109 S.W. 138 (Tex.Crim.App. 1908), Pratt v. State
| Citation | 109 S.W. 138,53 Tex.Crim. 281 |
| Docket Number | . |
| Date | 20 March 1908 |
| Parties | PRATT v. STATE. |
| Court | Texas Court of Criminal Appeals |
Page 138
Appeal from District Court, Hopkins County; R. L. Porter, Judge.
W. B. Pratt was convicted of murder in the second degree, and he appeals. Reversed and remanded.
Brooks, J., dissenting in part.
Page 139
This is the second appeal of this case. The former appeal is reported in 96 S.W. 8. On the last trial appellant was again convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of five years.
Appellant complains of the action of the court in overruling the motion for a new trial, because of the admission of the testimony of certain witnesses as to the particulars of the difficulty which occurred between the deceased and the defendant on Saturday evening prior to the homicide on the following Monday. The case is one of circumstantial evidence. In such case, and particularly where a defendant relies upon threats and self-defense, the state has, we think, the right to inquire into former difficulties, the surroundings and environments of the parties, with a view of showing the animus of the accused, to ascertain their relations, and to throw light upon the question as to who [53 Tex.Crim. 283] would probably be the aggressor in any difficulty between them. Where there are no eyewitnesses to the killing great latitude must be and is always allowed in the introduction of testimony, and the state should be permitted to explore every legitimate field of inquiry that might throw light on the matter, and develop the relations existing between the parties. To adopt any other rule would tend to obscure the issue in such case, and frequently render it impossible to arrive at the truth, and prevent the punishment of the guilty. Nor is it believed that the adoption of such a rule could or would have the effect to unduly prejudice the rights of the defendant. The case cited by appellant to sustain the proposition herein insisted on ( Holley v. State, 39 Tex. Cr. R. 301, 46 S.W. 39) is not wholly in point. That case was reversed on the ground that the threat proven was too general, and there was nothing in the language that indicated that it was directed towards the defendant, and upon the failure of the court to permit Mrs. Holley to testify that the deceased frequently upbraided her, and expressed ill will and hatred towards defendant. There is, we think, nothing in the decision of that case which restricts the right of the state to prove facts showing malice, and as illustrating the relation of the parties and their previous difficulties.
By the second assignment of error appellant complains that the court erred in not permitting him to prove by the witness Luther Moore what appellant said to him as to the facts of the killing of the deceased. This matter arose substantially in this way: On his direct examination Luther Moore, introduced by the state, testified: "I heard the gun fire on Monday morning. I was on my gallery tying my shoes. I went up to the store with Will Pratt, and met the defendant, who was going east, and he remarked to us: 'You will find Lide around there very damned dead. I shot him, and I guess he is dead."' Upon cross-examination the witness, among other things, testified: "That when he met defendant he was going towards the store and the defendant was going east toward his son's house. That his son lived about 300 yards east of the store, and to go to Cooper one would have to go west from the store, and at the time defendant made the remark there that we would find Lide very damned dead around there, and that he had shot him, defendant was then riding, and I don't remember whether he stopped or not. If he did, he just stopped a minute; but he did not stop and stand and talk any length of time. He made the remark and went on. At that time defendant did not go into a detailed statement as to how the difficulty occurred, or make any explanation. In a few minutes he came on back by the store and said something to me about going to Cooper with him. That he wished somebody would go with him to Cooper and bring his mare back. He then went on in the direction of Cooper, and after he left for Cooper I started to go, and overtook him in about two or three miles from defendant's home, and when I caught up with him, and after I overtook him, I heard him in a conversation with Oscar Anderson and Carter Anderson and myself tell [53 Tex.Crim. 284] about how the killing occurred. In this conversation he, in the presence of all of us, explained how the killing of Lide occurred." Appellant then asked the witness to tell the jury what appellant said in this conversation in explanation of said killing, and how the same occurred. Counsel for the state objected to the inquiry, and the evidence sought to be elicited