Nami v. State , 97 Tex. Crim. 522 ( 1924 )

In deciding the point upon which the reversal is based in the original opinion, this court has not done violence to or extended the practice concerning the law applicable to one who, for the purpose of an explanation, seeks another while armed with a pistol or other deadly weapon. That one by doing so does not necessarily forfeit the right of self-defense is declared in Shannon's case, 35 Tex.Crim. Rep., and many others following it. That under such circumstances the duty does not devolve upon the trial court to instruct the jury that by such conduct the right of self-defense is not forfeited, except in instances where the facts justify and the court gives a charge on the law of provoking the difficulty, was decided in Williford v. State,38 Tex. Crim. 395.

The announcement in the present case applies to another principle, namely, that one may take life to prevent the murder of another person; that in doing so the law throws around him the same shield as though he were defending himself. In the statute, it is said: "Homicide is permitted by law when inflicted for the purpose of preventing the offense of murder, etc." (Art. 1105, P.C.)

The circumstances under which one may act are defined in the same statute, Article 1105, P.C.

In the books are many cases decided by this court giving effect to the statute. See Glover v. State, 33 Tex.Crim. Rep.; Vernon's Texas Crim. Stat., Vol. 2, p. 648, note 10.

When there is evidence from which the jury might draw the inference that one charged with homicide or assault acted in the defense of another, the obligation rests upon the trial court, upon demand of the accused, to give to the jury a charge upon that subject, and this principle prevails notwithstanding the appellant may testify that he acted in his own defense. See Bonner v. State, 29 Texas Crim. App., 223; Sowell v. State,32 Tex. Crim. 482; Carden v. State, 62 Tex.Crim. Rep.; Knight v. State, 84 Tex.Crim. Rep.; Voight v. State,53 Tex. Crim. 268; Medina v. State, 87 Tex.Crim. Rep..

In the present case, according to the theory advanced by the appellant, resting upon his testimony, the initial step taken by him in the difficulty which culminated in the death of the deceased was the appellant's interposition against the execution of the threat by the deceased to kill his wife. This is made plain in the original opinion. The propriety of, and upon demand, the necessity for instructing the jury in appropriate language that the law gave the appellant the right to prevent the deceased from killing his wife, to the writer, seems obvious. Without such an instruction, it would have been not unnatural for the jury to have assumed, taking into account the entire situation developed by the record, that in interfering with the deceased when he appeared to be endeavoring to enter the room of his wife, after he had threatened to kill her, the appellant was in the wrong and a meddler in the affairs of another.

In the charge on the right to defend himself, the jury was instructed that the appellant had the right to resist an unlawful attack which, viewed from his standpoint, put him in danger of death or serious bodily injury. The evidence which called for a charge upon his right to defend himself was that in which he claimed that he was attacked by the deceased in connection with the appellant's interference with the deceased in his effort to force himself into the room of his wife immediately after he had threatened to kill her. Whether the assault by the deceased which the appellant described was lawful or unlawful, or appeared to him to be unlawful, would have been made much plainer to the jury if they had been told that in attempting to prevent the deceased from assaulting his wife, the appellant was within his rights.

The appellant insists that the opinion heretofore rendered should be modified in several respects. Among others, he takes the position that in upholding the action of the trial court in excluding the testimony of Uffie McClean to the effect that she and the appellant, in the presence of a lady in the city of Austin, talked about a previous engagement, this court was in error. The fact that they were engaged to be married prior to the homicide was in evidence. Appellant insists that the excluded testimony should have been received because the State, by innuendo, had attacked the veracity of the witness Uffie McClean, by whom the appellant had proved that the engagement existed. The rule under which a witness may be supported by prior consistent statements is not obscure. It is stated in these words:

"Where the State's case is that the defendant's witness testified under corrupt motives, or where the testimony goes to charge the witness with a recent fabrication of his testimony, it is error to exclude proof of similar statements in consonance with the testimony of the witness made before any motive existed to make a false statement about the matter." (Branch's Ann. Texas. P.C., Sec. 183, subdivision 4.) See also Taylor v. State, 87 Tex. Crim. 331.

