Taylor v. State , 87 Tex. Crim. 330 ( 1920 )

Appellant moves for a rehearing, complaining of the insufficiency of the evidence, and of the original opinion of the court in holding that the same fairly supported the verdict.

We decline to interfere with verdicts of juries when the evidence is conflicting, and only act in such matters when the record is so bare of supporting facts as to lead us to conclude that the result must have come through some passion or prejudice, or when the verdict is such as that a reasonable mind is unable to assent to the conclusion reached by the jury. In this case, not only is there a predicate of ill-feeling extending over a time preceding the homicide, but also a fresh provocation on the day thereof, followed by acts of the appellant, and considerable evidence pointing strongly toward an intention to do harm to the deceased, further supported by evidence which, in our opinion, might lead a dispassionate mind to the conclusion of his guilt.

In addition to the discussion of the testimony had in the original opinion, we call attention to the fact that it was shown that the time of sunset on the day of the homicide was 4:53 P.M.; that witness Everett Stevens says that just before sundown, on his way to Taylor's store, he passed near where the homicide took place, and heard some kind of an explosion; saw the riderless horse of deceased near the fence, on the right side, seemingly excited, and looking from side to side; and that he saw a man walking apparently away from the place where the killing occurred, having on a coat similar in color and appearance to that worn by appellant that afternoon. This witness went on to Taylor's store, where he got his brother and cousin in a few minutes.

Witness Cast saw deceased on horseback just a little before sundown, at a point less than a mile from the place where he was killed, going in that direction in a gallop.

Witness Arthur Gabriel testified that at about 3:30 or 4 o'clock that afternoon, he and Hugh Taylor, who was a cousin of appellant, went to a certain culvert under the road, where they found a number of bottles of whisky, of which they drank freely, and then, taking some of the liquor with them, they went down to Taylor's store, where it seems all parties took several drinks, and that about a half an hour later, witness, appellant, and Hugh Taylor, got on their horses and started back to the said culvert for more whisky; that on their way, they met deceased, who was on horseback. The witness and Hugh Taylor stopped, and appellant who was not on speaking terms with deceased rode fifteen or twenty steps further, and also stopped. Witness asked deceased to have a drink, and handed him a bottle of the whisky, which was branded "Taylor," or "Old Taylor," and deceased took the bottle, but did not drink. He looked at it; said is was good whisky, but had a sorry name, at which Hugh Taylor seemed to take offense, and said that was his name; whereupon, deceased repeated the statement, saying that it was good whisky, but had a sorry name. Hugh protested again at having the Taylor name run down, and deceased then said, "Don't take offense at what I say," or substantially that, and Hugh continued to protest against having his name run down; when deceased reached over and grabbed Hugh, and drew back to hit him, but Hugh pushed him back, and as deceased tried to get at him, Hugh ran off west on his horse. Deceased started after Hugh, but witness Gabriel caught his horse by the bridle, and told him not to pay any attention to what Hugh said, as he was drinking. Deceased told witness to turn the horse loose, and drew the bottle which he had in his hand back as though to strike witness, who then loosed his hold upon the bridle, and deceased went off down the road after Hugh. This witness further said that when he left the spot, appellant was sitting on his horse in the road.

Mrs. Hugh Taylor testified that she lived about a mile from Taylor's Store, and that she was at said store the afternoon of the homicide, and saw appellant bring a shotgun there and leave it with Dick Taylor. She further stated that she left the store about four o'clock, and got home before night; that shortly after she got home, appellant came to her house, and wanted a gun, stating as his reason for wanting it, that deceased had raised a row down there, and had Hugh cut off from home, and that he wanted the gun to help Hugh. Witness did not let him have the gun.

John Gabriel testified that he saw appellant, Hugh Taylor, and the witness's son Arthur, ride by his house on the afternoon of the homicide, going west. Later he saw appellant alone going east toward Taylor's store, in a lope, and that in about twenty or twenty-five minutes after appellant passed, deceased also passed on horseback, going in the same direction.

