Trotter v. State , 37 Tex. Crim. 468 ( 1896 )

Appellant was convicted of murder in the second degree, and given fifteen years in the penitentiary, and prosecutes this appeal. Appellant excepted to the action of the court in overruling his challenge for cause as to the juror, D.C. Cox. As to said juror the bill shows as follows: "The court propounded to the juror the statutory questions, to-wit: 'From hearsay or otherwise, is there established in your mind such a conclusion as to the guilt or innocence of the defendant as would influence you in finding a verdict?' The juror replied, 'I have formed an opinion.' The court then asked the juror 'if it was such an opinion as would influence his action in finding a verdict.' The juror said, 'I do not think it would.' The court then told the juror he would have to say positively whether it would or not. The juror then said it would not. Counsel for the defendant then asked the juror if he still had that opinion. He replied that he still had it; and in answer to further questions by counsel for the defendant the juror said: 'I cannot go into the jury box free from that opinion, and I will have to hear evidence before I can change that opinion.' The court then asked the juror if his opinion was formed from hearing the witnesses talk about the case or from rumor and hearsay. The juror said it was from rumor and hearsay, and that, notwithstanding the opinion, he could go into the jury box and render an impartial verdict according to the law and the evidence. Thereupon the court, over the objection of the defendant, held the juror competent, and the defendant was compelled to exhaust a peremptory challenge upon said juror, and the defendant afterwards exhausted all of his peremptory challenges before the jury was formed." This action of the court is assigned as error. Under the former decisions of this court we hold that the juror was competent. See, Suit v. State, 30 Tex.Crim. App., 322. The second bill of exceptions relates to the sustaining of a challenge to a juror, made by the District Attorney. The juror, in response to an examination by the court, fully qualified as a juror, and stated that he had formed no opinion as to the guilt or innocence of the defendant that would influence him in finding a verdict. The District Attorney then asked said juror if he had formed any opinion as to the guilt or innocence of the defendant, to which the juror replied: "I have." The District Attorney then asked the juror if he had formed that opinion from talking to the witnesses in the case. The juror replied that he had. The court then asked the juror, "Do you say that you formed that opinion from conversing with the witnesses in the case?" The juror replied, "I do." Thereupon the court sustained the challenge of the State for cause, and said juror was discharged, to which the defendant excepted. The statute seems to make a difference between all opinion formed by a juror from hearsay merely and where the juror has formed his opinion from having heard the testimony, or from having conversed with the witnesses in the case. This distinction has been recognized by this court. See, Shannon v. State, 34 Tex.Crim. Rep.. No injury is shown to appellant in the action of the court, and there was no error in sustaining the challenge for cause. Counsel for appellant excepted to the remarks of the District Attorney when the witnesses were placed under the rule. Said remarks were as follows: "I demand the strict rule, because I believe there are witnesses here who would not regard the rule unless strictly enforced." This remark did not single out the defendant's witnesses, but was applied to all of the witnesses. It was not a proper remark to suggest that all or any of the witnesses would not comply with the rule unless it was strictly enforced. When the District Attorney had asked for the rule, and requested the court to instruct the witnesses in regard thereto, he had performed his duty; and when the District Attorney had done this he should stop. However, we cannot see how the remark may have affected the rights of the appellant injuriously, and the bill does not show that it had this effect. On the trial of the case the State proved by the witness, Robert Allsup, that after the difficulty the defendant left the scene of the difficulty; that he (Allsup) left the body of his brother in the road where he had been killed, and started off to get some one to come and stay with his brothers' body; that John Creswell, who was with the defendant at the time of the homicide, and who had come there with him, had ridden off several hundred yards, and that the said Creswell remained there on his horse, as long as witness was in sight, and he stated that Creswell was "watching him." This latter expression, on objection by appellant, was excluded. Appellant, however, contends that it was improper testimony, and was calculated to affect the defendant injuriously, and its effect could not be thus withdrawn from the jury. The court, in his explanation of the exclusion of said testimony, says that this was a mere opinion of the witness. In our opinion, the evidence was not objectionable on this ground. A witness can testify as to whether lie was being watched or not, and his evidence is not an opinion, but a fact. However, appellant contends that, if it was admissible at all, it was only admissible on the ground that Creswell and Trotter were co-conspirators, and, the conspiracy having ended with the death of Joe Allsup, the testimony was not admissible against his codefendant, Albert Trotter. If it be conceded that the conspiracy had ended, still this testimony appears to us to be admissible as a part of the res gestæ. It was very shortly after the homicide had been committed by Trotter, who had fled from the place, but Creswell had not left, but remained in proximity to the scene of the homicide. Again, this testimony was withdrawn as soon as the court's attention was called to it, and the jury instructed to disregard it. The testimony must be shown in such case to be more than merely improper evidence; it must be prejudicial. As was said in Miller v. State, 31 Tex.Crim. Rep., "It is not intended to hold that cases may not arise in which the withdrawal of testimony would not cure the error committed in admitting the same, for it may occur that such evidence was of such a prejudicial character as to so influence the jury against the defendant that he would be deprived of a fair and impartial trial." The evidence admitted and excluded in this case does not appear to us to be of such character.