thereby on the ground that such statement and declarations were hearsay, immaterial, and irrelevant, which objections were by the court sustained, and the proffered testimony excluded. The bill of exceptions evidences that, if permitted, the witness would have testified as follows: "Defendant, in said conversation, had, in the presence of me and Oscar and Carter Anderson on the road to Cooper, stated that on Sunday evening prior to the killing on Monday morning at John Pratt's house the deceased told him that he was coming over to the store the next morning, and take a stick or club and break his damned old neck, and that on Monday morning he (defendant) went over to the store to get some ice, and that he opened the door so as to let in light sufficient to see how to get the ice out of the icehouse, and that when he opened the door he saw the deceased, Lide, standing on John Pratt's north
Page 140
porch, facing the store, and that Lide immediately started towards him, and that when he saw him coming he went to the gun case and got his gun and set it down by the side of the door and looked and saw Lide was still coming; that he came right on in that direction and never stopped, and that when he got within about 30 yards of him defendant asked him if he was coming for peace or for war, and he refused to make any reply to him; that the deceased was looking right in his face, but never said a word; that he then picked his gun up, and, pointing it towards the deceased, called to him two or three times to halt, and he refused to do so, but come right on, looking defendant right in the face, looking angry, and came toward him like an old mad bull; that when he got within about 12 or 15 feet of defendant that he shot and killed him; that his gun was loaded with 7 1/2 chilled shot; that he hated it, and that he did it to save his own life; that Lide was a very dangerous man, and if he had waited until he got in reach of him, owing to his (defendant's) physical condition, that he would not have had any show in a contest with deceased." This testimony was admissible, and the court erred in excluding it. White's Ann. Code Cr. Proc. art. 791, is as follows: "When part of an act, declaration or conversation or writing is given in evidence by one party, the whole on the same subject may be inquired into by the other, as when a letter is read all other letters on the same subject between the same parties may be given. And when a detailed act, declaration, conversation or writing is given in evidence, any other act, declaration or writing which is necessary to make it fully understood or to explain the same may also be given in evidence." This precise question was raised, discussed, and settled in the case of Greene v. State, 17 Tex.App. 395. In this case, after quoting the above article, Judge Willson says: "This article expands the common-law rule with [53 Tex.Crim. 285] reference to such evidence. At common law, when a confession or admission is introduced in evidence against a party, such party is entitled to prove the whole of what he said on the subject at the time of making such confession or admission. 1 Greenleaf, Ev. §§ 201-218; Wharton, Criminal Ev. § 688. But the above-quoted article does not restrict the explanatory act, declaration, conversation, or writing to the time when the act, declaration, conversation, or writing sought to be explained occurred, but extends the rule so as to render such acts or statements admissible, if necessary to a full understanding, or to explain the acts or statements introduced in evidence by the adverse party, although the same may have transpired at a different time, and at a time so remote even as to not be admissible as res gestæ." After referring to the case of Shrivers v. State, 7 Tex. App. 450, which seemed to have ignored the provisions of the above-quoted article, the opinion then proceeds: "But in a case like this, where the statements offered are offered only in explanation of defendant's statements introduced in evidence against him by the state, we can find no warrant in the statute for thus limiting their admissibility. We are of opinion that under this article the statement of the defendant made before the inquest, if it be necessary to make his confession fully understood, or to explain the same, was admissible." This case has been frequently followed by this court, and the principle there stated is illustrated in the facts of many cases. See Harrison v. State, 20 Tex.App. 387, 54 Am. Rep. 529, Rainey v. State, 20 Tex.App. 455, Gaither v. State, 21 Tex.App. 528, 1 S.W. 456, and Bonnard v. State, 25 Tex.App. 173, 7 S.W. 862, 8 Am. St. Rep. 431, in which the case of Greene v. State is, in express terms, cited and approved. It has, however, been held that declarations and statements are not admissible in evidence to explain...
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