McGrath v. State , 35 Tex. Crim. 413 ( 1896 )

Appellant was tried on an indictment charging him with murder, was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of nine years; and from the judgment and sentence of the lower court he prosecutes this appeal. The appellant made a motion for a continuance on account of the absence of the winesses, Bill Beatty, Sam Green, W.M. Gillentine and Henry Lennox. The motion was overruled and the defendant excepted. Appellant also made a motion for a new trial on the ground set forth in his application for a continuance, which was overruled, and the defendant saved his exceptions thereto.

The application shows that Lennox was present at the time of the homicide, and that his testimony would be material for the defendant. As to the diligence to procure this witness, it appears that the indictment in this case was presented on the 19th of January, and the defendant was immediately arrested; and on the 26th of January the case was set down for trial on February 20th. The defendant did not have subpœna issued until the 28th of January. The application further shows that the said Lennox was used as a witness by the defendant at the examining trial, and pending the final trial was in the custody of appellant, who had agreed to pay his board at a certain hotel or boarding house in Fort Worth; that said witness remained there until the 2nd or 3rd of February; that about said time the witness left, leaving a note, which the appellant attached to his motion, stating, that he had gone, without stating where to, and requested appellant to pay the balance of his board, as he had agreed to do. It is also shown that said witness, Lennox, lived in Minnesota. The witness appearing to be a transient person, it was the duty of the appellant to have had process issued for him at the earliest possible date, but it seems he allowed nine days after he was arrested, to elapse before application for process was made for said witness. If process had been applied for promptly, the officers may have been enabled to secure service on said witness. Furthermore, it appears that the said witness, after process had been issued, was in Fort Worth for three days thereafter, and was a transient person, in custody of the appellant, his whereabouts known to defendant, and it is not to be presumed that the officers knew him, or at what particular place in the city of Fort Worth he could be found. Certainly, under the circumstances of this case, it was the duty of the appellant to have promptly informed the officers where said witness could be found, so that process could be served on him; and, if he had any apprehension that the attendance of the said witness could not be secured by the mere service of a subpœna, it was his duty, instead of undertaking to secure his attendance by his personal custody of said witness, to have taken steps to secure his attendance by legal means. In this connection, it will be noticed as a significant fact, that the appellant in this case had paid the board of the said witness up to the date of the issuance of said subpœna, but not beyond that time; and the note to appellant suggests that the contract of personal custody expired with the issuance of said subpœna, and that the witness was then at liberty to go where he pleased. Furthermore, although said note was received by the defendant on the 2nd of February, no effort whatever is shown from that time on up to the date of the trial to ascertain the whereabouts of the said witness. As to the witness Gillentine, it was alleged that he was a resident of Dallas County, but was temporarily in Erath County. Process, by attachment, was issued for him on the 18th of February. It was proposed to be shown by him that the deceased, Rushing, had entered into a conspiracy and made threats to kill the appellant on the night in question, on which the deceased was killed. Gillentine subsequently appeared in court, and was present at the trial, but was not placed on the stand by the appellant.

As to the witnesses, Beatty and Green, they both lived in Tarrant County, and were under process of subpœna. By both of these witnesses it was proposed to prove that the deceased had made antecedent threats to kill the defendant. The threats proposed to be proved by the first witness were not communicated to the defendant, and the threats proposed by the second witness were communicated to the defendant prior to the killing. It is not shown in the application how fat from the county seat said witnesess lived. No process of attachment was asked or issued for them, and as the trial in this case lasted several days, if the defendant considered their testimony material, it would appear that their attendance could have been secured by the issuance of other process, at least some further effort should have been made in that direction. But, considering the evidence in the case, to our minds, it is at least doubtful whether said testimony of threats was material on the trial of this case. There was evidence of threats produced on the trial, but the evidence fails to show any overt act on the part of the deceased to carry out said threats against the defendant. The State proved by a witness, J.H. Phelps, that he was present during the difficulty, in which Rushing was killed; and that he saw no weapon in Rushing's hand. Said witness was then asked by the State's counsel: "If the deceased, Rushing, had a knife or pistol, or any other weapon in his hand, state whether or not you were in a position you could have seen it." This question was objected to as being leading and argumentative. The court overruled the objection, and the witness answered in the affirmative. The defendant saved his bill of exception to said question and answer. The witness, Phelps, had previously described the difficulty and the situation of the parties during said difficulty, and that Rushing was in his view during the entire progress of the difficulty, and he testified that he had no knife or other weapon in his hand, and we see no error in the action of the court in permitting the question and answer complained of. See, Fulcher v. State, 28 Tex.Crim. App., 465.