Two witnesses named Stevens testified that they were at Taylor's store on the afternoon of the homicide, and that appellant came there and got his shotgun and left. One of the boys said that appellant's brother Ivan, who was there at the time, called for some cartridges, and witness thought he called for buckshot cartridges. After appellant and Ivan left the store, this witness remained until Everett Stevens came to the store in his buggy, and they all left just about sundown; and they say that the time after appellant left, and until Everett Stevens came, would not exceed thirty minutes.

Another witness, named Morris, testified that on the afternoon of the killing, he stayed at Taylor's store until about sundown, and that a short time before sundown he saw appellant and his brother near the corner of said store, talking, and heard appellant say to his brother, "Don't shoot too low." Deceased was killed by buckshot, evidently fired from a shotgun, and was killed somewhere near sundown on Christmas Eve day, 1915. We mention these facts because they seem to place appellant so near, in point of time and place, to the scene of the killing, with a weapon such as actually inflicted the fatal wound, and with evil purpose in his heart toward deceased, which are such cogent facts, in addition to the tracks and other evidence mentioned in the original opinion, as to lead us to conclude that we are not willing to assent to the proposition that this verdict is without evidence to support it. Some of the witnesses were attacked, and former statements testified to somewhat variant from those given on the trial, but these are matters for the jury, which they have settled adversely to appellant.

Objecting to our disposition of his complaint against the method by which the jurors were selected, appellant strongly urges that there was no statutory direction, as he claims, for the selection of the special venire; and that under the provisions of Article 26, Vernon's C.C.P., resort must be had to the rules of the common law, when no statutory provisions appear; that there should have been in this case merely an open venire, addressed to some officer, as is the common-law practice, and that such officer should have been left free to select such jurors as he saw fit. We might dispose of this matter by saying that the right to a special venire in a capital case arises wholly by statute; that no such procedure as a special venire was known to the common law under which a venire facias was ordered in any case where the necessity for a jury arose, and no distinction existed between the rule in capital and other felonies, and the officer executing the writ selected and summoned the jury. The provisions of our statute regarding jury commissioners, and fixing their duties when selecting men to act as jurors during the entire term of court, many of which were referred to in the original opinion, were not affected as to counties having no city of 20,000 population, by the jury wheel law, and we find numerous specific statutes in force at the time of this trial giving to both the State and defendant the right to special venires (Arts. 656-657, Vernon's C.C.P.); directing that the court shall set such capital cases for a particular day (Art. 659, Vernon's C.C.P.); entering an order specifying the number of persons who shall compose the special venire in capital cases (Art. 658, Vernon's C.C.P.); directing that the sheriff shall notify the men whose names had been drawn to answer the summons to the venire in the different capital cases, to be in attendance on the day for which they were drawn, etc. (Art. 661a, Vernon's C.C.P.) It seems difficult to see how it could be contended, in view of these statutory provisions, that there were no statutory rules in such case and that it was proper to resort to common-law methods, which would be in violation of said statutes.

It was very material to show that appellant wore shoes at the time of the homicide, for reasons stated in the original opinion. The sheriff testified that at or about the time he arrested appellant, he got from him a pair of shoes, which he fitted in certain tracks leading up to and away from a point near where deceased was killed, and where there was more or less evidence of an ambush. The record discloses that the shoes were obtained while appellant was under arrest, but he seems to have voluntarily given them to the officers. No conversation had at the time is in the record. Objection was made to this testimony, and it is now again insisted that it was erroneous. We have fully discussed this matter, and held adversely to the contention of appellant in the recent case of Rippey v. State, 86 Tex. Crim. 539, 219 S.W. Rep., 463.

On the instant trial, appellant swore that he wore boots on the day of the homicide. On cross-examination, he was asked if on a former trial of this case, he did not state, in response to a question by his own counsel, that he had told the sheriff, when arrested, that he did not remember whether he had on boots or shoes on the day of the killing. Over objection, he answered that he might have so testified. This seems clearly admissible, under all the rules. If, while on the stand, he had been asked by the State relative to a statement made by him on a former trial, and it was now made to appear that such former statement was a matter not then admissible, and about which he had been compelled, over proper objection, to answer, a different question would have been presented, and we would hold the objection well taken, but it is well settled that the testimony of one accused, given on a former trial, may be reproduced against him, even though at the time he so took the stand, he was in custody and unwarned. See Branch's Ann. P.C., Sec. 80. Such statements made in the voluntary testimony of an accused, even though he be in custody and unwarned, and inadmissible against him on his first trial, or any subsequent trial, as original evidence, become admissible if he volunteers in his testimony, while a witness for himself, a statement embracing or containing what he said to the officer when arrested. Appellant cites the case of Walker v. State, 28 Texas Crim. App., 112, as by analogy supporting his contention that this question was inadmissible. We cannot agree with same. Judge Willson, in the Walker case, held to be inadmissible, the statement offered as a voluntary statement made by the accused on his examining trial, but the learned judge held that this statement was not made as a voluntary statement, was not authenticated by the magistrate; that the accused was not warned, nor were any statements made by him found to be true.