The contention of the appellant that the State should have put Creswell on the stand because he was an eye-witness to the transaction is not the law. See, Gibson v State, 23 Tex.Crim. App., 414; Kidwell v., State, 35 Tex.Crim. Rep.; Reyons v. State, 33 Tex.Crim. Rep.. Appellant contends that error was committed by the District Attorney in his closing argument by traveling out of the record and in indulging in certain remarks. It is sufficient to observe in this connection that the remarks complained of do not seem to be hurtful, and no request was made by the appellant to have the court instruct the jury to disregard the same, which, under the decisions of this court, should have been done before the appellant can avail himself of this matter. Appellant excepted to paragraph No. 22 of the court's charge, which is a charge presenting the theory of the defendant having provoked the difficulty. His contention is that such charge is not applied to the facts of the case. We have examined this aherge, and in our opinion it, in connection with the other charges on self-defense, presents all of the law bearing on the subject, as shown by the facts. The law of self-defense, we think, is fully presented in the charge in every phase that the evidence required." And in that portion of the charge predicated on a demonstration by Joe Allsup with a gun the charge directly applies the law to the evidence in the case; and the charge also instructs the jury that the defendant could rely on a demonstration by either Joe Allsup or his brother, Robert. We fail to see any cause of complaint as to the court's charge on self-defense. Appellant also complains of the court's charge on threats. Said charge is as follows: "Evidence of threats (if any) made by the deceased and his brother, Bob Allsup, or either of them, and not communicated to the defendant, are not to be considered by you in justificaconsidered as a circumstance tending to explain the acts of the deceased and said Bob Allsup at the time of the killing, and as a further circumstance tending to show whether or not they may have commenced the difficulty at the time of the killing." In the first portion of said charge, if there was nothing further said, the charge would certainly be erroneous, but in the latter portion thereof, the very object and purpose of the admission of uncommunicated threats is stated; and this charge, in connection with the charge on self-defense given in the case, which the jury were authorized to look to, could not have misled or confused them. They were instructed to look to uncommunicated threats in order to ascertain who may have made the first hostile act or demonstration, and they were instructed, if the deceased or his brother made the first hostile act or demonstration, that the defendant was justified. Appellant insists that the court erred in not stating to the jury the purpose for which the impeaching testimony was introduced. There was no affirmative testimony of an impeaching character introduced against the defendant that required of the court a charge limiting the same to its legitimate purpose. The effect of the court's charge on this subject was simply to instruct the jury that, notwithstanding testimony had been introduced tending to impeach the witnesses in the case, the credibility of said witnesses was a question for the jury. In this there was no error. The evidence in this case, in our opinion, amply supports the verdict, and the judgment is affirmed.

Affirmed.