Ferguson v. State , 95 Tex. Crim. 212 ( 1923 )

The conviction is for murder; punishment fixed at confinement in the penitentiary for a period of five years.

G.C. Gibson was shot and killed by the appellant.

Appellant justified the act upon the ground of self-defense. There was evidence of threats against the appellant made by the deceased and communicated to him. Appellant testified that he had been advised that the deceased was a dangerous man. Both the deceased and appellant were peace-officers; both were armed. The testimony of the appellant and some of his witnesses supported the theory of self-defense.

The court instructed the jury upon the law of murder, manslaughter and self-defense, and upon both actual and apparent danger; also upon the law of threats, both communicated and uncommunicated.

None of the complaints of the charge or of refusal of special charges are deemed tenable.

The term of court adjourned on the 28th day of January. The bills of exceptions and evidence relating to the motion for new trial were not filed until the 29th of March following. This precludes their consideration. To authorize the review of the action of the trial court upon the issue of fact presented in the motion for new trial, the evidence upon which it acted must be filed during the term at which the conviction is had. This is the rule stated in the case of Black v. State (41 Tex. Crim. 185) and has been followed without exception in subsequent decisions. We will add, however, that if properly presented, the motion is without merit.

The point made is that the jury discussed the failure of Sam Allen to testify in behalf of the accused. Appellant testified that Allen was the Chief of Police and had communicated to him threats purported to have been made by the deceased Gibson. We think the fact that the jury's discussion of the failure to call Allen as a witness would not be receiving other evidence as forbidden by Article 837, subdivision 7, Code of Crim. Proc.; Moore v. State, 52 Tex.Crim. Rep.; Wood v. State,86 Tex. Crim. 550. It was a matter which was made known to them by the conduct of the trial. The appellant testified that Allen had given him certain information. The rule of law protecting the purity of the jury's verdict which was contemplated by Article 837, would be strained to the breaking point if the verdict was vitiated by the fact that the jury commented upon or discussed the absence of the testimony of a witness who was named by one of the parties as being possessed of knowledge of relevant facts touching upon the matter under investigation. Public policy puts some limit upon the right of jurors to impeach their verdict. Thompson on Trials, Vol. 2, Sec. 2618; Bearden v. State,47 Tex. Crim. 271; Montgomery v. State, 13 Texas Crim. App. 75.

The witness Hall testified to the communication of threats. His general reputation for truth and veracity was challenged. Appellant complains of the charge of the court in that it did not limit the testimony of the witness; that the general reputation of Hall was bad. We understand that where facts are testified to which are in their nature susceptible of being used to the injury of the accused for other purposes than impeachment, it is incumbent upon the court, in response to proper objection or request, to embrace in his charge a limitation of the testimony to the purpose of impeachment. We do not understand that the evidence of the witness's general reputation for truth and veracity is bad comes within this rule. The cases to which appellant refers — Wilson v. State, 39 S.W. Rep. 373; Winfrey v. State, 56 Tex.Crim. Rep. — do not support appellant's position. They relate to the well known rule which requires the limitation of proof of extraneous matters which might, if not explained, be appropriated to an improper purpose.

Counsel for the State, in his argument, stated in substance that he was not permitted to prove by Mrs. Gibson the purpose for which the deceased went to town on the night of his death; that he then referred to the baby in the arms of the widow of the deceased and said: "It is not very old." As disclosed by the bill, no objection was urged to the argument; nor was any request made to withdraw it by special charge or otherwise. No surrounding facts are given which would characterize the remarks as of such harmful character as to render them per se reversible error.