While the witness, Strong, was on the stand, the witness stated, on examination by the State, that he told Maddox that he was going to make complaint against several gambling houses, that he could not run, and didn't think anybody else had any more right to run than he had. On this point the defendant's counsel proposed to prove by said Strong, on cross-examination, that Maddox told him that if he would make complaint against McGrath, that he would serve the process. This testimony was objected to by the State, and the objection was sustained, and defendant excepted. It does not occur to us that it was material to show that the marshal or city officers of Fort Worth would serve processes placed in their hands on complaints filed in the City Court. This is to be presumed. At least we fail to see how the rejection of such testimony in any wise injured the rights of the appellant. Nor was it material to show, on the part of the defendant, that Maddox told Strong that he thought he was mistaken about defendant McGrath's "jobbing him" — meaning thereby that McGrath was seeeking to have the rival gambling house of Strong closed up. It was immaterial what Maddox thought about this. It appears from the eighth bill of exception in this case, that the difficulty which occurred between Strong and McGrath on the Saturday night preceding the Sunday night of the killing, was gone into at considerable length, and the details thereof testified to before the jury. This was all done without objection on the part of the appellant, until the witness had told all of the circumstances that led up to the fight, and then that the parties (McGrath and Strong) began fighting. At this juncture, counsel for the State, asked the witness: "What did the parties fight with?" Appellant objected to this question, which objection was overruled by the court, and the witness answered: "With pistols; they beat one another with their pistols." In the further progress of the testimony of the said witness, detailing said matter, the witness stated, that while they were fighting, Strong's pistol dropped, and he then seized the pistol of the defendant, and the defendant holloed to his brother, Peter Crow "shoot him; kill him." This testimony was also objected to by appellant, and he reserved his bill of exception to its admission. This bill of exception states, as the ground thereof, that the same was irrelevant and immaterial. Counsel should have stated distinctly the reason for the objection to this testimony; and this should have been set forth in the bill of exception. The statement that the same was irrelevant and immaterial is entirely too general.

The allegations of a bill of exceptions should be full and explicit, and where the objection is to the admissibility of testimony, the very ground of objection should be stated, so that the question may be fairly presented to the court; and the mere statement, as a ground of objection, that the testimony is immaterial, is not sufficient, unless obviously the testimony cannot be considered material for any purpose. (See Thompson on Trials, Secs. 593 to 697, inclusive, and collated authorities in notes; Willson's Crim. Proc., § 2516.) We would further observe that if the details of the difficulty of Saturday night, was not proper evidence in the case, the defendant should have promptly objected to the introduction of any of the details of said difficulty; or if he was taken unawares, and certain details admitted, he should have presented a motion to strike out. He should not be permitted to allow the introduction of a part of the details and permit them to remain in evidence, and then object to the remainder. By this means he might get certain of the details that suited his purpose in evidence, and then cut off further testimony on the subject. In this case the details of the fight of Saturday night had been fully gone into, and if they were calculated to prejudice the appellant, it was with his consent and permission, as he failed to object thereto. There was no motion to strike out, and we fail to see how the admission of the further facts connected with the said difficulty in any wise prejudiced him. In the ninth bill of exception, when Carter, who was a witness for the defendant, was on the stand, on cross-examination, he was asked by the State, "If he didn't take one Milton Black home with him on the night of the homicide?" Appellant objected to this question — his objection was overruled and he saved his exception. The grounds of objection here urged was that the said testimony was immaterial, irrelevant and incompetent; and what has been said before with reference to the requirement that the specific ground of objection should be stated is applicable to this. If, however, it be conceded that the bill presents an objection in a tangible and legal shape, we fail to discover how this testimony was calculated to prejudice the appellant. Milton Black was not a witness in the case, his testimony was not before the jury, and nothing is shown as to said matter that could be considered injurious to the appellant.

