Alexander v. State

• Decision Date: 11 January 1899
• Citation: 49 S.W. 229
• Parties: ALEXANDER v. STATE.
• Court: Texas Court of Criminal Appeals

49 S.W. 229

ALEXANDER v. STATE.

Court of Criminal Appeals of Texas.

January 11, 1899.

Appeal from district court, Franklin county; J. M. Talbot, Judge.

Bill Alexander was convicted of murder in the second degree, and he appeals. Affirmed.

Todd & Glass, for appellant. Mann Trice, 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 15 years; hence this appeal.

The first bill of exceptions is as follows: "The state proposed to prove the name and age of the young lady (Miss Mitchell) about whom the evidence showed the wife of the defendant and Will Swanner had made statements to the effect that they had seen her kissing deceased, Will Willard. To the proving of her name and age, the defendant, by counsel, objected, because such evidence was immaterial and irrelevant, and was calculated to prejudice defendant in the minds of the jury. But the court overruled the defendant's objection, and admitted the testimony, to which ruling and action of the court defendant at the time excepted," etc. This bill leaves us utterly in the dark as to what proof the state in fact made as to the age of Miss Mitchell. For aught that we know, she may have been quite a young lady, or an old maid. At the outset, we are informed that her name was Miss Mitchell, but the bill does not show that this proof was made by the state. But, more than this, we are utterly at a loss to understand how proof of the name and age of a party about whom the charge of kissing is said to have been made could have prejudiced appellant. There was no objection urged as to the testimony in regard to the wife of defendant and his co-defendant, Will Swanner, having stated that they saw the deceased kissing a young lady. But the objection was merely in regard to the name and age of the young lady. This evidence does not appear to have been hearsay, irrelevant, or immaterial. On the contrary, it appears that, after the state had proved that the difficulty between defendant and Will Swanner and deceased grew out of statements made by the wives of defendant and Will Swanner, to the effect that they had seen deceased kiss a certain young lady, as a part of that matter it was competent to show who the young lady was.

The second bill of exceptions is as follows: "When Bill Alexander was on the stand as a witness in his own behalf on the trial of this case, the state's counsel, while cross-examining the defendant, asked and examined relative to the following matters: (1) Whether he did not tell Leander Crow, about half an hour after the difficulty, and at the place where it occurred, in reply to a statement there made by the said Crow to the effect that it was a cowardly affair, and Swanner would never have cut him (Crow), as follows: `Yes he would.' (2) Whether Swanner did not tell him that deceased had stopped him at his (deceased's) house, and cursed him (Swanner) and called him a liar. (3) Whether Swanner did not tell him that he (Swanner) had bought a new knife. (4) Whether he (defendant) did not tell one McGrew, the morning of the day of the difficulty, in effect, that, if Willard had said what he (defendant) had heard he said about defendant's wife, he and deceased could not live in the same country. To each and all of which questions and answers the defendant, by counsel, objected, upon the ground that these matters were new, and not germane or relevant to anything brought out in defendant's examination in chief, and were not legitimate cross-examination, but the state was making a witness of the defendant against himself, and seeking to compel him to give evidence against himself, independent of the matters about which he was examined in chief. But the court overruled the said objections, and required and compelled defendant to answer said questions, to which defendant excepted," etc. The bill shows that the state was permitted to cross-examine appellant relative to the following matters, and then follow, seriatim, from 1 to 4, inclusive, the matters about which the state was permitted to cross-examine the witness. But it is not stated what the answers of the witness were to said inquiries. To have been a good bill of exceptions, the answers of the witness to the inquiries should have been stated. We cannot help out the bill by presuming what the answers were. Moreover, the bill shows that certain grounds of objection were urged to said cross-examination, to wit, that the matters inquired about were new, and not germane nor relevant to anything brought out in defendant's examination in chief. But the grounds of objection stated do not constitute a certificate on the part of the judge that said grounds were true. The bill should have informed us, by a proper certificate of the judge that the appellant while on the stand had not been examined as to any matters contained in the cross-examination objected to; that is, either this course should have been pursued, or the examination in chief of appellant should have been stated, so that we might determine whether or not the questions asked were upon issues arising out of, and germane to, the examination in chief. Neither of these modes was followed, and we have in this bill merely the questions asked, and the grounds of objection urged. This, as we understand it, does not raise the issue presented by appellant in his assignment of errors, and in his brief on this question; that is, that, over his objection, the court permitted appellant to be made a witness against himself, which he insists is violative of section 10 of article 1 of our constitution. If this question, however, had been properly raised, we are inclined to the view that it would not have availed appellant. See Quintana v. State, 29 Tex. App. 401, 16 S. W. 258; Hutchins v. State, 33 Tex. Cr. R. 298, 26 S. W. 399. The doctrine contained in the Quintana Case was modified in Morales v. State (Tex. Cr. App.) 36 S. W. 435; but not in respect to the constitutional question involved. For other authorities, see People v. Tice (N. Y. App.) reported in 15 Lawy. Rep. Ann. 669, and note thereto on page 673 (s. c. 30 N. E. 494). There are some authorities holding that, where a defendant takes the stand in his own behalf, his cross-examination will be strictly confined to matters about which he has been examined in chief. Appellant cites us to the following: 1 Greenl. Ev. § 445; Underh. Cr. Ev. §§ 60, 220, 270; Railroad Co. v. Stimpson, 14 Pet. 461. But we believe that, under a constitution similar to ours on this subject, the weight of authority is in favor of the proposition that, where a defendant takes the stand on his own behalf, the state will not be restricted, by a rigid rule, on his cross-examination, to the mere examination of the witness as to matters inquired about in the examination in chief. Having become a witness on his own behalf, he may be cross-examined as to the entire case, although he may have testified on his examination in chief only to isolated matters connected with the offense charged against him.

