Taylor v. State , 38 Tex. Crim. 552 ( 1898 )

Appellant was convicted of murder in the second degree, and his punishment assessed at ten years confinement in the State penitentiary, and prosecutes this appeal.

Appellant contends that the court committed an error in admitting the dying declarations of the deceased, W.H. Flowers. The first objection urged is that said dying declarations as contained in the written statement were not admissible, because a sufficient predicate had not been laid for their introduction. In this we disagree with counsel for appellant. We think the testimony shows conclusively that deceased was then conscious of approaching death, and had no hope of recovery. And we further disagree with counsel that the same was induced by leading queslions calculated to elicit the desired answers. It is true that deceased was at the time partially under the influence of opiates, and had to be aroused from time to time in order to continue his statement. But it does not appear that any statement made was elicited by a question calculated to induce the answer given; and although, during some of the time, he was unconscious, and had to be aroused to continue his statement, yet the same appears to be an intelligent, continuous, and logical statement of how the killing occurred. Appellant further contends that said statement is not admissible as evidence, because it was violative of the constitutional guaranty requiring appellant to be confronted with the witnesses against him, and he refers us to the majority opinion of the court in Cline's Case, 36 Texas Criminal. Reports, 320, and, in connection therewith, to the dissenting opinion of Henderson, Judge, in that case. This question has long been settled in this State against the contention of appellant. See Burrell v. State, 18 Tex. 718, and authorities there cited. And see also Campbell v. State, 11 Georgia, 353. In a case of dying declaration the witness does confront the appellant at the trial. It is true, the witness states the declaration of the decedent as to the cause and manner of his death. This declaration is itself, under the authorities, made original testimony; and it is considered as original evidence, and not hearsay, when given by any witness who may have heard such declaration when made under the circumstances required by law — that is, that the declarant must be conscious at the time of approaching death, and believe that there was no hope of recovery, and that such declaration was voluntarily made, and not through the persuasion of any person, and that the same was not made in answer to interrogatories calculated to lead the deceased to make any particular statement, and that such declarant was at the time of sound mind.

Appellant assigns as error the action of the court in refusing to permit him to impeach Mrs. Bessie Flowers by the testimony of H.D. Gunnells. Said assignment is based upon the following bill of exceptions: "Be it remembered, that upon the trial of this cause Mrs. Besie Flowers, wife of the deceased, W.H. Flowers, a State witness, who testified for the State upon the trial of this cause: That her husband, W.H. Flowers, was cut and stabbed with a knife, as alleged in the indictment in this cause; and that she was present when he was cut and stabbed, and that her husband (the deceased) never drew his knife, and did not have any knife open or in his hands during the difficulty in which he was killed, until after the difficulty was over, and he had been taken into the main courtroom, at Sweetwater, Texas, and then she saw him take it out of his pocket, and open it; and that deceased's brother, Granville Flowers, had no knife seen by her, and that she did not see Granville Flowers during the difficulty; and that her husband was not fighting, and she did not see the defendant, E.P. Taylor, during the difficulty. The following questions were propounded to her by the defendant's counsel, to wit: 'Didn't you tell H.D. Gunnells, the assistant city marshal of Fort Worth, Texas, about the last of February or first of March, 1897, in the courthouse at Fort Worth, Texas, just north across the hall from the district clerk's office in said courthouse, that Vat Taylor (E.P. Taylor, the defendant) had this fight in self-defense, and ought to be acquitted, and that you had sworn lies enough for the Flowers against Vat Taylor, or sworn lies enough against Vat Taylor; and that they, Granville Flowers and deceased, Will Flowers, both jumped on defendant, and what he did was in self-defense; and that you knew enough to acquit him, and was going to swear it on the next trial, and what he did he had it to do?' That said witness Mrs. Bessie Flowers, the wife of deceased, dnied talking to said H.D. Gunnells about the defendant's case at all, and absolutely denied that she made any such statements to said witness H.D. Gunnells, but stated she did have a talk with him about that time and place mentioned. Whereupon the defendant put said witness H.D. Gunnells upon the wtiness stand, a and asked him the same questions propounded to said witness Mrs. Bessie Flowers. Said witness answered she made a part of such statements. The jury was withdrawn from the courtroom, and the witness Gunnells made the following statement to the court, to wit: 'On or about the latter part of February, 1897, or some time in March of the same year, Mrs. Besie Flowers sent for me to meet her at the district clerk's office in the courthouse in Tarrant County, Texas. I met her there at said office, went across the hall, north of the district clerk's office, and she told me as follows: First, she asked me if I had heard of old man Flowers talking about her. I told her I had not. She said she had been told that he had been talking about her, and that she wanted me to try to find out, if possible, all that lie had said. Said she was tired of being bulldozed, and she was not going back to the trial unless they sent her a ticket; and that, if she did go back, she was going to turn Vat Taylor loose; that he should be turned loose; that he only done what he had to do; that Will Flowers and Granville Flowers were both on him when he cut Will Flowers, and that her testimony on next trial would turn him loose.' After the above testimony of the said witness H.D. Gunnells was related to the court in the absence of the jury, the State's counsel objected to said testimony going or being introduced before the jury, because it was conclusions of the witness Mrs. Bessie Flowers, and not material, and was collateral issues, and did not contradict any statement of Mrs. Bessie Flowers. The court sustained said objections, and refused to allow the said testimony to go before the jury, to which ruling of the court defendant then and there excepted. And then defendant offered to put, said interrogatories to said witness Gunnells separately, and asks the court to allow him to do that, as some of said answers of said witness were admissible. The court refused to allow defendant to do that, and then defendant offered to put the said witness Mrs. Bessie Flowers on the witness stand, and ask her the exact questions testified to by said H.D. Gunnells, and the court refused to allow defendant to do that; said it was not material, and did not contradict any testimony of witness Mrs. Bessie Flowers, and he would rule it all out; and said witness had already been on the stand twice — once by the State and once by the defendant — and the court would not allow her to be recalled. Whereupon the defendant excepted to the ruling of the court, and tenders this, his bill, and asks it to be allowed and ordered filed," etc. Now, if it was competent for appellant to impeach Mrs. Flowers, and the proper predicate had not been previously laid, then we think the court should have permitted the reintroduction of Mrs. Flowers, in order to lay the proper predicate after it was ascertained exactly what H.D. Gunnells would testify as to her statements to him. But, if it was not competent to impeach Mrs. Flowers upon the points stated by H.D. Gunnells, then no error was committed by the court in refusing to permit Mrs. Flowers to be introduced for the purpose of laying a proper predicate. So this brings us to the question as to whether Mrs. Flowers could be impeached.