With reference to the tenth bill of exception, the same observations made in regard to the two preceding bills, hold good as to this. Besides, in our opinion, it was competent to show that the defendant's witness, Shields, had been engaged in renting rooms to prostitutes as testimony going to his credit before the jury. With reference to the testimony of Sam Mackham, in regard to what occurred at Strong's saloon between him and Bob Miller, as to the pistol which Bob Miller had on that night, inasmuch as the defendant had shown that Bob Miller had a pistol at defendant's saloon on that night, it was competent, on the part of the State, to show in rebuttal thereof, that after that, his pistol was left at Strong's saloon; and what occurred between said Miller and Mackham, with reference to said pistol, was proper to be shown. In the thirteenth bill of exception, appellant complains of the actions of the court in excluding the testimony of Yancy, Paddock, Ward and others, to the effect that they were acquainted with the general reputation of appellant, McGrath, for truthfulness, and that it was good. Appellant insisted that this testimony was proper, inasmuch as there was a conflict between the testimony of appellant and other witnesses in the case, and on this account it was claimed that appellant had a right to offer evidence of his reputation for truthfulness in the community where he resided. The general rule on this subject is, that where there is a mere conflict of evidence between witnesses, that the testimony of a witness in such case, cannot be supported by evidence of general reputation for truth. This court has heretofore admitted, as an exception to this rule, that if the witness be a stranger in the community where the trial is had, evidence of his reputation for truth in the neighborhood where he lives may be offered in support of his testimony. See, Phillips v. State, 19 Tex.Crim. App., 158. This case does not come within the exception laid down in said case.

In appellant's fourteenth bill of exception, he objects to the charge of the court on murder in the first degree. We see no objection to said charge, but inasmuch as appellant was acquitted on said charge, it is not necessary to discuss it. In defining implied malice, the court, as a part of the charge on said subject, used the following language: "Implied malice is that malice which the law infers from or imputes to certain acts; that is to say, when the fact of an unlawful killing is established, and there are no facts nor circumstances in evidence which establishes the existence of "express malice," and none which reduce the killing to manslaughter, and none which excuse or justify the killing, then the law implies malice." And further charged in this connection as follows: "If you believe from the evidence in this case, that the defendant, Martin McGrath, did, in Tarrant County, on or about the time alleged in the indictment, unlawfully kill James Rushing, by shooting said Rushing with a pistol, and should also believe from the evidence that the defendant in so doing acted with malice, but should not be satisfied beyond a reasonable doubt that he acted upon express malice, then it will be your duty to find the defendant guilty of murder of the second degree, and assess his punishment at confinement in the penitentiary for some period of time not less than five years." The appellant's contention in this connection is, that the court, in the beginning of the said charge defining malice, left out the words, "tends to show," etc. This phrase, "tends to show," is ordinarily used in a charge defining implied malice, but, strictly speaking, the charge in question covers the entire scope between express malice and manslaughter, and justifiable homicide. If the evidence on the one hand tends to establish express malice, it is then a question for the jury; and if, on the other hand, it tends to reduce, mitigate or justify, it is also a question for the jury. Accurately speaking, if the facts do not show on the one hand a murder upon express malice, and do not show on the other hand circumstances that mitigate, excuse or justify, and it is an unlawful killing upon malice, it is implied malice. If the facts in a given case tend to show express malice, it still might be a case of implied malice; and it seems to us that it is more in keeping with the correct definition, and more liberal towards the defendant, to require that the facts absolutely show express malice before the jury would be required to deprive a defendant of implied malice. In other words, the mere tendency of the facts on the one hand or the other is not enough; the facts must show express malice on the one side, and circumstances of mitigation, reduction or justification on the other, to constitute a succinct and proper definition of implied malice, and as giving the correct boundary lines thereof. Of course, in reviewing a charge where different degrees of murder are charged, it is the duty of the court ordinarily to charge reasonable doubt as between the degrees. In our opinion, there was no error in the charge of the court on this subject.

