Huey v. State , 81 Tex. Crim. 554 ( 1917 )

In the State's motion for rehearing the original opinion is criticised. Among other things, the following quotation is made from the opinion as being erroneous, towit: "A wordy altercation became a little incisive. Deceased jumped out of his wagon with a double-edged ax. Appellant says he got the ax out of the wagon, while Williams says he picked it up from the ground." That a wordy altercation incisive in nature occurred is made evident by the record. It is unnecessary to mention that matter further. The opinion is correct in stating that deceased jumped out of the wagon. This is testified by appellant, while Williams, the other eyewitness, stated that deceased got out of the wagon by first stepping on the brake and thence on the ground. It was Williams who said that the deceased got the ax out of the wagon and not appellant. Appellant stated that after deceased jumped from the wagon he went a few feet and picked up the ax from the ground. Whatever error in the statement from the record is made in the opinion is hereby corrected. The facts there stated are correct, except appellant was made to testify to things that Williams testified and Williams to matters of which appellan testified. Just how this occurred the writer does not know. Doubtless in dictating he placed the parties in that attitude, but that is a matter of small moment.

Another expression in the opinion is criticised by the State in its motion for rehearing. This extract is made from the motion for rehearing: "The court, on the first page of its opinion in this cause, says: `He (appellant) accounts for taking the shotgun, by stating that he would find squirrels and rabbits in passing, and would use the gun for the purpose of killing these.' The above statement of appellant shows that he was not hunting for squirrels, and the only place in the entire record where rabbits are mentioned is in the court's opinion." Through some inadvertence State's counsel overlooked the testimony of Mrs. Huey. She says: "It was not unusual for him to take that gun with him; he carried it every once in a while. He would carry the gun with him sometimes to kill squirrels or young rabbits. In going down there to his work he would go through a branch or bottom and through some timber. He was in the habit of killingsquirrels and young rabbits down there." The criticism of the State's motion is not well taken.

The opinion is further criticised as being incorrect in holding that the bloody clothes of the deceased were inadmissible. In the light of this motion we have again carefully reviewed that question and are the more fully convinced we were not in error. Bloody clothing may or may not be admissible, and this depends upon whether they serve some useful purpose in the elucidation of some issue in the case, or tend to solve some question about which there may be some issue; but their admission is to be justified by some reason authorizing their consideration in the solution of doubtful propositions or in elucidating some question arising on the trial. Nor can the State's present contention be sustained, that is, that the clothes were admitted to meet and contradict appellant's evidence and show there were no shot holes in the shirt sleeves of deceased. Such contention was not made on the trial by any testimony called to our attention. The court did not admit the clothes upon the ground that they had any relation to the shirt sleeves or holes in the shirt sleeves. The court says he admitted the clothes for the following reasons: to show the exact place where the deceased was shot, there being only one eyewitness, and he was fifteen to sixteen feet away at the head of deceased's mule team, and in the opinion of the court was necessary on this issue. There was nothing in the case before the jury at the time the clothes were admitted upon which to contradict appellant. It was while the widow of the deceased was on the stand testifying and through her that these clothes were admitted. The bill is quite lengthy and unnecessary to repeat. She was the second witness placed on the stand by the State in making out its case originally. The defendant had not testified, and there was nothing to contradict so far as he was concerned. The court, it would seem from his qualification, admitted the clothes only as bearing upon the location of the wound. There was no question about the location of the wound, and none raised on the trial. Deceased was shot in front with a shotgun at close range, because the shot did not scatter. The wound went in about two or two and one-half inches on the right side from medial line of the deceased's body and through the waistband of his pants. This was the only wound on him. There was but one shot fired. None of the shot entering the body went through. There could be no issue on the question as to the location of the wound on the body of deceased. The clothes were not admitted to contradict appellant, because appellant had not testified. The bill with reference to this matter is rather lengthy and it is deemed unnecessary to embody it in the opinion.