Appellant, by bill of exceptions, also objected to remarks made by the prosecuting counsel in the closing argument, to the effect that he knew two of the state's witnesses, and that they were worthy and truthful boys. It appears from the bill that, on objection urged to these remarks, the court reprimanded counsel, and instructed the jury verbally to disregard said remarks and not consider the same. In the absence of any requested instruction on the subject, this action of the court was sufficient. In addition to this, however, the bill does not inform us that the two witnesses had testified to any facts that were material to the state.

In his motion for new trial, appellant raises a number of objections to the charge of the court. We have examined said charge carefully, and it occurs to us that the same is an admirable exposition of the law of the case, as applied to the facts proved. However, we will discuss such of the objections urged as we think call for discussion.

Appellant objected to the seventh paragraph of the court's charge on the ground that the court instructed the jury, "When an unlawful killing is established, the condition of the mind of the party killing, at the time, just before, and just after the killing, is an important consideration in determining the grade of the homicide," etc. Appellant complains that this charge is on the weight of the testimony. We cannot so regard it. It is merely an instruction to the jury to do exactly what it was their duty to do; that is, to consider all the testimony in the case,—before, at the time of, and subsequent to the killing,— in order to determine the state of mind of appellant at the time the killing occurred. It was neither a charge on the weight of the testimony, nor is the charge complained of, when considered in connection with that portion of the court's charge, any assumption on the part of the court that appellant was guilty of some grade of culpable homicide.

Appellant also complains of the twelfth, seventeenth, twenty-first, and twenty-second paragraphs of the court's charge, on the ground, as he urges, that by said charges the court authorized the jury to convict defendant, "if the offense was committed in pursuance of a common intent on the part of Will Swanner and the defendant, and in pursuance of a previously formed design, etc., but the court nowhere tells the jury what the character of such common intent and previously formed design must be; that is, that it must have been to take the life of Willard, or do him serious bodily harm." And, as contended by appellant, it was error to so define the common intent and design. By reference to paragraph 12 of the court's charge, it will be seen that same is a part of the court's charge on the law of principals. Paragraphs 11 and 12 embody the law on this subject, and it is in accordance with our statute...