Baker v. State , 79 Tex. Crim. 510 ( 1916 )

Appellant has filed a motion for rehearing in this case, and an exhaustive brief on one or two questions. In the first instance he contends that Mrs. Laurie was but a mere bystander, and her acts and conduct not admissible. If it be conceded that she was but a mere bystander, there would be strength in the contention of appellant, and the authorities cited by him applicable. But if, as we conclude, she was not a mere bystander, having no part or parcel in the transaction, then the authorities cited by him and quoted from so copiously have no bearing on the case. Was she a bystander or a participant in the tragedy? When this is determined the question is easy of solution. She testified, at appellant's instance, that her husband (deceased) was drunk on the occasion he had assaulted her by kicking her on the legs, twisting the skin off of her arms, etc. That he then drew a pistol on her, and said if she did not stop fussing at him he would shoot her. That she told him she was going to leave, and began to pack her trunk, when some words were had about her drawing the money out of the bank; that they were fussing when her brother came in, and deceased cursed her and called her a crazy s_n of a b___h; that her brother remonstrated, when deceased drew a gun on him, and she drew a gun on deceased and told him if he did not lay the gun down she would kill him, and deceased, her husband, laid the gun down. Certainly she was not a bystander up to this time, but a very active participant in the transaction. She says when her husband laid the gun down she went to look for an officer, but failing to find one, she went to her father (appellant) and reported the circumstances to him and told him that deceased would shoot Ivy, her brother, and had been trying to shoot her. That when they all got back to where deceased was, there was cursing going on, and her brother told her father (appellant) that deceased had called her a "crazy s_n of a b___h," and deceased replied, "She is that," and grabbed a gun and said, "I will kill all three of you," meaning herself, her brother Ivy, and her father (appellant), and at this time her father struck the fatal blow.

Regardless of her cross-examination, and the other testimony in the case, we are at a loss to understand how, under this testimony, he can claim that she was but a mere bystander, or that the law applicable to acts and conduct of mere bystanders could or would have any application to her. In Century Dictionary "bystander" is thus defined: "One who stands near; a chance looker-on; hence one who has no concern with the business being transacted." See also Webster's Dictionary, and this definition has received judicial approval. Gay Oil Co. v. Atkins, 140 S.W. Rep., 739; State v. Jones, 14 S.W. Rep., 946. The reason we did not discuss the decisions cited by appellant is because they referred to persons who were on-lookers and were in no sense interested in or a party to the transaction, and when we held, as we do hold, that she was not a mere bystander, the rules of law applicable to bystanders was and is wholly inapplicable, and the rules of law as announced in Cox v. State, 8 Texas Crim. App., 254; Blain v. State, 33 Tex.Crim. Rep.; Baker v. State,45 Tex. Crim. 392; Smith v. State, 48 Tex.Crim. Rep.; White v. State, 60 Tex.Crim. Rep., become and are applicable, and rendered the testimony of the acts and conduct of Mrs. Laurie admissible. The court made no holding that a material witness for the defendant could not be a bystander, but the acts and conduct and active participation in the transaction by Mrs. Laurie were such as showed that she was not a mere chance looker, but a participant in the entire difficulty.

Appellant also insists that taking into consideration the testimony as to the way deceased treated his wife, Mrs. Laurie, the fact she did not go to his bedside until in the night ought to have but little weight, if any. This may be true. We are not passing on the weight to be given this testimony by the jury, but merely hold it admissible as showing the real condition of affairs, and to affect her credit as a witness, if it did so. The facts were all before the jury, and doubtless they gave it only such weight as it was entitled to receive at their hands under the evidence.

The case of Marsh v. State, 54 Tex.Crim. Rep., 112 S.W. Rep., 320, instead of holding that the statement of Mrs. Laurie made to Mr. Coleman inadmissible, is authority for its admissibility. Mrs. Laurie had testified that deceased said, "I will kill all three of you," and grabbed a gun, and those present were scuffling with him over the gun, when appellant struck deceased. This made a case of acting in self-defense. Now immediately after the shooting Mr. Coleman says Mrs. Laurie told him "the killing was uncalled for." In the Marsh case, supra, it was held: "We think the testimony complained of in bill No. 3 was admissible as a circumstance to rebut and throw discredit on the original statement made by appellant. It was a legitimate subject of cross-examination in that this fact, if true, was at variance with her statement of an insult by Baggett." The testimony held inadmissible, the court says: "It formed no part of the transaction, or conversation, or matter inquired of from Mrs. Marsh on her original examination. It wholly related to anothertransaction subsequent to the killing." In this case the testimony related wholly to this transaction, and was admissible to show she made a different statement immediately after the homicide to the one she testified to on the trial. We recently discussed this question in the case of McDugal v. State, and cited the authorities, and do not deem it necessary to do so again.

Appellant in his motion contends that the date of the death of deceased was not shown by the evidence, and that it was not shown that the killing occurred in Kerr County, Texas. H.W. Vowell and Clayt Love testified to his death occurring on the "8th day of last March." The case was tried in January, 1916, and this necessarily fixed the time as March 8, 1915, and appellant is mistaken in his contention that the record does not disclose that the tragedy occurred prior to the presentment of the indictment. If the evidence did not show venue in Kerr County, it would be too late to raise that question for the first time in this court by virtue of the provisions of article 938, C.C.P., no issue as to venue having been raised in the trial court. The entire record shows that the killing occurred in Kerrville, and the act creating Kerr County in 1856 provided that the place selected as the county seat should be called Kerrville, therefore we take judicial notice that Kerrville is in Kerr County.

We have discussed all questions appellant insists upon in his motion. The others were disposed of in the original opinion, and the motion for rehearing is overruled.

Overruled.