Cecil v. State

• Citation: 72 S.W. 197
• Parties: CECIL v. STATE.
• Decision Date: 11 February 1903
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 197

72 S.W. 197

CECIL v. STATE.

Court of Criminal Appeals of Texas.

February 11, 1903.

Appeal from district court, Dallas county; Chas. F. Clint, Judge.

Murray Cecil was convicted of murder, and appeals. Reversed.

Robt. B. Seay, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of 50 years; hence this appeal.

It appears from the record that deceased, Joe Gwinn, and another white man were together in the city of Dallas on the night of the homicide. They met appellant Murray Cecil and Berry Blankenship, two negroes. The parties drank together a number of times, and all of them seemed to be more or less under the influence of liquor. During the time, Berry Blankenship gave deceased $3 to keep for him, in order to buy his wife a pair of shoes. Subsequently it seems that a return of this money was desired, and appellant insisted on the deceased giving it up, and the difficulty occurred in regard to this matter. The homicide occurred on the street at night; deceased being stabbed with a knife. The testimony of the state tended to show that Murray Cecil alone did the stabbing. Defendant's theory was that Berry Blankenship did the stabbing, and he introduced some testimony tending to show this. This is a sufficient statement of the facts to present the errors assigned.

In the first bill of exceptions, appellant excepts to the testimony of a number of witnesses. We think the testimony of Brooks to the effect that "I know Mr. Joe Gwinn, and I used to work for him," was admissible; at least, it could not have injured appellant. The testimony of Stampley, to the effect that, a short time after the killing, he heard Brooks say that it was done by a man by the name of Murray, is objected to. This testimony, as explained by the court, was admissible, inasmuch as appellant showed that Brooks said after the killing that he did not know who it was that did it; and this testimony was in rebuttal and corroboration of Brooks' evidence. We also think it was permissible to show by the witness Hearst that the man he saw run by the corner of Pearl and Elm streets near the place of the homicide was not Berry Blankenship, it being shown by other testimony that the person who stabbed deceased ran by there; and it being claimed by appellant that Berry Blankenship did the killing, it was legitimate to show that this person was not Blankenship, because the guilt or innocence of Blankenship was a legitimate issue, and it was competent for the state to introduce any legal testimony showing that Berry Blankenship was not the party who killed deceased. We also think it was competent for the state to show the movements of Berry Blankenship during that night, the next day, and subsequent to the homicide. But it was not competent for the state to introduce in evidence some act or conduct of some third party, indicating to the jury his opinion as to the guilt or innocence of Berry Blankenship. And so it was not competent to prove, as was done by Henry Jacoby, that he did not arrest Berry Blankenship for said offense the next day or the day thereafter. This was an indirect method of getting before the jury the opinion of said officer as to the guilt or innocence of said Blankenship.

Nor was it competent for the state to introduce in evidence the motion to dismiss the case against Blankenship by the county...