It is our conception of the record that it does not show an attack on the testimony of Miss McClean warranting the introduction of the proffered testimony. If there was an attack upon her, the details are not given, and we are not in a position to determine from the conclusions stated in the bill that in rejecting the testimony the learned trial judge was in error.

Concerning the proffered testimony of the witness Ruiz that the appellant "advised and urged Mrs. Ross to let Mr. Ross in and interceded for him, saying: "Uncle John, I don't want you to come in and treat mamma like you did the other day," and Ross' reply: "No, I won't do anything; I want to go in and lie down," we are again obliged to confess our inability to discern from the bill that error was committed. If all the words that were used were those which have been quoted in the opinion and which were set out in the bill, we fail to perceive their materiality. They appear admonitions to Ross rather than a request of his wife. If the appellant said anything to Mrs. Ross by way of urging her to permit the deceased to enter the house, the words are not revealed by the bill. From this silence of the bill touching other words used, the assumption on appeal is justified that those set forth in the bill constitute all that are relied upon by the appellant.

Relative to the testimony of the witness Rogers reproducing a part of the conversation between himself and Mrs. Ross, to which reference is made in the original opinion, it is the claim on the part of the State that the evidence complained of was received with the consent of the appellant's counsel. This was denied. The learned trial judge does not seem to have settled the controversy further than to attach to the bill of exceptions some twenty pages of the stenographer's notes, and from this we infer that in receiving the testimony, it was deemed by the learned trial judge either germane to the direct examination or admitted with the consent of the accused and his counsel. Upon the original hearing, our attention was not directed to the manner in which the bill was qualified. It will doubtless not present itself in the same manner upon another trial, and a discussion or analysis of the qualification and the bill now seems unnecessary, further than to say that as original testimony the declaration would not be admissible. Whether it would be proper on cross-examination depends upon the scope of the direct examination of the witness on another trial.

In his motion for rehearing, appellant assails the upholding of the action of the trial court in receiving in evidence certain declarations of the deceased. The declarations are such as would be excluded under the rule against hearsay unless they come within the scope of the exception to that rule known as res gestae. A general statement of the rule of res gestae is found in Greenleaf on Evidence, Vol. 1, 13th Ed., Sec. 108, in these words:

"There are other declarations which are admitted as original evidence, being distinguished from hearsay by their connection with the principal fact under investigation. The affairs of men consist of a complication of circumstances so intimately interwoven as to be hardly separable from each other. Each owes its birth to some preceding circumstances, and, in its turn, becomes the prolific parent of others; and each, during its existence, has its inseparable attributes, and its kindred facts, materially affecting its character, and essential to be known in order to a right understanding of its nature. These surrounding circumstances, constituting parts of the res gestae, may always be shown to the jury, along with the principal fact; and their admissibility is determined by the judge, according to the degree of their relation to that fact, and in the exercise of his sound discretion; it being extremely difficult, if not impossible, tobring this class of cases within the limits of a more particulardescription."

In Section 110, the author adds:

"It is to be observed, that, where declarations offered in evidence are merely narrative of a past occurrence, they cannot be received as proof of the existence of such occurrence. They must be concomitant with the principal act, and so connected with it as to be regarded as the mere result and consequence of the coexisting motives, in order to form a proper criterion for directing the judgment which is to be formed upon the whole conduct."

Mr. Wharton, in his work on Crim. Ev., Vol. 1, Sec. 262, defines it thus:

"Res gestae are events speaking for themselves, through the instinctive words and acts of participants, but are not the words and acts of participants when narrating the events. What is said or done by participants under the immediate spur of a transaction becomes thus part of the transaction because it is then the transaction that thus speaks. In such cases it is not necessary to examine as witnesses the persons who, as participators in the transaction, thus instinctively spoke or acted. What they did or said is res gestae; it is a part of the transaction itself.

As long as the transaction continues, so long do acts and deeds emanating from it become part of it, so that in describing it in a court of justice they can be detailed.