One Virgil Morris testified for the State as to a conversation between appellant and his brother, which he said took place near sundown on the day of the homicide. Appellant strongly attacked this witness by testimony to the effect that on a habeas corpus trial held in June, 1916, and also in a conversation had about the time of the examining trial, held probably in January of the same year, said witness made statements fixing the time of the conversation between appellant and his brother as earlier in the day. To sustain said witness, the State offered the testimony he gave upon the first trial of this case in November, 1916, and also a written statement made by the witness in February, 1919, wherein on both occasions he stated that the said conversation occurred about sundown. The appellant objected to the consistent statement made by the witness in November, 1916, upon the ground that it was an attempt to sustain the witness by proof of a consistent statement made by him after the date of the impeaching statement. In White v. State, 42 Tex.Crim. Rep., this Court held admissible a consistent statement made one day after the date of the impeaching statement, no corruptive influence appearing to have approached the witness in the interim. See Hudson v. State, 49 Tex.Crim. Rep., 90 S.W. Rep., 177; Brookbank v. State, 55 Ind. 169; State v. Hendricks, 32 Kansas 559.

Appellant cites a number of authorities, all of which we have examined, among them being Elliott v. Pearl, 10 Pet. 412 and Conrad v. Griffey, 52 U.S. 480. We have the most profound respect for the court rendering these opinions, but observe that it is the practice of that Court to hold all evidence of such corroborative statements inadmissible; but these two cases go further, and hold that this is especially true of statements subsequent in date to the impeaching statement; and the reason given is, that to hold otherwise would enable a witness, knowing the likelihood of his impeachment by proof of contradictory statements, to build up a false corroboration by making to many persons consistent statements. Queener v. Morrow, 41 Tenn. 123, is also cited, but this case is decided upon a different proposition, it therefrom appearing that the consistent statements were made by witnesses while in jail, where they were thrown at the instance of plaintiff, such consistent statements being made to the plaintiff, and being in his favor; and the appellate court rejects them, because tainted by interest and improper influence. State v. Caddy, 15 S. Dak. 167, is also cited, but what is there said relative to the admissibility of subsequent consistent statements, is whollydicta, as the court held said corroborative statements admissible under the circumstances of that case. State v. Moon, 20 Idaho 202, is cited The same is likewise not in point, and its utterances bearing upon this question are dicta.

