Roberts v. State , 107 Tex. Crim. 139 ( 1927 )

The appellant was convicted of manslaughter, and his punishment assessed at five years in the penitentiary.

The record discloses that the appellant was indicted for murder, being charged with shooting and killing Calvin Petty with a shotgun on or about March 28, 1925. It appears from the record that prior to the homicide the appellant had made complaints against Oscar Petty, brother of deceased, and Frank Eubanks, charging them with adultery. It was the contention of the state that the deceased and Earl McNurman had gone to the residence of the appellant on a friendly mission and for the purpose of seeing appellant and requesting him to withdraw said complaints; and that while at the residence of the appellant, and while deceased and McNurman were unarmed, the appellant, without provocation, killed the deceased by shooting him twice with a shotgun. The appellant defended upon the ground that the deceased had accosted him on the morning of the homicide in the town of O'Donnell and demanded that he withdraw said complaints, threatening him with death before sundown in the event he failed to do so; that in the afternoon deceased and McNurman appeared at his residence in an automobile; that after deceased had cursed the appellant and accused his wife of being unchaste, deceased and McNurman grabbed him, appellant, and were attempting to throw him in their car when the appellant's wife appeared upon the scene with a gun, whereupon the appellant then broke loose from the parties, ran into the house, and secured his gun; that he observed the deceased getting out of his automobile with a drawn pistol and heard him tell McNurman, "Throw the son-of-a-bitch in the car," and state that he, deceased, would kill the appellant if the complaints were not withdrawn, at which time appellant shot and killed deceased.

The record discloses nine bills of exception. Bill No. 1-a complains of the manner of summoning the venire. The disposition we have made of the appeal precludes the necessity of discussing this bill, as this question is not likely to arise again upon another trial.

Bill of exception No. 1 complains of the action of the court in permitting the state's witness McNurman, on direct examination by the state, to testify over appellant's objection that he knew the reason why the deceased went to appellant's house just prior to the homicide, and that the deceased's purpose was to try to get appellant to withdraw the complaints that had been filed against Eubanks and deceased's brother, Oscar Petty. The objection urged to this testimony was that it was admitting the undisclosed motives of the deceased, which were unknown to the appellant and which were hearsay. We think the learned trial judge fell into error in the admission of this testimony in the absence of a showing that appellant was apprised of said motives of the deceased, and especially where the testimony impinged on the defense, as in this case. Bradley v. State,60 Tex. Crim. 398; Dennis v. State, 101 Tex.Crim. Rep.,276 S.W. 715; also see Branch's Ann. P. C., Sec. 1930, citing Brumley v. State, 21 Tex.Crim. App. 238, and many other authorities.

Bill No. 2 complains of the action of the court in permitting the witnesses Dr. Campbell and Bert Bailey to testify to the dying declarations of the deceased, on the ground that there was not a sufficient predicate laid to show that the deceased was sane at the time of making such declarations. We are unable to agree with this contention. The testimony of said witnesses shows that the deceased was conscious of approaching death, and the doctor testified, "I judge he was of sound mind." The witness Bailey testified to hearing the deceased make a statement and that same was voluntary and not under persuasion or in response to any leading questions, and then testified, "He seemed to be of sound mind." We are of the opinion that this evidence was a sufficient predicate for the admission of the dying declarations of the deceased, especially in the absence of any controverting evidence thereto.

In bills 3, 4 and 5 complaint is made to the action of the private prosecuting attorney G. E. Lockhart with reference to his manner and conduct in interrogating the appellant while on the stand, but in view of the court's ruling and the disposition that we have made of this case, it becomes unnecessary to discuss these bills, as the issues contained therein are not likely to arise again upon another trial.

Bill No. 6 complains of the refusal of the court to require the private prosecuting attorneys to deliver to appellant's counsel a written statement taken by the County Attorney from the appellant's daughter, Miss Claudie Roberts, while she was being questioned by the state relative to said written statement. The qualification of this bill by the court shows that although he refused to require the state to permit appellant's counsel to see said written statement while said witness was upon the stand, he did thereafter tender said statement to appellant's counsel and advised them that they could call the witness back to the stand for further examination if they desired to do so, which offer was declined by them. In view of this qualification, we are of the opinion that the bill fails to show such error as would require a reversal of the case.

Bill No. 7 complains of the refusal of the court to permit the appellant, on cross-examination of the state's witness Wimbley, a city marshal, to prove that the deceased started a difficulty in which said officer and deceased were engaged, and that said difficulty arose out of a complaint made by one Bolden against the deceased for disturbing the peace, upon which a warrant of arrest had been issued, and that the officer was attempting to execute same at said time; and, further, that deceased attempted to make Boldin withdraw said complaint. Appellant's contention is that this testimony was admissible for the purpose of showing the dangerous character of deceased, and for the purpose of showing that he, deceased, began the difficulty with appellant in the instant case. This bill fails to show that the appellant was cognizant of any of the facts sought from said witness, nor are there any facts set out in said bill authorizing the admission of such testimony. Branch's Ann. P. C., Sec. 2094, citing Patterson v. State, 56 S.W. 59; Willis v. State, 49 Tex.Crim. Rep., and many other authorities.

Bill No. 8 complains of the action of the court in permitting the state to introduce in evidence, over the appellant's objection, a written statement made and sworn to by the appellant's daughter shortly after the homicide to the County Attorney, which statement was, in effect, contradictory to her testimony upon the stand in behalf of her father. The County Attorney testified that the statements in this affidavit were made by the witness to him. We are of the opinion that this testimony was admissible for the purpose of impeaching said witness, and that there was no error in the refusal of the court to exclude same from the jury.

Bill No. 9 complains of the action of the court in permitting the state to show by G. E. Lockhart, one of the private prosecuting attorneys, that the appellant made no statement to him relative to the homicide at the time appellant called him to the jail for the purpose of talking to him. It is contended that this testimony was inadmissible because it was a privileged communication between attorney and client, and if offered for impeachment purposes it was on a collateral issue. We are of the opinion that this bill, as presented, shows no error. The appellant had testified to a contrary state of facts, which authorized the state to rebut appellant's testimony by the introduction of the evidence complained of in this bill.

For the error above mentioned, we are of the opinion that the judgment of the trial court should be reversed and remanded, and it is accordingly so ordered.

Reversed and remanded.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

ON STATE'S MOTION FOR REHEARING.