Harris v. State , 37 Tex. Crim. 441 ( 1896 )

Appellant was convicted of murder in the second degree, and given five years in the penitentiary, and prosecutes this appeal. Appellant, in her first bill of exceptions, claims that she was prejudiced by the action of the court in permitting the witnesses, John Davis and Dollie Harris to read certain testimony taken on the examining trial of Hogan and Goodwin, tried for the same offense; and also complains that the court erred in using said testimony in examining said witnesses. The ground of objection urged is that the said written testimony was not certified to by the justice, and that the trial was in a case against other defendants, charged with the same offense, and that the appellant in this case was not a party in said preliminary examination. The court in his explanation to said bill, shows that when he used said examining testimony, it was only for the purpose of refreshing the memory of the witnesses named, and that at that time the jury had retired. Said explanation, however, still leaves that part of the bill with reference to the course pursued in the examination of the witnesses by counsel in connection with the examining testimony intact. The bill does not show how said examining testimony came before the court and jury. If it was at the request of the witnesses themselves, in order to see what they had testified to on a former trial, involving the same facts, it was competent for them to have recourse to said examining testimony, if they should say it would refresh their mind, regardless of whether it was certified to by the justice or not. In order to have availed the appellant, the bill should have shown that said witnesses did not request the use of said examining trial testimony, and that they did not identify and recognize the same as the testimony given by them before the justice on the trial of Hogan and Goodwin. And, moreover, in order for this court to determine whether or not any injury resulted to the appellant from the use of said testimony, the questions and answers — that is, the testimony itself that was then elicited — should have been contained in the bill. This was not done. Appellant has a bill of exceptions to the refusal of the court to admit the testimony of one T.J. Anderson. The court, however, in his explanation to the bill, shows that the said Anderson knew nothing of the matter inquired about of his own knowledge, and that his testimony upon the point was merely hearsay. The court did not err in refusing to admit such testimony. Appellant also excepted to the action of the court with reference to the witness, Davis, introduced by the State. She complains that the court permitted leading questions to be propounded to said witness, and the court undertook the examination of said witness, and, among other things, during said examination, said to the witness that he would give him a chance to put himself right before he left the stand, and he wanted him to tell the truth about this matter, and that he stated to said witness, "that you will be handled for perjury if you do not tell the truth in this case." The court in his explanation to said bill, says that all that transpired between him and said witness after the jury had been retired, and that it was then that he insisted on the witness telling the truth about the matter, and that he would be handled for perjury, etc., if he did not tell the truth. How this examination by the court came up is not explained; nor is it shown what answers, if any, the court elicited from the witness. In the absence of such showing, we are not in a position to determine whether the action of the court was prejudicial to the appellant or not. We would here observe that the examination of witnesses on the part of the State, as a rule, is confided to the prosecuting attorney, and the court should interfere in such examinations with great caution. He should certainly refrain from any attempt to coerce testimony, much less to menace or bulldoze the witness; and if it had been shown in this case that by the action of the court in threatening the witness with the punishment for perjury, testimony material to the State against the appellant had been elicted, this court would not hesitate to reverse the case. The bill, however, is fatally defective in failing to show that any testimony at all was elicted; and the court explains that what he did in the case with reference to the witness was after the jury had retired; and even it is not shown that any material testimony was elicited from said witness by the action of the court. As far as the course pursued by the court in permitting leading questions to be propounded by the District Attorney to the witness, Davis, as has been repeatedly held by this court, that is a matter largely in the discretion of the trial judge. If the witness being examined is an unwilling or reluctant witness, this being made manifest, the privilege of propounding leading questions to a witness called by the State is not improper. The bill in this respect is defective, in that it does not advise us as to the attending conditions when the court permitted leading questions to be propounded by the District Attorney to the State's witness. The indictment, in alleging the means of death, uses the following language: "That the said defendant did then and there, with malice aforethought, kill A.S. Blackmon, by some means to the grand jurors unknown." Appellant insists that this indictment is defective, because the means or weapon with which the homicide was committed is not stated. With reference to a homicide committed where the weapon or instrument is not known, Mr. Wharton says: "If the instrument by which the homicide was committed be not known, it is enough for the indictment to aver such fact; and under the circumstances the want of specification will be excused on the same principles as allow the non-set-ting out of a stolen or forged paper, when such paper is lost or in the prisoner's possession. Thus, where the fourth count of the indictment averred that the defendant, in and upon the said G. P., feloniously, willfully, and of his malice aforethought, did make all assault, and him, the said G. P., in some way or manner, and by some means, instruments, and weapons to the jurors unknown, did then and there feloniously, willfully, and of malice aforethought deprive of life, so that he, the said G. P., then and there died,' this was sustained by the Supreme Court of Massachusetts. "The rules of law,' said Chief Justice Shaw, when charging the jury, 'require the grand jury to state their charge with as much certainty as the circumstances of the case will permit; and if the circumstances will not permit of a fuller and more precise statement of the mode in which the death is occasioned, this count conforms to the rules of the law.' " See, Whar. on Hom., Sec. 818. The pleader in this case appears to have followed the rule here stated. Appellant also contends that some proof should have been offered that the means of death was not known to the grand jury which presented the bill of indictment, insisting that a matter of this sort is within the rule laid down by this court with reference to the allegation in thefts as to the unknown owner of property alleged to have been stolen. We know of no particular case which would require us to adopt the same rule with reference to indictment for murder in alleging the means of death as in indictments for theft. We have held, in the character of cases referred to by counsel, that where the proof on the trial made no suggestion that the owner of stolen property, by the use of diligence, might have been ascertained, the State would be still compelled to show that reasonable diligence was used by the grand jury to ascertain the name of the owner. Applying the same rule here, the evidence on the trial indicates only in a vague and general way what means did cause the death of the deceased. We are inclined to the opinion that the homicide was committed by strangulation, caused by the use of a rope; or it may have been done by a blow back of the ear with some instrument. In a case like the present, where it is doubtful how death was caused, it is allowable to charge that it was done by some means unknown to the grand jury. Appellant complains that the court should have given the appellant the benefit of a charge on the theory that she may have been an accomplice or an accessory, and that the jury should have been instructed to acquit her if the believed that she was either an accomplice or an accessory. The court instructed the jury that before they could convict appellant they must find beyond a reasonable doubt that she was a principal, and the evidence, to our view, indicates that, if there was on her part any guilty participation in the alleged homicide, it was neither as an accomplice nor an accessory, but as a principal. Appellant complains that the court did not instruct the jury as to the purpose for which Stedman's testimony as to the statement made by the appellant on the trial of Hogan and Goodwin was admitted in evidence, and she insists that the purpose of such testimony should have been restricted by the court to the purpose of impeaching her testimony. She was not a witness in the case, and for the court to have instructed the jury as insisted by appellant would have been error. Moreover, this testimony was admitted as original evidence, as her statements or confessions with regard to the homicide, and her connection therewith. Appellant contends that the evidence is insufficient to sustain the verdict. We have examined the record carefully, and in our opinion it does sustain the finding of the jury. It is a most peculiar case, but we cannot account for the acts, conduct, and statements of the appellant on any other reasonable hypothesis than that she was a guilty participant in the murder of the deceased. There being no errors in the record, the judgment is affirmed.

Affirmed.

HURT, Presiding Judge, absent.