We would decline to follow State v. Petty, 21 Kas., 54, and Stirn v. Nelson (Kas.), 70 P. 355. These two cases seem to support appellant's contention. In the Petty case, a homicide had been committed. The wife of deceased — one Mrs. Clark — was a witness for the State, and testified that Petty was one of the men who killed her husband. The accused asked her if some two hours after the homicide she had not told one Tatman that she did not know who killed her husband? She denied this, and the accused used Tatman as a witness. He swore that she did so state to him some two hours after Mr. Clark was killed. Thereupon, the State put on the stand one Guffey, who said that about one hour after the homicide, Mrs. Clark told him that the accused was one of the men who killed her husband; the State also put on the stand three other witnesses, who testified that on the evening of the same day, Mrs. Clark told them that the accused was one of the men who slew her husband. The appellate court held Guffey's testimony admissible, because he said the consistent statement was made to him an hour before Tatman claimed the impeaching statement to have been made to him, but rejected the testimony of the three witnesses to whom consistent statements were made later on the same day, because of the fact that they were made subsequent to the time fixed by Tatman. We are unable to follow a holding that seems so to grasp at the shadow and reject the substance, and that seems also to be based on the acceptance by the court of the fact that Tatman told the truth, and that Mrs. Clark was thereby shown to have falsified. The question involved in every case like this is the truth of the present narrative given by the witness on the instant trial. As affecting this question, the court permits the opposing party to show inconsistent statements made by the witness at other times, and in such case many jurisdictions, our own among them, allow the witness so attacked to be supported by testimony of consistent statements. Many of the authorities seek to confine the time of such consistent statements to a period near the time of the occurrence involved, but we are unable to grasp the force of this position in those cases where the attack is not based on the approach to the witness of some corruptive influence, but is based on the hypothesis that the witness is one reckless of the truth, and by reason thereof, has made statements contradictory to the one given in evidence. We think the question of time only material as affecting the weight of the testimony, this being for the jury. It is evident that there can be no time limit placed on the attacking statement, and that it is permissible to prove against a witness that he made contradictory statements at any time or place prior to his utterance on the witness-stand in the instant case. It is also true that the greater the number of such contradictory statements, the more forcible the assault on said witness. If the rule be adopted at all, that consistent statements are provable, it seems impossible to fix any arbitrary limit of time to the admissibility of such statements, and especially does it seem to us a misconception of the whole question, to allow the impeaching party to fix a date upon which he states the impeachment statement was made, and to then refuse to allow the introduction of any supporting statement subsequent in date to the one fixed in such impeachment. As stated, the question involved is the present truthfulness of the witness, and to permit the attacking party to select any date from the time of the occurrence testified to, down to the moment of testifying, as his point of attack, and to refuse the attacked witness the privilege of covering any time in the defense subsequent to the date fixed by the attack, is to give a weight to the attack; a credit to the impeaching testimony, for which there is neither reason nor logic. Mr. Tatman swears that Mrs. Clark told him two hours after the death of her husband that she did not know who killed him. She swears that she did not tell Mr. Tatman this. Hence, there arises this conflict between Mrs. Clark and Mr. Tatman. The State then offers to prove that subsequently, and on the same day, Mrs. Clark told other people that Petty killed her husband, and this is rejected. There is no reason for such holding. In the case of the State v. Hendricks, 32 Kas., 559, the opinion in the Petty case was modified, and in said Hendricks case, the appellate court says: "Such corroborating evidence is not limited to those statements made by the witness before the time when his statements, given in evidence to impeach him, were made, but may be extended to other statements made by him afterward."

Appellant also cites State v. Fontenot, 19 So. 114; Davis v. Graham, 29 P. 1007 (Col.); Adams v. Thornton, 82 Ala. 260. In none of these cases is the point necessarily involved. Ry. Co. v. Sullivan, 190 S.W. Rep., 745, is also cited; this being a case in which the Court of Civil Appeals at Ft. Worth held that a witness attacked by proof of contradictory statements made at the first trial of the case, could not be sustained by proof of consistent statements made on a second trial of the case. As authority for its holding, said opinion quotes 40 Cyc., 2787, which states that corroborative consistent statements are inadmissible. It also cites Ry. Co. v. Eastman, 95 Texas; this being a case in which a prior consistent statement was rejected because self-serving. Neither of these authorities cited in the Sullivan case supports a holding which attempts to differentiate between the admissibility of a consistent statement made before, and one made after the date of the impeachment offered. Nor does the reasoning of the court in that case help the matter. It is a well settled but wholly different rule from the one under discussion, that where a witness is attacked by some effort to show that a motive or corruptive influence has arisen since the occurrence testified about, which causes him to give the instant testimony, this gives the right to the party whose witness is thus attacked, to show that before the cause for such motive existed, or the corruptive influence approached such witness, his statement or testimony was the same as that given on the instant trial. In his reasoning in the Sullivan case, the learned judge, confuses the issue by basing his decision upon this question of motive, and upon the further fact that the witness was in the employ of the plaintiff, and to that extent his declarations were affected.

