Adams v. State

• Decision Date: 23 November 1904
• Citation: 84 S.W. 231
• Parties: ADAMS v. STATE.
• Court: Texas Court of Criminal Appeals

Page 231

84 S.W. 231

ADAMS v. STATE.

Court of Criminal Appeals of Texas.

November 23, 1904.

On Rehearing, December 20, 1904.

Appeal from District Court, Montgomery County; L. B. Hightower, Judge.

J. H. Adams was convicted of murder in the second degree, and appeals. Reversed.

Dean, Humphrey & Powell, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

BROOKS, J.

Appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of five years.

Bill No. 1 complains that appellant placed the witness Robert Pyle upon the stand, and he testified that he knew defendant and deceased, and that a short while before the homicide deceased had stated to witness that he intended to kill the damn scoundrel Jim Adams (defendant); and defendant proposed to prove by said witness that deceased stated that defendant had informed Bill Bryan of a statement which deceased had made concerning Bryan's wife; that deceased stated that what defendant had reported to Bryan that he had said about Bryan's wife was true, but that it had caused him trouble, and for that he expected to kill defendant. Defendant, to elicit said facts from said witness, in connection with and explanatory of the threats about which the witness had testified, asked witness, while upon the stand, the following question: "What did deceased say in connection with and preliminary to the threat about which you have testified, and what explanation, if any, did deceased make of why he intended to kill defendant?" In answer to this question witness would have stated "that deceased told him immediately before making the threat about which he had testified, and in connection therewith, that deceased referred to some trouble that he had had with Bryan and defendant, Adams, and others, and mentioned a report that defendant had made to Bryan of a statement which deceased had made to defendant concerning Bryan's wife, and that defendant had made a true and correct report of what he had said about Bryan's wife." This bill has the following explanation: "That there was no objection made to the proof of the threat, to wit, that deceased intended to kill the damn scoundrel (defendant), but did object to what defendant had told one Bryan concerning reputed remark of deceased as to Bryan's wife, because irrelevant, immaterial, and involved the right of other issues wholly foreign to this case, and was evidently offered to prejudice the state's case." The fact that deceased said that what defendant had stated was true does not throw any light upon the threat, or in any manner explain the threat, but, as the learned trial court seems to indicate, would be injecting into the case an issue foreign to any issue in the case. The declaration of deceased that he had made derogatory remarks of the wife, and defendant had reported said remarks to the husband, and for that reason he expected to kill defendant, is a germane issue and threat in the trial of this homicide. But the question as to whether or not the report was true or false as made by defendant cannot, in the nature of things, affect this case. The declarations show the animus of deceased towards defendant in a pertinent way, disassociated from his opinion as to the correctness of the declaration by defendant. We cannot see in what way appellant was harmed by the exclusion of this testimony.

Bill No. 2 complains of the argument of the county attorney to the jury, and the third bill is with reference to the argument of the district attorney. Under the qualifications of the court to the bills, and the fact that defendant did not ask any special charge instructing the jury to disregard said remarks, we cannot see how the remarks injured appellant.

The fourth bill complains that while the district attorney was making his speech to the jury, among other things he stated: "`There is nothing at all in this contention of insult to defendant's wife. This is a trumped-up defense. I believe that this defendant is guilty of murder, and murder in the first degree,' to which statement defendant then and there in open court excepted, because improper, prejudicial to defendant, because expressing an opinion to the jury as to the guilt or innocence of defendant." The district attorney appends this explanation to the bill: "I agree to this bill, with this statement: that no objection was urged in my presence and hearing to the above remarks; that no request was made in my presence and hearing that said remarks be diregarded by the jury, and no written request was made of the court to charge the jury not to regard such remarks; and, if any exception at all was made, it was quietly done, to the court, and not within my hearing or knowledge." The court approves the bill, with this explanation: "Approved, with the explanation of the district attorney, as part of this bill. Mr. Dean, counsel for defendant, did except to the remarks of the district attorney as quoted in this bill, but did so in an undertone to the court, stating at the time he excepted that his reason for making the exception to the court in such a manner was that he did not wish to disturb Mr. McCall in his argument before the jury." The statement of the district attorney, disassociated from the explanation of himself and trial court, does not occur to us to be prejudicial to the rights of appellant. As we understand, he is merely stating a conclusion drawn and deduced by him from the evidence produced upon the trial. But we desire to animadvert some upon the statement contained in the explanation that the exception was not made in the presence and hearing of the district attorney, and the reason given by appellant's counsel for not doing so was that he might not be disturbed in his argument. It is proper that exceptions to improper argument, or argument deemed improper, be made to the court; and it is immaterial whether state's counsel hears the objection or not. The objection is addressed exclusively to the court, and it is the...