The bill in question is adroitly drawn, and the reading of the first part of the bill would indicate that Mrs. Flowers had testified that she was present when her husband, was cut and stabbed, and that her husband never drew his knife, and did not have any knife open or in his hand during the difficulty in which he was killed, until after the difficulty was over; and that he only drew it, after he was removed from the room in which the difficulty occurred; and also that Granville Flowers also had no knife during the difficulty; and that her husband was not fighting, and that she did not see the defendant, E.P. Taylor, during the difficulty. This is stated in such a way at the outset of the bill as to make it appear, as stated above, that she was present during the difficulty, and witnessed it. While it is true that the mere statement by her to Gunnells, that she was tired of being bulldozed; that if she went back to the trial they would have to send her a ticket, and that she was going back to turn Vat Taylor (the defendant) loose, and that he should be turned loose, and that he only did what he had to do — not being the relation of any fact in contravention of her assumed testimony, but being merely the expression of an opinion by her, would not be competent. Yet the statements by her to Gunnells that Will Flowers and Granville Flowers were both on him (meaning defendant) when he cut Will Flowers, would be the statement of a fact, and would certainly be competent evidence to impeach her, if the bill shows that she was present at the difficulty, and stated that she witnessed it, and that Will Flowers and Granville Flowers were not on defendant when he cut W.H. Flowers; or if she stated that she was present at the difficulty, and gave an account of how it happened, and that such account was inculpatory of defendant, and antagonistic or in contravention of the idea that W.H. Flowers and Granville Flowers were on top of defendant when he cut deceased, then the impeaching testimony would be admissible. The court, however, certifies as one of the reasons for his refusal to permit the impeaching testimony that it was not in contradiction of any testimony given in by Mrs. Flowers — that is, the bill is self-contradictory — and the court's explanation is not reconcilable with the statement in the beginning of the bill as to what Mrs. Flowers had testified to on the trial, and what it was proposed to be proved by Gunnells she had stated to him in the courthouse at Fort Worth. If we consider that the judge's explanation or modification of the bill has a controlling influence, then this would dispose of the bill. If we recur to the statement of facts, we find that his explanation is eminently correct; that is, Mrs. Flowers did not testify that she was present during the difficulty and witnessed it, nor did she state how it occurred. On the contrary, her testimony showed that she was not present. She did not see or know how the cutting occurred, nor did she pretend to state the particulars of the transaction. According to her testimony, she only entered the room after her husband had been cut and was being taken into an adjoining room, and she did not see the defendant at all. True, she narrates that, after her husband was taken into the other room, he handed his open knife to her; but two other witnesses testify as to appellant getting his knife out of his pocket, and opening it, and handing it to his wife, after he was taken into the other room, and laid upon the table. This is not gainsaid by any evidence. Mr. Wharton lays down the rule as follows: "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 the trial, provided such statement be material to the issue; though a witness, after testifying to criminating facts, can not be asked whether he has not previously said that in his opinion the defendant was not guilty. The statement which it is intended to contradict must involve facts in evidence. If confined to opinion, when opinion is not at issue, or to other irrelevant matters, the cross-examining party is bound by the answer. * * * A witness may also be contradicted by proof of prior contradictory statements before the grand jury, or by proof that he now states facts which, on a former trial, he omitted to state; and generally, whenever on it former occasion it was the duty of the witness to state the whole truth, it is admissible to show that a witness in his statement admitted facts sworn to by him at the trial." See Whart. Crim. Ev., sec. 482. This rule has been followed by our court in a number of decisions. It apprehends that the witness has testified to some material fact about which it is proposed to contradict him; and it presupposes that, if the witness has not testified to the fact, there is no basis for the contradictory evidence. Applying this rule to the testimony of Mrs. Flowers, we find that she did not state a single fact with reference to the fight which resulted in the death of her husband, that, she was not present at the time it occurred, and knew nothing as to how it did occur. So there was nothing upon which to contradict her, and the statement proposed to be proved by Gunnells that she theretofore told him at Fort Worth that 'when defendant cut her husband, that her husband and Granville Flowers were on top of him, nothing in contradiction of any testimony given by her on the trial, was not legitimate evidence in impeachment of her; and the court did not err in excluding it.

