Hyde v. State , 138 Tex. Crim. 457 ( 1940 )

On his motion for rehearing appellant insists that the court erred in not sustaining the bills of exception complaining of the testimony of Eric Isgate. A little more definite discussion of this testimony should suffice to make the court's position clear on this subject, and we think the original conclusion was correct. The appellant was a guard for the penitentiary System on one of its farms. On the particular occasion of the tragedy, he was in Cherokee County in search of an escaped convict. He was accompanied by another guard who apparently had not known him for any great length of time. The two had purchased and drunk two pints of liquor, and at the time of the tragedy were trying to buy more. For this purpose they had gone to the home of Jug Weaver from whom they thought they could buy some more liquor. It was at his home that the tragedy occurred. Prior to that and during the same day, the appellant had met up with the witness, Eric Isgate, in a barber shop and at said time engaged in a conversation in his presence about a man he had apprehended as a prisoner, and made the remark that when he asked the fellow to stop he would have shot him if he did not stop whether he knew he was a convict or not. The crowd in the shop apparently did not agree with this conduct, and the appellant turned to the witness and asked if he would not have done the same thing, to which the witness replied in the negative. The witness testified on re-direct examination concerning this conversation that when he made this negative reply to the appellant in the barber shop he (appellant) got up and moved like he did not like it much and that he appeared very angry at the witness. As the appellant and his companion approached the home of Jug Weaver, the witness Isgate was in his car near the house and with the engine running, while the deceased, Charlie Goodson, who had come to the place with Isgate, had gone into the house, entering by the back door. When the appellant approached he recognized Isgate and said to him, "Get out of that car, you convict-loving son-of-a-bitch; I'm going to kill you." The witness pleaded with him but the appellant demanded that he get out and go into the house. He punched the witness with a pistol and still insisted that he go in. As he entered the house the appellant, who was in a drunken condition, saw the deceased, Charlie Goodson, come around the corner and in just a few feet of the witness who was entering the house. It was the State's theory which appears to be reasonable, that the appellant mistook Goodson for the witness Isgate and probably thought that he had turned around and was coming back toward him. He fired the shot that killed Charlie Goodson immediately. The appellant did not know Goodson and had no dealings with him, and the State's theory that he thought it was Isgate is reasonable. This being true, the transaction earlier in the day at which he became angry with the witness and which he recalled at that particular time is pertinent. If he had killed Isgate there could be no doubt of its admissibility. Inasmuch as he killed Goodson at the very time while he was driving Isgate into the house and probably under the mistaken idea of a drunk man that he was shooting at Isgate, it is likewise clear that the detail of the earlier transaction was admissible in explanation of the motive for his conduct at this particular time.

Appellant's counsel ably briefed the question, but did so on the theory that the testimony as to what transpired in the barber shop was another distinct and separate offense. It was not an offense against the law but merely an incident which is connected up by the appellant's language with the things that happened at the very time of the killing. There being no motive for the killing of Goodson by the appellant, the question of his intention became a matter of importance, and the evidence complained of is certainly appropriate to make that explanation.

Appellant discusses the case of Woodward v. State,51 S.W. 1122. We note that the court, in discussing the testimony held to be inadmissible, considered it as a transaction between the appellant and another entirely different person. In the instant case, Isgate was materially involved. The appearance of Goodson probably saved the life of Isgate. In the Woodward case the reason of the court for its decision was that "there was no attempt to connect these matters so as to make the testimony admissible." The connection that was made of the testimony certainly gives it quite a different standing in the instant case.

Hill v. State, 73 S.W. 9, was a burglary case. The court permitted the prosecution to prove another burglary on the same night by the same defendant. It was held in that case that inasmuch as the other burglary had no connection with the one for which Hill was being tried and that it threw no light on the charge that he broke into the Tillman store, that it was an isolated transaction and as such was inadmissible in the case for which he was being tried. We adhere to the doctrine in that case, but it is not applicable here.

Pace v. State, 124 S.W. 949, is likewise of a different nature. The defendant on trial had met a witness at a certain place and told him that he had come there to "raise hell." The court held that it was not admissible to introduce testimony of an extraneous crime except that it should come within some of the exceptions to the rule, as for the purpose of showing intent, system, identity of the parties, etc. No connection was shown between the statements made at that time and the crime which the appellant actually committed, there being no question as to intent.

Lawrence v. State, 82 S.W.2d 647, approved the ruling in the foregoing cases and restated the general principle often expressed that evidence of distinct and separate offenses is inadmissible except under the stated exceptions. No isolated case is ever admissible for the purpose of showing that the defendant is a criminal generally, but there is nothing in the Lawrence case helpful to the appellant's contention here.

Appellant insists that there is no evidence offered in any way connecting him with the transaction or the occurrence about which Isgate testified with the death of Goodson. We think that the appellant very forcefully connected the two conversations when he approached Isgate, calling him a "convict-loving son-of-a-bitch." He had special reference to the transaction involving the evidence complained of.

The question herein treated gave this court considerable concern when the case was originally presented. We have again reviewed the evidence and the authorities on this question, together with each and every other question raised by the motion for rehearing, and have come to the conclusion that they were correctly disposed of in the original opinion.

The motion for rehearing is overruled.