least the testimony was admitted and it might have some bearing on that issue. It appears that the court promptly checked the district attorney in attempting, as it seems, to use said testimony for another and illegitimate purpose; that is, merely to show that defendant was a bad man. It seems that the court acted upon the suggestion of appellant, and in the absence of a special charge requested on the subject and refused, we fail to see that the court was required to do more than was done; and we do not believe that the colloquy that ensued between the court and counsel on this subject was calculated to injuriously affect appellant. Nor was it necessary nor required, as insisted by counsel for appellant, that the court should limit this testimony in his charge to the question of motive on the part of appellant. Such a charge was not requested, and if given it appears to us would have been subject to criticism as a charge upon the weight of the testimony. The jury was not likely to appropriate said evidence to any other purpose than as evidence of motive."

In Foster v. State, 32 Tex.Crim. Rep., Judge Davidson delivering the opinion, the court say: "It is insisted that this evidence was introduced for the purpose only of showing the willfulness and deliberation on the part of defendant when testifying before the grand jury, and was therefore extraneous matter and should have been restricted to that particular phase of the case by the charge of the court. Deliberation and willfulness are not extraneous matters in perjury cases, but essential elements of the offense, and without which it can not be committed. Evidence which proves or tends to prove such issue goes to the very substance of the crime of perjury. It is only when the extraneous matter is admitted in evidence for a specificcollateral purpose that the court is required to limit and restrict the testimony to such specific purpose. The rule invoked by defendant does not obtain when the admitted testimony proves or tends to prove the main fact."

It will be seen from these excerpts that the distinction is here clearly laid down, as enunciated in Terry v. State, supra, that is, the court makes the distinction between evidence tending to prove motive and that which tends to prove intent. If the crime is a collateral crime, and introduced for the purpose of illustrating the intent of the accused in the case then on trial, it is necessary under the decision to limit said collateral and independent crime to the specific purpose for which it was introduced. But where the evidence introduced is an essential element of the offense itself, such as motive, it is not necessary to limit the same in the charge of the court, because such evidence can be appropriated by the jury for but one rational purpose — i.e., to illustrate and make manifest the motive of appellant in the commission of the crime.

In Hall v. State, 31 Tex.Crim. Rep., evidence of previous assaults, quarrels, threats and ill treatment had been admitted. The court used this language: "The court did not err in failing to charge upon the effect of this evidence, and in omitting to restrict it as a fact tending to prove motive or malice. The authorities cited by appellant sustain the proposition that when independent contemporaneous crimes, or crimes showing system, are adduced and relied on to connect defendant with the offense on trial, or to develop the res gestæ or to show intent, they should be restricted to this particular phase by appropriate instructions. The rule grows out of the necessity of protecting the accused against conviction of an offense not charged in the indictment, and to guard him from prejudice that might occur on account of such crimes being admitted as evidence. But the evidence under discussion is a part and parcel of this case, belongs to and grows out of it, is not an independent offense, and does not come within the rule invoked by defendant. The instructions fairly presented the law of the case."

In Brown v. State, 24 Texas Crim. App., 170, the prosecution was for perjury alleged to have been committed by accused when he testified at the trial of one Williams for assault to murder. Upon the introduction of one Moore for the defense in the present case, the State offered and was permitted, over the defendant's objection, to read in evidence an indictment then pending against the said Moore, wherein the said Moore was charged with perjury upon the same trial as that in which defendant is charged to have committed perjury. Held, that though the indictment was not admissible to impeach Moore's competency as a witness, it was admissible as a matter to go directly to his credibility and as tending to show a motive for his testimony in this particular case; it being admissible for this purpose, it was not incumbent on the trial judge in his charge to limit and restrict it, inasmuch as it did not tend to exercise a wrong, undue or improper influence upon the jury as to the main issue.

In Crass v. State, 31 Tex.Crim. Rep., over appellant's objection, the prosecution was permitted to prove the prior assault and former conviction. The State relied on circumstantial evidence. The evidence objected to was offered to prove motive and ill will. Where a crime has been committed and the circumstances point to the party on trial charged with such crime, any fact tending to show him to be the perpetrator of the offense is admissible to prove motive, even though such fact or circumstance be remote; and it is competent to prove acts of the accused occuring prior to the assault under investigation, when the acts themselves, taken in connection with other facts or circumstances, prove or tend to show the animus of the accused toward the assaulted party. See this case for a long citation of authorities on the question.

In Sullivan v. State, 31 Tex.Crim. Rep., Judge Simkins, speaking for the court, said: "Antecedent menaces, quarrels and grudges may always be shown to prove malice. Anderson's case, 15 Texas Crim. App., 447; McKinney's case, 8 Texas Crim. App., 626. The testimony of the former attempt upon the life of Beaty only the day before the present assault with intent to murder was committed, was certainly admissible to throw light on the acts of defendant, and prove motive. Carr v. State, 41 Tex. 543. There were no special charges asked, nor exceptions reserved to the general charge for not limiting the effect of the testimony to the proof of motive only, and we can not see how any injury was caused by the failure of the court so to charge, as we see no reason for believing defendant was convicted for the first assault."

We might multiply the authorities on this question, but in our judgment those already cited are sufficient to demonstrate that the court has uniformly held that it was not error for the court to omit to limit evidence showing motive. Appellant in his able argument insists there is no distinction between motive and intent. As used in the authorities in this court and other courts, there is a distinction; that is, the courts hold that evidence which is part and parcel of the offense, which tends to show the motive actuating the party at the time of the commission of the offense, is not necessary to be limited; whereas a collateral crime, not growing out of the crime in question, is introduced for the purpose of illustrating the intent with which the act was done, and this court has uniformly held that such testimony should be limited, because the jury might appropriate the testimony for other purposes than that for which it was legally introduced. If A assaults B to-day, and to-morrow A meets B and kills B, we can not see how or in what way the jury could use the previous assault except for the purpose for which it was introduced, to wit, to illustrate the deep-seated malice and motive he had for the killing and to make manifest to the jury the animus moving him at the time of the homicide. This is not, as appellant insists, an arbitrary distinction; in our opinion it is one well grounded in the authorities and philosophy of the law. For instance, if one burglarises a house and claims it was done through inadvertence or mistake, a contemporaneous burglary committed by said party is admissible to demonstrate and show to the jury that the burglary then on trial was not done through inadvertence or mistake. This character of testimony might reasonably be used by the jury for a purpose other than that for which it was introduced. This is the philosophic reason for limiting this character of testimony. But where, as stated in some of the authorities reviewed, the evidence is introduced to show malice, it becomes as it were an integral part of the case on trial, and it is not the duty of the court to limit said testimony. Believing that the original opinion is in all respects correct, the motion for rehearing is overruled.

Motion overruled.