Appellant contends that the charge given by the court with reference to dying declarations of the deceased, W.H. Flowers, was improper, as being a charge upon the weight of the evidence and giving undue prominence to said witnesses' testimony. We have examined, said charge, and, in our opinion, it was merely an instruction to the jury with reference to a rule of law under which they were to determine whether or not they should consider said dying declarations at all. Inasmuch as some controversy was made by appellant as to whether said declarations were freely and voluntarily made, and that the deceased was of sane mind at the time, and conscious of approaching death, the court instructed them that, if said declarations were not made under the safeguards required by law, not to consider same. The charge in question was as follows: "You will not consider the dying declarations of the deceased, W.H. Flowers, unless you believe from the evidence that at the time the said declarations were made that the deceased was of sane mind, conscious of approaching death, and that said statement was made voluntarily, and not in response to interrogatories calculated to lead deceased to make any particular statement. But in this connection I charge you that it would be no legal objection to said declaration that questions were asked him directing his mind to the subject, or part of the subject, upon which said declaration was made. Nor do such questions take from such declaration its voluntary character." We understand the last portion of said charge as particularly objected to. In our opinion, it embodies a correct rule on the subject, and was applicable to the testimony.

Appellant also objected to the following charge: "You are instructed that, if the defendant provoked the contest with the deceased, W.H. Flowers, with the apparent intention of killing him or doing him serious bodily harm or injury, he would be guilty of murder, although he might have done the act of killing suddenly, without deliberation," and in order to save his own life. The law allows no justification in such cases, and no reduction of the grade of homicide below murder. But, if the defendant provoked the contest without any intention to kill deceased, or to inflict serious bodily harm or injury upon him, and suddenly, without deliberation, stabbed, cut, and killed him, he would be guilty of manslaughter." The contention of appellant is that there was no testimony authorizing this charge. We would remark in this connection that a full and clear charge on self-defense was given, which, in our opinion, adequately guarded the rights of the defendant; and said charge was not trammeled by the charge on provocation being connected therewith. It does not appear from the testimony that any witness except the deceased made any statement as to the circumstances immediately attending the stabbing with the knife. If the lying declarations be true, appellant not only sought and provoked the difficulty, but himself attacked deceased. This declaration first tells about an altercation that had occurred between him and deceased in the room where they were dancing. Some considerable lapse of time after this — an hour or more — deceased walked from the supper-room into the corridor. "There," he says, "I stepped in the door of the courtroom, and saw Vat Taylor in the corridor in the corner next to the ladder. I had my back to him, and he said, 'I think you acted' [and used a very opprobrious epithet towards him], and then stabbed me in the belly with his knife. He made all the wounds in my abdomen before I clinched with him. I think he cut me on the shirt sleeve after we clinched. I never had my knife out at all in the corridor, or while we were scuffling. I got it out after we separated, and came into the court room." Now, this testimony not only justified the court in giving a charge on provoking the difficulty, but would deprive the defendant of self-defense altogether. Nor, in our opinion, does the testimony of any of the other witnesses in the case militate against this evidence. True, two of the witnesses, who were in the courtroom, stated they were sitting on a railing in front of the judge's stand, and looking through the door into the corridor. "Saw deceased come from towards the grand jury room, and lean up against the door-facing. Defendant was at that time leaning against the door-facing on the north side of the door. They stood there and talked, facing each other, for a minute or two; and then defendant started to walk off towards the head of the stairway. Saw deceased's arm go out in front of him, and in the direction of the defendant." One of these witnesses merely says, "Deceased's arm went out in the direction of defendant," and the other says, "I think he struck at defendant; they seemed to clinch then, and I saw no more, as the crowd rushed up." Taking the testimony of these witnesses, in connection with the testimony of the deceased, showing what this conversation was, and the opprobrious epithets applied to him (deceased) by defendant, if, according to these witnesses, defendant, in response to this insulting language, struck at or struck defendant according to said witnesses, then the court's charge on provoking the difficulty was certainly rendered pertinent. Moreover, in our view, there was no danger of the jury applying the charge of the court to the altercation that occurred in the dance room some hours previous.

