Newchurch v. State , 135 Tex. Crim. 619 ( 1938 )

We will discuss the points relied on by appellant in his motion for rehearing in the order they appear in said motion.

(a) Appellant again insists that the note or power of attorney (set out in our original opinion) found on appellant's person after he was taken to the hospital was inadmissible. He complains also because we did not discuss the authorities cited by him as supporting his position. Referring to appellant's brief we note seven cases mentioned upon which he relied as showing the instrument in question was inadmissible. Examination of said cases reveals that proof of threats was objected to as being too general and not having reference to the party killed. No such objection was here interposed, as was pointed out in our original opinion. The case of McMahon v. State, 46 Tex.Crim. Rep., 81 S.W. 296, particularly relied on in appellant's motion, we do not construe as does appellant. It seems clear to us that in such case the threat proven was too general and must have been objected to on that ground.

(b) Appellant reiterates his claim that the trial court erred in not permitting him to prove by Mrs. Agnes Wands, appellant's daughter, that when she saw her father in the hospital two days after the killing he "was in an abnormal and deranged state of mind." It appears from the bill presenting this point that some objections were urged by the district attorney to preliminary examination of this witness by appellant, and sustained by the court. If such examination was for the purpose of laying a predicate upon which the witness could express the opinion sought from her the ruling of the court may have been erroneous. However, to present error the bill should have stated what appellant could have shown by said witness that appellant said or did upon which she proposed to base her opinion that he was insane. We bring forward the following excerpt from Thomas v. State, 98 Tex.Crim. Rep.,266 S.W. 147:

"It is doubtless true that, upon the statement by the witness of his acquaintance with an individual whose mental condition is the subject of inquiry, it would be competent for the witness to state that during such acquaintance he had observed no peculiarity of appearance, demeanor, speech, or other eccentricity which had led him to the conclusion that the individual was insane. Turner v. State, 61 Tex. Crim. 101,133 S.W. 1052; Gardener v. State, 90 Tex.Crim. Rep.,235 S.W. 897; Plummer v. State, 86 Tex.Crim. Rep.,218 S.W. 499. Before a witness can be permitted, however, to express an opinion that the subject of inquiry isinsane or of unsound mind, it is essential that the witness detail before the jury some act, omission, peculiarity or eccentricity upon which the opinion is formed. This view, we think, is supported by the text-writers, and by the decisions of this Court. See Underhill on Crim. Ev., (3d ed.) Sec. 264; Williams v. State, 37 Tex. Crim. 349, 39 S.W. 687; Plummer v. State, 86 Tex. Crim. 493,218 S.W. 499; Roberts v. State, 89 Tex.Crim. Rep.,231 S.W. 759; Kellum v. State, 91 Tex.Crim. Rep.,238 S.W. 940; Gardner v. State, 90 Tex.Crim. Rep.,235 S.W. 897, and cases referred to in the opinions mentioned." See, also, Meyers v. State, 113 Tex.Crim. Rep.,19 S.W.2d 317; Shields v. State, 104 Tex.Crim. Rep., 283 S.W. 844; Langhorn v. State, 105 Tex.Crim. Rep., 289 S.W. 57; Upton v. State, 20 S.W.2d 794.

(c) Appellant next reiterates that bills of exception four and five, complaining of argument of the district attorney, reflect error demanding a reversal. Bill number four reflects that in his closing argument the district attorney stated that "no witness had testified or attempted to testify to any improper actions of the deceased [Crouse] toward defendant's girls except that Jeff Lee saw him kiss the daughter Emily." Appellant objected to the statement of the district attorney on the ground that said argument was improper in that appellant had attempted to prove another familiarity on the part of deceased toward Emily, whom deceased afterwards married, which evidence was excluded. The court immediately sustained the objection and instructed the jury not to consider said argument. The statement of the district attorney was not of that character which could not be remedied by the prompt action of the court.

By bill number five appellant complained of a statement of the district attorney in his closing argument as follows: "* * * the State had given to the jury all the facts it had against deceased Crouse and there was nothing against him." In his motion for rehearing appellant is rather severe in his criticism of the disposition of this bill in our original opinion; taking the position that to hold such argument harmless would be equivalent to overruling twenty-five cases which he cites in his brief in support of his proposition. Counsel, we think, rather exaggerates the effect of our holding. This Court has found it necessary often to reverse cases on account of improper argument, but ordinarily they are cases where the argument injected a new fact which was harmful to the rights of accused in some particular, or in which the argument was of such a manifestly improper and harmful nature that it would be unjust to let the conviction stand in the face of such argument. We find nothing of the kind in the argument here complained of, even though the district attorney may not have been justified in making the statement. It must be borne in mind that there was not even a semblance of self-defense in this case; nothing to justify appellant under the law in killing Crouse. The sole defense interposed was that of insanity. Nothing in the statement objected to impinged on the only defense offered. If Crouse had been guilty of improper familiarity towards the girl he afterward married he had made such amends as it was possible for him to make, and under the law he had not forfeited his life at the hands of appellant. The argument might reasonably be disposed of on the ground that from all the facts presented to the jury in regard to deceased Crouse the district attorney drew the conclusion "that there was nothing against him." But even conceding that it was the statement of a fact by the district attorney which ought not to have been made, still we are unable to reach the conclusion that under the facts of this case it should bring about a reversal of the judgment. It has often been said that an argument must be appraised in the light of the circumstances of the particular case, and that the same argument in one instance might be reversible error and in another harmless. See Vineyard v. State, 96 Tex. Crim. 401,257 S.W. 548, and cases therein cited; also Threadgill v. State, 124 Tex.Crim. Rep., 61 S.W.2d 821; Heidle v. State, 129 Tex.Crim. Rep., 86 S.W.2d 641.

The motion for rehearing is overruled.