After the State had introduced evidence to the effect that the general reputation of the deceased was that of a peaceable man, the appellant sought to introduce an indictment against him charging him with robbery. The rejection of this evidence is made the subject of complaint. Apparently it comes within the rule which forbids the establishment of character by the introduction of proof of specific acts or misconduct. We deem the cases cited in support of this proposition inapplicable. Nelson v. State, 58 S.W. Rep. 107; Dodson v. State, 44 Tex.Crim. Rep.; Smith v. State, 67 Tex.Crim. Rep., 148 S.W. Rep. 699; Johnson v. State, 11 S.W. Rep., 668; 28 Texas Crim. App., 17. These authorities support the rule often given effect in this State that in a homicide case in which the issue of self-defense is presented, facts known to the accused which would be relevant to his state of mind are admissible in evidence. In the application of this rule, it is permissble for the accused to testify to specific acts of violence of the deceased which were within his knowledge or of which he has been informed. In applying this rule in Johnson's case, supra, a previous indictment against the injured party for assault with intent to murder upon the accused was held competent. In the case before us, the appellant testified but did not suggest that he had heard or knew that the deceased had been charged by indictment or otherwise for the offense of robbery, or that he had committed the offense of robbery. Appellant having no knowledge of the indictment for robbery, it is obvious that this could not have formed an element in the control of his action at the time of the homicide. The exclusion of the testimony, in our judgment, was not erroneous. See Wharton's Crim. Evidence, Sec. 1756.

The appellant introduced evidence that the deceased had made threats against the life of the appellant; that these threats were in mind at the time of the homicide, and the appellant having further testified that he has been informed that the deceased was a dangerous and violent man and that the fatal shot was fired in response to a demonstration by the deceased indicating an intention to execute the threat, the evidence on the part of the State that the deceased bore the reputation of a kind and inoffensive man was competent. Russell v. State, 11 Texas Crim. App. 296; Sims v. State,38 Tex. Crim. 642; Cornelius v. State, 54 Tex. Crim. 177; Canon v. State, 59 Tex.Crim. Rep.; Rhea v. State,37 Tex. Crim. 140; Menefee v. State, 50 Tex.Crim. Rep.; Branch's Ann. Tex. Penal Code, Sec. 2095.

In several bills of exceptions it is shown that certain State witnesses testified that the deceased bore the reputation of a harmless, peaceable and inoffensive person. This testimony was in rebuttal of the theory advanced by the appellant and supported by testimony that the deceased had made threats against him and was a violent and dangerous person. On cross-examination of these State witnesses who had testified that the general reputation of the deceased in the respect mentioned was good, they were asked if they had heard that the deceased had been indicted for the offense of robbery. An affirmative answer to this question would have been given, but the court refused to receive it upon the ground that it was not pertinent or relevant upon the issue of violence. The ruling of the court was erroneous. The knowledge of the State's witnesses upon the subject on which they were talking, that is, the character of the deceased as a kind and inoffensive man, was a proper subject of inquiry on cross-examination. From Wharton's Crim. Ev., p. 1013, we take the following quotation:

"So a character witness who has testified as to the good or bad character of the witness whom he is called upon to sustain or to impeach may be cross-examined as to his knowledge of the acts that contradict his testimony, not for the purpose of establishing such acts, but to test the witness's credibility, so the jury may be assisted in determining the weight to be given his testimony."

See Forrester v. State, 38 Tex.Crim. Rep.; Stull v. State, 47 Tex.Crim. Rep.; McGray v. State, 38 Tex. Crim. 609; Hall v. State, 43 Tex.Crim. Rep.; Brittain v. State, 47 Tex.Crim. Rep.; also Patterson v. State,83 Tex. Crim. 174; Johnson v. State, 91 Tex.Crim. Rep., 241 S.W. Rep., 484; Waters v. State, 91 Tex.Crim. Rep., 241 S.W. Rep., 496.

These witnesses would have testified, according to the approved bill of exceptions, that the deceased Gibson had been indicted by the grand jury of Limestone County for the offense of highway robbery with firearms, and that they had heard the charge against the deceased discussed. Highway robbery by the use of firearms being an act of violence entirely incompatible with the peaceful and inoffensive disposition which, according to the State's witnesses in question, characterized the deceased, and the indictment for that offense against him being one in their own neighborhood, it was not only relevant but an important fact as bearing upon the knowledge of the State's witnesses who gave the testimony under discussion and their good faith in the statement. The purpose of their testimony was to show that the deceased was not a man of violent and dangerous character, and not one who might be reasonably expected to execute a threat made. This is an issue involved under the statute, Article 1143 of the Penal Code.

In refusing to permit the cross-examination of the character witnesses mentioned, the learned trial judge, in the opinion of this court, fell into error which requires a reversal of the judgment, which is ordered.

Reversed and remanded.

ON REHEARING. May 16, 1923.