Roberts v. State , 70 Tex. Crim. 297 ( 1913 )

At a former day of the term the judgment herein was reversed. Messrs. Wear Frazier, counsel for private prosecution for the State, have filed a motion for rehearing attacking the opinion of the court in several respects.

It is contended the court was wrong in holding that the testimony of Dr. Mahaffey was objectionable; among other things, it is stated the bill of exceptions does not show, at the time the objection was made, any evidence had been offered in reference to a change in the condition of the wound by cotton having been stuffed into it, etc. The bill is as follows: "While the witness, Dr. H.A. Mahaffey, was upon the witness stand as a witness for the State, and after it had been developed that he had not seen the body of the deceased until the next day after the homicide, and although there had been no evidence introduced that the condition of the wounds in the deceased's body was the same at the time said witness saw same as they were shortly after they were inflicted, the said Dr. H.A. Mahaffey was permitted to testify as follows," etc. After setting out his testimony in the bill in regard to the matter, the bill further recites that "appellant objected to the questions and answers so made by the said witness, as above set forth, on the ground that it had been developed that a day's time had elapsed between the killing and the examination of the deceased by the said witness, and said witness had no proof that said wounds were in the same condition at the time of such examination as they were when inflicted, and on the further ground that it had been shown and would be shown, and it was thereafter testified that the condition of said wounds had been changed, that is, that cotton had been stuffed in his wound and had changed the condition of the same and had enlarged the same, and the said witness based his opinion in part upon the fact that the wounds in front appeared larger to him than the wounds in the back of said body, and that an opinion based upon such condition was immaterial and prejudicial," etc. We are of opinion that this bill of exceptions does show and recite, as a matter of fact, that Dr. Mahaffey had not seen the body of the deceased until the day after the homicide, and it does recite there had been no evidence introduced that the condition of the wound on the body of the deceased was the same at the time witness saw it as it was shortly after the wound was inflicted, and it does recite as a fact, that it was testified that the condition of the wound had been changed, that is, that cotton had been stuffed in the wound and had changed the condition of it and enlarged it, etc. We quote the record to show the real condition of the bill of exceptions. We are of opinion this sufficiently presents this question, and if upon another trial the matter is again thus presented, that part of Dr. Mahaffey's testimony with reference to his opinion based on the condition of the wounds as set forth in the bill should not be permitted to go to the jury. Experiments, as originally stated, are permissible, but the experiment must indicate the condition of the things at the time the experiment is made as conformable to the conditions at the time the thing happened about which the experiment is made.

It is contended the court's opinion was wrong in holding the trial court erred in permitting testimony in regard to the fact that there was a considerable amount of gambling in appellant's neighborhood among the negroes and Mexicans a year before this homicide. It is further claimed in the motion if the testimony is not admissible, that "it was a matter so utterly immaterial, towit: that there were Mexicans and negroes in the country that it could not prejudice or in any way affect appellant's rights." The evidence introduced over objection was that there was a great deal of gambling going on among the negroes and Mexicans in that country a year before the homicide. What appellant had to do with this, or why it should have been introduced against him we do not understand. If it was utterly immaterial as contended by counsel, then it may be asked why was it introduced? It was put in for some purpose, and unless appellant was in some way connected with it or it entered into his action with reference to this homicide, if immaterial so far as he was concerned, it was prejudicial; at least, it was intended to operate in some way against him else the State would not have put it before the jury. It was prejudicial. Lawlessness is not immaterial when urged against an accused. It does affect him adversely.

Another question is suggested in which it is contended the court was wrong in reference to the evidence of the witness Frazier. It is true that the opinion does not state the matter exactly as it should have been stated, for upon reading the opinion it seems there was some confusion as to which witness testified to certain facts, whether it was Johnson or Frazier. To remedy this matter and put it as the bill of exceptions shows, the following will be noted from the bill: "A.M. Frazier, county attorney, while on the witness stand, as a witness for the State, was asked, `If Edgar Johnson, a witness who had testified for defendant, while talking to the witness Frazier, Judge W.C. Morrow and Judge W.C. Wear, on the previous night, had told either of them anything about any threat that he had heard the deceased make concerning the defendant?' Be it further remembered that the witness Edgar Johnson, a witness who had testified for the defendant, testified that deceased had made threats against the life of defendant, and that he had communicated same to the defendant; that thereupon counsel for defendant objected to said question propounded to the witness Frazier, and the answer sought to be elicited thereby, on the ground that no predicate was laid for that character of impeachment and that said testimony was hearsay, irrelevant and immaterial, which objections were overruled by the court and the witness was permitted to testify and did testify that the witness Edgar Johnson, on the previous night, while talking to said parties, had not told them a word about any threat he had heard the deceased make concerning the defendant." Without taking up the exceptions, etc., and going further into this matter, this statement is simply made to correct the original opinion as it does not show clearly how the matter occurred. What we said before we adhere to in regard to this matter, so far as the legal conclusion is concerned. If it is sought to contradict Johnson by Frazier, it was necessary that the matter be called to Johnson's attention, under the rule in the Hyden case, 31 Tex.Crim. Rep.. That decision lays down the correct rule. This is noticed simply to make the original opinion conform more correctly to the bill of exceptions, and state the matter exactly as it occurred, and to remove any doubt as to the position of the two witnesses, Frazier and Johnson, in their testimony.

