Bonnard v. State

• Decision Date: 07 March 1888
• Citation: 7 S.W. 862
• Parties: BONNARD v. STATE.
• Court: Texas Court of Appeals

7 S.W. 862

BONNARD v. STATE.

Court of Appeals of Texas.

March 7, 1888.

Appeal from district court Johnson county; J. M. HALL, Judge.

Indictment against Harve Bernard for murder by shooting one Ben Shultz. There was a conviction of murder in the second degree, and from a sentence of seven years in the penitentiary defendant appeals.

Poindexter & Padelford, for appellant. Asst. Atty. Gen. Davidson, for the State.

WHITE, P. J.

This appeal is from a conviction for murder of the second degree. Twenty errors are assigned for a reversal, and they relate (1) to exclusion of evidence; (2) to errors in the charge of the court to the jury; (3) to the refusal of special instructions requested by defendant; (4) to the insufficiency of the evidence to support the verdict; and (5) to the overruling of defendant's motion for new trial. We do not propose to discuss all of the errors assigned, but will select those which are, in our opinion, the most important.

It was error to exclude the testimony of the witness Joe Bedwell, as shown by the first bill of exceptions, to the effect that on the night before the shooting a difficulty occurred at a party at the house of one Page, between the principal state's witness, Ike Moore, and defendant, in which the witness Moore had followed the defendant out of the gate, and, when defendant told him to stop following him, turned away with the remark, "I will see you again, and shoot a hole in you a yellow dog can jump through. I am a yard wide, all wool, and hard to curry." This evidence was admissible to show the motives, animus, and extent of the feelings of the witness towards the defendant. "The motives which operate upon the mind of a witness when he testifies are never regarded as immaterial or collateral matters." Gaines v. Com., 50 Pa. St. 319-326. As to hostility, interest, or bias against a defendant, a witness may be contradicted, if he denies them, by evidence of his own statements, or other implicatory facts. "The same rule applies to questions as to quarrels between the witness and the party against whom he is called." Whart. Crim. Ev. § 485; 1 Greenl. Ev. (13th Ed.) 455; Hart v. State, 15 Tex. App. 202; Favors v. State, 20 Tex. App. 156; Rosborough v. State, 21 Tex. App. 672. See, also, upon this point, Newcomb v. State, 37 Miss. 383; and also the case of Kent v. State, (Ohio,) reported in full in 6 Crim. Law Mag. 520, in which the cases are reviewed, and the doctrine upon the subject elaborately discussed. It is shown, by the evidence, that the witness Moore had been a party to, and associated with, the deceased in all the troubles and difficulties between the latter and the defendant, and the extent to which he was biased was legitimate matter to be considered by the jury in determining the credibility of his testimony.

Defendant's seventh bill of exceptions was taken to the exclusion of his statements to his brother, John Bonnard, on the night of, and when he first met his said brother after, the difficulty, in which he detailed all the circumstances of the difficulty fully, and in which he also explained to his brother the fact that he had related the circumstances differently to the young ladies at Mrs. Welch's immediately upon his return from the scene of the difficulty, and told him the reason which induced and influenced him in making the statement, as he did make it, to those young ladies. The prosecution had proved by these young ladies what defendant's statements to them had been, and the defense proposed to prove the statements made to his brother, in order to explain these statements, under the statutory rule that "when a detailed act, declaration, conversation, or writing is given in evidence, any other act, declaration, or writing which is necessary to make it understood, or to explain the same, may also be given in evidence." Code Crim. Proc. art. 751. We are of opinion that the bill of exceptions brings the excluded evidence directly within the purview of the rule as the same has heretofore been construed by this court in Greene's Case, 17 Tex. App. 395; Harrison's Case, 20 Tex. App. 387; Rainey's Case, Id. 455; Gaither's Case, 21 Tex. App. 528, 1 S. W. Rep. 456; and that it was error to exclude the testimony. This case is not analogous, in this particular, to Gibson's Case, 23 Tex. App. 414 and 5 S. W. Rep. 314.

Appellant having been convicted of murder in the second degree, this eliminates from discussion all questions as to the correctness of the charge of the court as to murder of the first degree. As to murder of the second degree, manslaughter, self-defense, etc.,...