Miller v. State , 36 Tex. Crim. 47 ( 1896 )

Appellant was convicted of murder in the second degree, and his punishment assessed at fifteen years in the penitentiary, and from the judgment and sentence of the lower court he prosecutes this appeal. Appellant complains that he was compelled to take on the jury, one Ledbetter, who was a brother of a deputy sheriff of Dallas County; that he was misled by the clerk as to the number of his challenges, or he would not have taken this juror. It appears that this mistake of the clerk was corrected by the judge some time before the appellant's challenges were exhausted. At any rate, appellant or his counsel should have kept account of the number of challenges, and then they would not have been misled by the clerk. The fact that Ledbetter was a brother of the deputy sheriff would appear to be a lame excuse on which to predicate even a peremptory challenge. Appellant introduced one Asia Myers, to prove the reputation of the deceased as being a quarrelsome and dangerous man. The question was asked of said witness by the appellant, "If he was acquainted with the general reputation of the deceased for peace and quietude in the community in which he lived?" witness answered, "that the deceased was a good sort of fellow." On further questioning by defendant's counsel, he said that he did not know what peace and quietude meant. Counsel then wanted an opportunity to instruct the witness as to the meaning of such words. It is the duty of counsel to ascertain, before they put a witness on the stand, what they can prove by him, and it is too late, after a witness has been introduced, to then undertake to ascertain what he knows; or, if disappointed in his testimony, to then propound leading questions to him, in order to indicate to him what is wanted. In the action of the court in this regard we see no error. Nor was there any error in the court permitting the witness, Jim Garrett, to be sworn as a witness and placed on the stand, although he had remained in the courthouse, and heard some of the witnesses testify. This is a matter largely in the discretion of the court, and, unless the bill of exceptions shows some abuse of that discretion, this court will not reverse. The bill in this case does not show such abuse. The charge of the court on threats in connection with self-defense, we think was sufficient, and it was not necessary to give the charge asked by the appellant. The charge of the court on manslaughter, while not called for by the facts in this case, was certainly as liberal towards the defendant as he could ask. The defendant introduced a witness — Tom Henley — who testified that he was present, and saw the difficulty, heard the deceased curse the defendant, and say, "God damn you! I am going to kill you," and reached his hand in his bosom, and the defendant grabbed the deceased, and they struggled and fought, and the defendant cut the deceased, etc. The State introduced Will Fletcher, for the purpose of impeaching the witness, Henley, and he testified that Henley told him the evening after the difficulty, that he (Henley) never heard a word spoken until the boys fell out of the wagon. The court charged the jury as follows on this subject: "You are instructed that, in passing upon the defendant's guilt or innocence, you will not consider any evidence as to what the witness, Tom Henley, may have said to Will Fletcher or others, as to what he saw or heard at the killing, but you may look to such evidence in considering the credibility of the said Tom Henley, and the weight to be attached to his evidence." Now, it will be observed that the witness, Fletcher, gave no affirmative evidence as to any statement of anything by Henley, but merely stated that Henley told him that he did not hear what he testified he did hear. The court, in this case, need not have charged as to the purpose of this testimony at all, but we certainly fail to see how the appellant can complain that he did limit the negative testimony of the witness, Fletcher; and the fact that the court may have predicated the instruction, not only as to the contradictory testimony of Fletcher, but as to others, when no other impeaching witness was introduced by the State, we fail to see how such action could have prejudiced the appellant. There is nothing in the contention that the name of the prosecuting attorney to the indictment was typewritten, and not signed with pen and ink. By another bill of exceptions it is shown that the State was permitted to preve that "Ed Miller had a pistol on the day and at the time of the killing, when he went down the road from George Miller's house, towards Henry Miller's house, and in allowing counsel for the State to state before the jury that he expected to prove a conspiracy between the defendant and said Ed Miller to kill the deceased." This was excepted to by the appellant, but, no grounds of objection are stated in the bill. This bill is too meager and indefinite to be considered. Nor is the explanation of the court attached to the bill any more satisfactory, to-wit: that he "permitted this evidence on the promise of the prosecution to show a conspiracy between the defendant and Ed Miller, and stated it should not be considered unless a conspiracy was shown." These acts of Ed Miller may have been admissible. If the testimony showed by circumstances or by positive evidence that the conspiracy existed between the defendant and Ed Miller, then these acts may have been in furtherance of the common design. It will be seen that the bill is too indefinite to require consideration. If this evidence was admissible at all, it was to prove the main fact, for the act of one co-conspirator in furtherance of the common design is the act of all the conspirators; and such evidence does not require a charge limiting its effect. This is based upon the further fact, however, that in such state of case the conspiracy has been shown. In this connection it will be noted that no objection was urged, and no facts set out in the bill of exceptions showing the predicate was not laid which would authorize the introduction of said testimony. The bill should have been sufficiently specific, certain, and full in its statements to have manifested the supposed erroneous ruling of the court; otherwise such ruling will be presumed correct. Until the bill comes within the well-settled rules in this regard, this court is not authorized to revise the same. Willson's Crim. Stat., §§ 2368, 2516. There was no motion made to exclude this evidence on the ground that the conspiracy was not proved. Id., § 2514. As this bill comes before us, it is too indefinite to require consideration. The judgment and sentence of the lower court are affirmed.

Affirmed.

[NOTE. — Appellant's motion for rehearing, filed May 5th, 1896, was overruled without a written opinion. — Reporter.]