Appellant, in this connection, claims that the court having given a charge on provocation, should have given an alternative charge. The charge given by the court on self-defense we think fairly embodied all of appellant's rights under the testimony in the case. Said charge fully authorized the jury to acquit the defendant if he was first attacked by either the deceased or his brother, Granville Flowers, in such manner as to cause him to apprehend danger to his life, or serious bodily injury. To our minds, indeed, there is very little testimony in the case calling for a charge on self-defense at all. Although Duke Taylor, the brother of the defendant, was a witness on his behalf he does not state the beginning of this difficulty in such form as to make clear to our minds the appellant's right of self-defense. He says: "When the fight was up, I was walking from the railing over towards the door of the courtroom, and had stopped some eight or ten feet from the door, right opposite to it. The first thing that drew my attention was the motion of the deceased's arm. He struck out in front of him. I did not see his hand, and did not know whether he had anything in it or not. I saw my brother there at the time, and I rushed to the door," etc. Now, he does not state the origin of this difficulty in the corridor, and, according to deceased's version, which is not contradicted by any witness, defendant was the aggressor; brought it on; and if it be conceded that defendant struck him after he had denounced him, he evidently did so for the purpose of bringing on the difficulty, and then cutting him with his knife, for all of the testimony shows that he immediately began to cut him. The testimony further shows that after the altercation in the dance room he must have premeditated this assault, and laid in wait for the deceased some time in the corridor, before he found occasion to attack him, because the brother of the defendant says that he saw his brother out in the hall several minutes before the fight occurred; and other witnesses show that he must have been there, and, as soon as deceased appeared, he denounced him in a violent manner; and whether he or deceased struck the first blow, to our minds, is absolutely immaterial.

There was no error in the court's additional charge to the jury that, if the deceased made any other attack on the defendant than one with intent to kill him or inflict serious bodily injury, before he was authorized to slay deceased he must have resorted to all the other means besides retreating. If he made any attack on him at all, it was an attack less than one to murder or inflict upon him serious bodily injury. Nor did the court commit any error in refusing to give appellant's requested instruction embodying self-defense, predicated on the idea that there was a conspiracy between deceased and others to make an attack on defendant. The testimony utterly fails to show any such conspiracy.

Appellant insists that he should have had a new trial on account of the separation of the jury while they were considering their verdict and that the case should be reversed on account of the refusal of the court to grant such new trial. We have examined the record carefully in this respect, and, while it appears that members of the jury on two occasions were absent from the main body, it appears that during such separation one of the jurors merely went into the hotel with an officer to register off his name, which was only a short distance from where the main body of the jury was, and that he was only absent from them a very short time; that in the meantime the judge, and perhaps another officer, were with the jury. Another one of the jurors left the main body at one time to go to a buggy, in which were his sister and two other young ladies, in order to send a message to his wife. He was then in view of the officer all of the time, and it does not appear that there was any such separation as in any-wise would prejudice the rights of the appellant. No error appearing in the record, the judgment is affirmed.

Affirmed.

[NOTE. — Appellant's motion and amended motion for rehearing was overruled without a written opinion. — Reporter.]