The distinguishing question is. Is the evidence offered that of the event speaking through the participants? If so, what is thus said can be introduced without calling those who said it. Is the evidence offered that of observers speaking about the event? If so, such observers must be called to testify.

Nor are there any limits of time within which the res gestae can be arbitrarily confined. They vary in fact with each particular case.

Declarations claimed to be a part of the res gestae may precede, accompany, or follow the transaction to which they relate. But it is only when they precede, accompany, or follow the transaction so as to be wrought up in it and emanate from it, that they can be rightfully regarded as excepted from the rule which excludes hearsay.

It is the universal rule that narratives of the transaction after it has occurred are inadmissible as res gestae, and not admissible at all unless as admissions by the party charged; on the same principle declarations prior to the transaction are excluded."

Examples of the construction placed upon the rule are too numerous to mention. It may be stated, however, that the tendency of the courts is to liberalize rather than to restrict the rule, and this is particularly true of the Court of Criminal Appeals. Touching the practice in this court, it is said in Wharton's Crim. Ev., Vol. 1, p. 491, note:

"The Court of Criminal Appeals of Texas has so far departed from the definition in its admission of all facts, circumstances, statements, occurrences, before, accompanying, and after, that, as illustrating the rule, the cases would be of no value as to the limits set for res gestae. * * * and its practice as to resgestae is readily explained from the fact that the Texas Court of Criminal Appeals always considers the entire record, weighing, analyzing, and thoroughly digesting all the evidence before applying the law to the case in hand, and hence admissions as resgestae in the Texas courts are not so harmful an application of the rules of evidence as in courts less painstaking with examination of records, and who dwell more upon the strict rules of law."

One of the earliest pieces of legislation in this State was the enactment of a statute, which is still in force, in these words:

The common law of England as now practiced and understood shall, in its application to evidence, be followed and practiced by the courts of this State, so far as the same may not be inconsistent with this title or any other law." (R.S. Art. 3687.)

See also Art. 5492, R.S., adopting the common law of England.

The res gestae rule, therefore, so far as pertains to its status in Texas, is statutory, and it is not within the discretion of the courts to either repeal or modify it. It is their duty to construe and apply it. The above quotations from textwriters illustrate, and an examination of the reports would emphasize that in its application, the rule of res gestae is most difficult. The rule is not so rigid or well defined as could demand absolute accuracy in its construction either by the trial or the reviewing courts. Many instances arise upon particular facts in which it is impossible to demonstrate whether the proffered evidence is or is not within the scope of the rule of res gestae. Taking note of these conditions, that there is some variety of opinion reflected by the decisions is not a subject of wonder and cannot be justly regard as changing the rule. It cannot be denied that the decisions cannot all be harmonized either with the rule or with each other. Notwithstanding this, the rule, as above stated, is statutory, and so far as its application may be ascertained upon the examination of each particular record, it is incumbent upon the courts to follow it. On appeal, however, its lack of rigidity and the difficulty of ascertaining its limits render it proper that the decision of the trial court touching its application should be given great weight.

Opinions are not acceptable under the rule, and at times the distinction between an opinion and a shorthand rendition of the facts is almost indistinguishable. Some illustrations are found in the original opinion in this case and in McDougal's case,81 Tex. Crim. 179.

The declaration of the deceased Ross: "I guess I am to blame; they don't want me here," made under the conditions portrayed in the original opinion, as shown by the record, was, in the judgment of the writer, not an opinion but a statement of fact admissible under the rule of res gestae.

The exclamation of the deceased while on the way to the hospital: "oughtn't shoot a man in the back", seems to have been properly received under the res gestae rule. His declaration made at the sanitarium: "They had no right to shoot me", would seem, in view of the antecedent events and conditions prevailing at the time, not part of the res gestae.

In discussing the declarations in question, we have had in mind another trial of the appellant, and do not intend to indicate that this court feels so secure in its opinion that some of the declarations should have been rejected, as would necessarily call for a reversal.

Upon the grounds stated in the original opinion, a new trial is made necessary.

Much of this opinion is responsive to the appellant's motion for a modification of the original opinion.

The State's motion for rehearing is overruled.

Overruled.