We do not find anything in the cases of Keith v. State, 44 S.W. Rep., 849, Scott v. State, 47 S.W.R., 531; Anderson v. State,50 Tex. Crim. 134; 95 S.W. Rep., 1037; Rice v. State,50 Tex. Crim. 648, 100 S.W. Rep., 771, which are of legitimate weight in deciding this question. The Scott case,supra, does use some expressions which might be considered by one desiring such interpretation, as favorable to appellant's contention, but they are wholly dicta, as the effort in that case was by proof of consistent statements to sustain one who was attacked upon the ground that he had been to the penitentiary, and it is apparent that any effort to support by proving consistent statements prior or subsequent, would not be allowed in such case.

Reviewing all the decisions of the various jurisdictions, which seem to hold that supporting statements made after the date of the proposed impeaching statement, are inadmissible, we find that the only reasoning worthy of consideration or discussion, offered in support of such holding, is that such subsequent consistent statements would encourage the witness to make numerous statements of that character, after making the contradictory statement from which he might expect impeachment. To our minds, this reasoning is fallacious. It presupposes the fact that the witness sought to be impeached, made the contradictory statement; and also imputes to the witness not only knowledge and recollection of the fact that he has made such contradictory statements, but also of the further fact that the opposing party will find it out and bring forward such contradictory matter against him, should he ever become a witness none of which are sound. In our opinion, however, the holding that such subsequent contradictory statements are inadmissible is wrong, for the fundamental reason that the question is one wholly relating to the credibility of the witness and this is for the jury, and not for the court; and the latter should not undertake to make a rule of evidence, the only reason or excuse for which seems to be, that if the imaginary condition arose, in which a witness undertook to support himself against an attack by making numerous consistent statements, and proving them, the jury would be unable to say that they were manufactured, and would be misled. We do not understand that the court has any right to so invade the province of the jury.

If, however, for the sake of argument, we should endeavor to apply the fallacious reasoning offered for such holding to the testimony of the witness Morris in the instant case, it would fail of application. Conceding that Morris had made statements on the two impeaching occasions testified to, which were contradictory of his instant testimony, could it be claimed with any show of reason that his testimony given on the first trial in November, 1916, was in any sense a statement made by said witness for the purpose of manufacturing supporting evidence for himself, to meet impeachment? Clearly not so, for as far as the record discloses, when Morris testified in November, 1916, on the first trial of this appellant, he was making what would ordinarily be supposed his last and final statement of the matters, and not only this, but it is shown clearly by the record that each of the other statements made by this witness relative to this matter, was under circumstances where the same was reasonably required. How, then, could the reasoning of the rule sought to be invoked apply to his testimony? We are in agreement with the holding in the case of State v. White, and the case of State v. Hendricks; Brookbank v. State; Hudson v. State, supra, and hold that supporting consistent statements are not confined to those made prior to the day fixed by the impeaching witness or witnesses, but that such support may be by subsequent consistent statements also.

It is also again urged that the mother of appellant, when a witness in the instant trial, should not have been asked as to her knowledge when giving testimony on his habeas corpus trial, of the contention then being made by the State that her son was wearing shoes on the day of the homicide. In addition to what was said on this point in the original opinion, we now observe that said interrogation was proper, as a predicate leading up to the question as to what she did say on said habeas corpus hearing, as to whether he wore boots or shoes, or whether she was asked such question. It nowhere appears in appellant's bill of exceptions No. 11, that said witness was not in fact asked, and answered on the habeas corpus hearing, as to what her son wore on his feet on the day of the homicide. It is stated in said bill that appellant objected at the time on the ground that she had not been so asked, but we have always held that the statement of his ground of objections in his bill does not amount to any statement of the matter as a fact. We are not informed by said bill of exceptions whether appellant's mother was asked on the habeas corpus trial as to whether he wore boots or shoes, nor what her answer was at that time, and hence, in any event, such bill would not disclose error.

We think the matters complained of in bills of exception Nos. 3 and 4, wherein it appears that the court rejected evidence of the fact that there were other people in the neighborhood who were on bad terms with deceased, and with whom he had had trouble, were fully discussed and properly disposed of in the original opinion.

We have given much attention to the questions raised here, and especially that respecting the testimony of the witness Morris, because it does not seem to have been fully discussed in this State before, and have been much aided by the exhaustive brief and argument of the attorneys for appellant, but find ourselves unable to agree with the contentions made. The motion for rehearing is overruled.

Overruled.