Another contention in the motion is that the opinion reversing the judgment is erroneous in holding the charge of the court on murder in the second degree deficient. We again repeat the criticised charge, as follows: "Malice is always a necessary ingredient of the offense of murder in the second degree. The distinguished feature, however, so far as the element of malice is concerned is: That in murder in the first degree malice must be proved to the satisfaction of the jury beyond a reasonable doubt as an existing fact, while in murder in the second degree, malice will be implied from the fact of an unlawful killing." This is not the law. Malice will not be necessarily implied froman unlawful killing. Manslaughter is an unlawful killing, and an intentional one, yet malice is not implied. Negligent homicide is an unlawful killing but malice is not implied. Murder in the second degree has been frequently defined, and it is unnecessary to review the authorities. While it is true in another portion of the charge the court drew the distinction between murder in the first and second degree, and, among other things, stated that express malice constituting murder in the first degree must be proved, and where the facts do not show mitigation or extenuation or justification, a homicide will be murder in the second degree. But when the court comes to apply the law to the case and instruct the jury as to their guidance upon this subject, the charge uses the following language: "Now, bearing in mind the foregoing instructions, if you believe from the evidence beyond a reasonable doubt that the defendant, on or about the time charged in the indictment with his implied malice aforethought, with a pistol, said pistol being a deadly weapon or instrument reasonably calculated and likely to produce death in the mode and manner of its use, with the intent to kill, and not in self-defense did shoot and thereby kill the said Rufus C. Weiss, as charged in the indictment, you will find him guilty of murder in the second degree," etc. Looking at the definition in the fact of this application of the law, this charge is not sufficient. The court had charged the jury that malice necessary to constitute murder in the second degree will be implied from anunlawful killing. In another portion of the charge drawing or seeking to draw the distinction between the two degrees of murder, the court informed the jury that murder in the second degree would be constituted where there were no mitigating or extenuating circumstances or justification. Now applying the law he leaves the matter before the jury that a killing under any circumstances except in justification or self-defense would constitute murder in the second degree. The charge would have been in much better condition, where the law is applied to the case, had the court left off the expression "and not self-defense" did shoot, etc. Having given this part of the charge, the jury should also have been instructed with reference to the other matters that might reduce the killing below murder in the second degree. The court having instructed the jury that malice aforethought, under the foregoing instructions, applied of necessity to the definitions given, would include manslaughter in his idea of malice aforethought. This is emphasized by the exception in the application of the law to the case wherein the jury was instructed that if he killed in self-defense it would not be murder in the second degree. But it leaves the jury to conclude that if he killed under any other circumstances than self-defense under the foregoing instructions he would be guilty of murder in the second degree. Manslaughter is not included in the foregoing definition, but was in fact in the case. Now, if defendant killed under circumstances which would constitute manslaughter, it would not be murder in the second degree, and could not be malice aforethought. The court having charged the jury that malice will be implied from the fact of an unlawful killing, and then in applying the law to the case told them that under the foregoing instructions if he killed that it would be upon malice aforethought unless he killed in self-defense. Having submitted this matter in this manner to the jury, it was evidently erroneous. We refer to the Best case, wherein Judge Ramsey laid down the correct and proper form. It is unnecessary here to quote from that opinion. See Best v. State, 58 Tex.Crim. Rep.. This matter was so thoroughly elucidated by Judge Hurt in Miles v. State, 18 Texas Crim. App., 156, it is deemed unnecessary to discuss that question further. Judge Hurt, in his usual, able and exhaustive manner, reviewed this question in that case. The writer does not care to add or try to add to or supplement his reasoning; in fact, it is seldom the case when Judge Hurt had given careful attention to a proposition and wrote upon it, that it would need further illustration or discussion. See also Branch's Crim. Law, sec. 426, and cases as well cited in Branch's Crim. Law, sec. 428. It has been held so often it is unnecessary to repeat it, that a charge is error which authorizes a conviction for murder in the second degree on a state of facts which would constitute only manslaughter. Miles v. State, supra, and Ray v. State,46 Tex. Crim. 511. Again it is said, stating the circumstances, the absence of which authorizes the inference of implied malice, a charge should not ignore circumstances which mitigate or extenuate a homicide. Ellison v. State, 12 Texas Crim. App., 557; Neyland v. State, 13 Texas Crim. App., 536; Turner v. State, 16 Texas Crim. App., 378; Wheeler v. State, 56 Tex. Crim. 547.

A review of these cases convinces us that appellant was correct and is entitled to a reversal of his judgment, and there is no substantial reason set out in the motion for rehearing why the former opinion should be set aside or the judgment affirmed.

The motion for rehearing is therefore overruled.

Overruled.