As to the method by which the jury should pass on the credibility of the witnesses, the court charged them as follows: "The jury are the exclusive judges of the credibility of the witnesses, of the weight of the evidence and of the facts proved, you should reconcile all conflicts in the testimony if you can, but if you cannot you must decide which of the testimony is entitled to the greater credibility and weight, and in so determining you may consider the intelligence, interest, apparent bias or prejudice, if any, of the witnesses, as well as their manner of testifying." This charge was objected to by appellant, — the contention being that under the circumstances of this case, appellant, as well as his brother being witnesses on behalf of defendant, it was calculated to call the attention of the jury to their interests in the case. A similar charge to this was approved by this court in Cockerell v. The State, 32 Tex.Crim. Rep.. The appellant complains that in the charge of the court there was a failure to instruct the jury: "That the defendant had the right to act upon the reasonable appearances of danger to himself or his said brother, and that such charge fails to inform the jury that they were to view the matter from defendant's standpoint." The court, in its charge, did not give a general charge on the law of self-defense. The evidence in the case presented two theories, one as developed by the State's testimony, which did not make the killing less than murder in the second degree, and one arising from the defendant's testimony, which, if believed, presented a case of self-defense. The court, instead of giving the ordinary charge on self-defense, gave a special charge as applied to the facts testified to by the defendant's witnesses. The charge on this subject was as follows: "If you believe from the evidence that the defendant did shoot and kill James Rushing at the time alleged in the indictment, but that at the time he did so there was a personal struggle or contest going on between the said James Rushing and the defendant's half-brother, John Mantle, called by the witnesses 'Bread-Wagon Johnnie,' in which struggle or contest said Rushing and said half-brother were striving for the possession or control of a pistol, and that the defendant fired upon or killed said James Rushing to keep him from getting the pistol from said half-brother, or to prevent the said Rushing from shooting or injuring the said half-brother with said pistol, then it will be your duty to acquit the defendant; or, if you are not satisfied beyond a reasonable doubt that such struggle and contest over a pistol between the said Rushing and Mantle was not going on at the time the defendant began to shoot said Rushing, then you will acquit." This charge was predicated upon and directly applicable to the facts proven by the defense, and such charge gave the defendant the full and complete right of self-defense. If the jury should believe that at the time such struggle was going on between John Mantle (the half-brother of defendant) and James Rushing, regardless of how such struggle began, or who was the aggressor, it was not necessary in this case to charge upon appearances of danger from the standpoint of the defendant, because he testified himself, and the special charge in question was predicated directly upon his testimony and that of two other witnesses. Appellant testified that he saw the struggle, and described it, and that he shot the deceased to prevent him from shooting his brother, and then shooting him. The charge on this subject was certainly as favorable to the defendant as he could have asked. What has been said in this connection is applicable to the assignment of error on the part of the appellant, that the court failed to charge on manslaughter. As we view the record, there was no manslaughter in this case. The testimony of the State's witnesses was believed by the jury. As stated before, it was a case of at least murder in the second degree. Said testimony fails to disclose any act, word or gesture on the part of the deceased at the time of the killing in connection with anything that had transpired before that time, that required a charge on manslaughter, and if we view the case from the standpoint of the defendant's witnesses, if they were to be credited, it was a case of self-defense, and nothing else. It could have been neither manslaughter nor murder. The jury in their verdict approve the theory as presented by the evidence on the part of the State, and we see no reason for disturbing their verdict. The judgment and sentence of the lower court is affirmed.

Affirmed.

ON MOTION FOR REHEARING.