It is also contended the opinion was wrong in holding that some of the matters which occurred between Dike Williams and J.M. Taylor, as shown by the bill of exceptions, when Taylor was taken by Williams to the scene of the tragedy, were inadmissible. The writer has gone over this matter again in the light of what is said in the motion for rehearing, and the original conclusion, in the mind of the writer, in the main, is correct, concededly evidence of physical facts surrounding the scene of the homicide may be admissible; but the physical facts are one thing and a conversation between the parties with reference to incidents and matters of that sort that are in controversy, is quite a different thing. Williams took Taylor and others to the scene of the homicide and pointed out places which he said the parties occupied, and their movements at the time and place of the homicide. That Williams could testify to this, or that he could take parties to the point of the homicide and show, in a general way, the physical facts, or point them out, may be conceded, but when the State undertakes to show the statements and conversations of Williams and Taylor as to Williams' view of the matters and occurrences, we are of opinion the State went farther than was authorized. Illustrative of this, there was a serious contention on the trial as to the acts and conduct of the deceased and of the defendant. Williams testified, as did appellant, that appellant had his gun lying some steps away in the edge of some young growing corn, and perhaps where there were some Johnson grass. Williams stated at a certain point during the trouble appellant threw down the hammer he had and went for his gun, which was lying off some distance, picked it up, and in a half raised or stooping position shot without taking aim; at least without placing it to his shoulder. There was a contention between appellant's testimony and Williams' as to the distance to the gun and the location of the gun. Williams says at the time appellant got the gun he came back half way from where he picked it up to where he discharged it, and that he never straightened up after picking up the gun. That he was close to the deceased is evidenced by the fact that the shot went almost into a solid load without scattering, into the body of deceased about two and one-half inches from the middle of the front or abdomen, entering through the waistband of his pants. Taylor was permitted to testify that when he went to the scene of the tragedy with Williams that Williams pointed out a place where he said the gun was located, and he, Taylor, in checking up this matter, stepped twelve steps to where Williams said the gun had been located and twelve steps back. There was no evidence outside of the statement of Williams that this was the location of the gun, and there were no physical facts on the ground to show that the gun had been thus located. Taylor states that there was one set of tracks going to where Williams said the gun was and one set of tracks going back. The entire evidence for the State and the defendant, through Williams and appellant, contradicts this. Appellant says he carried the gun down there with him thinking he would find squirrels; that he had no intention of having a difficulty with deceased, and placed the gun six or eight steps from the fence on which they had been working, and went to the fence with a view of going to work. Of course, in carrying the gun to the place it was located there must have been one set of tracks made going and another coming away. The gun did not get there of itself. It was carried there by appellant. Williams says appellant went to the place where the gun was and picked it up and returned about half way and shot. From any angle of view there is no possibility of escaping the fact that there were two sets of tracks, the first made when appellant carried the gun to the place where it was placed and returned, and the other when he went for it and returned for the purpose of killing or shooting the deceased. There was nothing to indicate that the tracks pointed out by Williams were the tracks of appellant except his statement, and that was made to Taylor. This was a matter occurring between third parties, and Williams could not thus corroborate himself. That Williams could testify that the gun was located at a certain point, and that he saw the actions of appellant in going to and coming from the gun, and the use of it, would be original testimony, but that he could take Taylor and relate these facts to him and have Taylor come in and testify about them from Williams' statement is a different proposition. The writer mentions this in giving his reason why some of the testimony through the witness Taylor was not admissible. The acts and declarations and conversations between Taylor and Williams about these matters are not evidence. It is a conversation and matters occurring between third parties. That tracks upon the ground leading to or coming from a certain place may be admissible is not the question, but when it is sought to connect the defendant with those facts something more is necessary. The man who testifies himself that certain parties made these tracks can not corroborate himself or be corroborated by his statement to other parties as original testimony, and the third party will not be permitted to detail the statement as to the witness' version of the matters as they occurred. If appellant made the tracks testified by Taylor, it is a matter of evidence, but the statements of Williams to Taylor that appellant made these tracks, in the judgment of the writer, are not admissible.

There is another matter about which Taylor testified to which exception was reserved. Appellant testified to the fact that deceased cursed him and used very vigorous language in connection with the swearing. Taylor was permitted to testify that about a year before the homicide deceased had joined the church, and, therefore, had not been guilty of swearing since. The court says he admitted this because deceased had joined the church. The inference could be deduced that, therefore, he did not swear. We are of opinion this testimony of Mr. Taylor was not admissible.

The motion for rehearing is overruled.

Overruled.

July 25, 1917.