Stovall v. State , 95 Tex. Crim. 189 ( 1923 )

It is insisted that Mrs. Knoerr's testimony as to the bad reputation of appellant's wife for virtue and chastity was inadmissible, and that we erred in sustaining the court's action in letting same in before the jury; and also in accepting the qualification of the learned trial judge to his bill of exceptions presenting this complaint. Said qualification states that the testimony complained of was brought out by appellant on cross-examination. Review of said bill discloses that while all the testimony set out therein was brought out on cross-examination, it is set out for the purpose of supporting appellant's contention that the testimony of the witness was based entirely on what had been told her of the conduct of the wife of appellant prior to her marriage with him. We get little light from the bill which sets out a part only of the cross-examination of the witness. We deem it permissible to pass on the contention in the light of the entire testimony of said witness as presented in the statement of facts. On direct examination she said that she knew the general reputation of appellant's wife in the community in which she lived, for virtue and chastity, and that it was very bad. On cross-examination she testified that she heard it discussed when the Stovalls (appellant and his wife) moved into the house next door to that of witness; that she did not know whether her information came from people who knew Mrs. Stovall prior to her marriage to appellant or not; that her informants were basing what they told her about such reputation on facts before her marriage and since her marriage also; that she did not hear any one's name connected with that of Mrs. Stovall but just her general reputation over town. Further, the witness said she first heard of it through friends at Edgewood, this conduct relating to appellant and his wife before their marriage; that they went fishing and stayed two or three days before they were married; that this was what she based her reply as to her reputation on. We would not be inclined to take the restricted view of the last clause, which is advanced by appellant, but think the witness intended to say that all of her testimony previously given was that upon which she based her testimony that the reputation of Mrs. Stovall was bad. In such case it could not be soundly insisted that the testimony of bad reputation was based solely on what had occurred prior to her marriage. Nor are we convinced of the correctness of the proposition that where the appellant lived in the same town with his then wife prior to his marriage to her, and it is further shown that the marriage was only nine months prior to the homicide, that it would be incompetent to prove such bad reputation prior to the marriage. If appellant was a resident of the community in which his wife resided before their marriage, and the general reputation of the woman for virtue and chastity was shown to be then bad, we do not see how he could escape knowledge of such reputation.

The witness Mrs. Henderson testified for the State that the reputation of Mrs. Stovall for truth and veracity was bad. This appears from the statement of facts. Appellant's bill of exceptions No. 9 shows that said witness testified that the reputation of Mrs. Stovall for virtue and chastity was bad, and his complaint is directed at the admission of this testimony, and the further fact that such reputation was acquired before her marriage to appellant. A certificate of the trial judge to this bill states that all the testimony so objected to was brought out by appellant on cross-examination. There being nothing in the record to call this statement of the court in question, it must be accepted by us as true and the bill considered with this qualification appended.

Upon more mature consideration of the charge of the court applying the law of manslaughter to the facts of the case we fear that the learned trial judge erred and that we should not have upheld his charge as correct. Said charge is as follows:

"Now if you believe from the evidence that the defendant was informed that the deceased, H.A. Dossett, had entered his home, made an assault upon his wife and caused her to submit to his passion, and had made insulting remarks to her, and you further believe from the evidence that such would commonly produce a degree of anger, rage, resentment or terror in a person of ordinary temper, sufficient to render the mind of the defendant incapable of cool reflection, also that such state of mind did actually exist, at the time of the commission of the offense, then you are charged that such acts and conduct and remarks would be deemed in law adequate cause."

Appellant's exception was that this required the jury to find that appellant was informed that deceased had entered his home, assaulted his wife and forced her to submit to his passion before they could believe that adequate cause had been shown. This proposition rests upon the fact that the statutes of this State permit that proof of insulting words may form the basis for adequate cause. Attention is called to the fact that while Mrs. Stovall testified for her husband to insulting words and conduct of deceased which she communicated to appellant, she further denied any act of intercourse on his part and denied telling appellant of such act of intercourse. Miss Davis also testified that Mrs. Stovall in talking to her about her trouble with deceased never claimed that deceased had had carnal knowledge of her but did tell her of his improper advances and that he had taken her in his arms and told her he had learned to love her when he used to visit her home with her boy. Appellant was the only witness who testified that his wife told him that deceased had assaulted her and obtained carnal knowledge of her. The exception of appellant seems well taken that it was erroneous to require that the jury believe that the assault, the carnal knowledge, and the use of insulting words or other conduct, all had been communicated before they could find adequate cause for sudden passion. In other-words, — had the charge not coupled those things claimed as adequate cause conjunctively, — the jury might have been willing to believe the existence of adequate cause arising from insulting words and thus be led to conclude that the killing was but manslaughter, even though they did not accept the truth of appellant's story that his wife told him of an assault and rape by deceased. The case of Barbee v. State, 58 Tex.Crim. Rep., is to some extent in point, while it presents two conflicting paragraphs of the charge, one presenting insulting conduct as adequate cause and the other adequate cause based on a different proposition.

We also call attention, in view of reversal, to that part of said charge which told the jury that "If you believe that such would commonly produce a degree of rage, anger, resentment or terror in a person of ordinary temper, sufficient to render the mind of the defendant incapable of cool reflection," etc. This was wrong. Insulting words or conduct is a statutory adequate cause, and if relied on, the question is not whether same would produce such passion in a person or ordinary temper, etc., but whether such words and conduct occurred, and whether same did in fact produce such passion.

Inasmuch as the case must be reversed for the error in the charge, in view of another trial we note the matters complained of in appellant's bills of exception Nos. 4, 5 and 6. While bill of exceptions No. 6 purports to present objections to the testimony of Lon Fry, we find no such testimony in the statement of facts after diligent search. If same, as it appears in the bill of exceptions, was in evidence, it was hurtful and if offered should not be admitted upon another trial.

Appellant had been married but from September 1921 to June following when he killed deceased, as he claimed through passion caused by insulting conduct toward his wife on the part of deceased. In such case Article 1134 of our Penal Code makes competent, proof of the general character of the female relative for virtue and chastity, and in our opinion proof of specific acts of misconduct with appellant, under the facts in this case, prior to her marriage to him and while she was the wife of another man, would be admissible. The purpose of proof of general bad reputation for chastity in such case is to bring home to the accused knowledge of his female relative's unchastity, it being logical to conclude that what is known to everybody, must be known to him. Certainly when he is shown to be particeps criminis with her in acts of lewdness, occurring recently before his marriage to her and while she is the wife of another, perforce brings home to him knowledge that she is not a virtuous woman. The Ballard case, 71 Tex.Crim. Rep., and the Bereal case, 88 Tex.Crim. Rep., 225 S.W. Rep., 252, involve different principles. In each of those cases the accused had lived with his wife for many years prior to the homicide and for that reason apparently, acts of infidelity prior to marriage were held inadmissible. In the instant case the State undertook to prove the reputation of appellant's wife within apparently two years of the homicide, and to supplement same by proof of specific acts of misconduct with appellant while she was the wife of a Mr. Fry. Under the authority of Bozeman v. State, 85 Tex.Crim. Rep., this would seem permissible.

Testimony that appellant was in Dallas at the time his wife got a divorce from her former husband, and that three days later she and appellant were married, would seem to shed no light on any issue in this case and should not have been admitted.

For the error above mentioned, the motion for rehearing is granted, the affirmance is set aside, and the judgment is now reversed and the cause remanded.

Reversed and remanded.