Ghent v. State , 76 Tex. Crim. 523 ( 1915 )

Appellant has filed a motion for rehearing in which he earnestly insists that we erred in holding that proof of the general reputation of deceased was admissible, contending that he had made no attack on deceased in that respect. If not, of course, it would be error to admit evidence as to the general reputation of deceased. But is he correct in saying he made no attack on deceased as a peaceable, law-abiding citizen? If appellant was making no attack on the reputation of the deceased as a peaceable, law-abiding man, why does he testify that Sheriff Crane told him that "Jernigan (deceased) was a bad man, and you will have to watch him"; that Jack Nash told him, "That this man Jernigan was one among as bad men as there was in that neck of the woods"; that when the sheriff had gone to see Jernigan the year before that Jernigan had got raw, and that if he, appellant, went down there he would have to watch Jernigan? Why does he introduce testimony of what he says Jernigan, deceased, said when he talked to him about what it was claimed Jernigan had said to the negro, Nick Edwards, and Jernigan saying that he was going to kill Nick for telling him, appellant? Why does he introduce Nick Edwards to prove that Jernigan had said to him, "Nick, we don't allow any bullies down here — it seems to me that you put yourself up as a target trying to play bully," and that he, Jernigan, would bet him fifty dollars he would not stay on the farm, and would give him fifty dollars if he did stay? That if he, Nick, did stay he would wake up in hell one of these mornings. Why did appellant introduce E.K. Atwood, W.T. Nash and Jack Nash, all as witnesses to prove that they had told him, appellant, that Jernigan was a dangerous and violent man, and have Mr. Jack Nash testify "that it was a dangerous country, a bad country, and that any man who would paste white-cap notices and dynamite a man's property would shoot him in the back. That Sheriff Crane had said it was a hard country and a dangerous class of men who did these things; and had told appellant that Jernigan was a bad man"? Why bend all his energies on this trial to prove circumstantially, at least, that Jernigan was connected with the white cappers, if he was not attacking the character of Jernigan as a peaceable, law-abiding man? The record is replete with evidence of the character above stated, and it could not and was not introduced for any purpose other than to cause the jury to think that Jernigan was a dangerous and violent man, and a violator of the law. If not, such evidence had no place in this record, for it was in no way connected with the circumstances of the killing other than to show the character of man appellant was dealing with at the time he shot him. To say that the appellant could make this character of attack on deceased's reputation, and the State could not meet it with legitimate evidence, is, to our mind, but to state an absurdity. Jernigan's mouth was closed by death, and to permit these men to testify that he was a dangerous man, a bad man, a violent man, and his neighbors, men who had known him for years, would not be permitted to testify as to the general character he had established in their midst, would not be just to the dead man. His life was as clear to him as is the liberty of appellant to him. Courts are organized and conducted that the truth may be known; the witnesses are introduced, and then the jury can determine whether or not those who said deceased was a bad man, a dangerous man, and a violent man, or those who said his general reputation was that of a peaceable, law-abiding citizen, are entitled to most credit. Appellant says this is tearing down the bulwarks of the law. But we hardly think so. This question was discussed in the case of Hysaw v. State,69 Tex. Crim. 562, 155 S.W. Rep., 941, and it was held: "We think that where the appellant puts the reputation of deceased in issue on this subject by evidence either of his general reputation to that effect, or by specific acts show it, it would be proper for the State to rebut this by showing that his reputation was not as attempted to be shown by such evidence, but his character was that of a peaceable, quiet and law-abiding man."

In Bullock v. State, 74 Tex.Crim. Rep., 165 S.W. Rep., 196, this court said: "Certainly when an appellant is permitted to so attack a deceased, the State should then be permitted, if it could do so, to introduce proof to rebut such evidence. The State unquestionably has the right to meet this proof by showing that the general reputation or character of a deceased was that of a quiet, peaceable and law-abiding man, and not the reverse, as attempted to be shown by appellant."

This question is also discussed in Johnson v. State,74 Tex. Crim. 179, 167 S.W. Rep., 733, and Darnell v. State,58 Tex. Crim. 585, and in both cases such testimony is held to be admissible, when the appellant injects into the case the issue of the character of deceased. This is not only the rule in this court, but such has been held to be the rule in civil cases by our Supreme Court in Tex. Pac. Ry. Co. v. Raney, 86 Tex. 363 [86 Tex. 363], and our Courts of Civil Appeals in Texas Cent. Ry. Co. v. Weideman, 62 S.W. Rep., 810. And not only is it the rule in this State in both civil and criminal courts, but it is the rule generally adhered to as evidenced by the opinions in the following cases: Lewis v. State, 35 Ala. 380; People v. Ah Fat,48 Cal. 61; Central Ry. Co. v. Dodd, 83 Ga. 507; Clackner v. State, 33 Ind. 412; State v. Fruge, 44 La. Ann., 165; Vernon v. Tucker, 30 Md. 456; Russell v. Coffin, 8 Pick. (Mass.), 143; People v. Hulse, 3 Hill (N.Y.), 309; State v. Roe, 12 Vt. 93; George v. Pilcher, 28 Gratt. (Va.), 299. When the appellant first offered evidence that deceased was a bad man and a violent man, then the State could meet that evidence by testimony tending to show that he was not a bad man and a dangerous man, but a peaceable, law-abiding citizen.

The only other question raised in appellant's motion for rehearing is that the court erred in his charge in presenting the law of self-defense. This was thoroughly discussed in the original opinion, and we do not deem it necessary to do so again as our opinion on that question is not changed. The court aptly presented both the theory of the defendant and the State, and told the jury the defendant should be given the benefit of a reasonable doubt on this issue.

The motion for rehearing is overruled.

Overruled.