Anderson v. State

• Decision Date: 10 April 1918
• Docket Number: (No. 4915.)
• Parties: ANDERSON v. STATE.
• Court: Texas Court of Criminal Appeals

Page 944

202 S.W. 944

ANDERSON v. STATE.

(No. 4915.)

Court of Criminal Appeals of Texas.

April 10, 1918.

Appeal from District Court, Taylor County; Joe Burkett, Judge.

R. D. Anderson was convicted of manslaughter, and he appeals. Reversed.

Harry Tom King, of Abilene, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.

MORROW, J.

Appellant under indictment for murder, was convicted of manslaughter.

According to the state's theory, appellant shot and killed deceased under circumstances which constituted murder. Appellant claims to have acted in self-defense. One of his eyewitnesses was his stepson, Emmett Burns. This witness was present and testified in substance that deceased came to the restaurant where he was killed armed with a pistol, that appellant at the time immediately before the shooting was behind a partition door-jamb with his head sticking out and with a target rifle in his hand which was pointed down toward the floor; that after some words were exchanged deceased fired two shots at appellant while he was in the position described; and that appellant fired one shot which witness did not see but heard, he at the time being in the act of leaving the house. Appellant's testimony was substantially to the same effect, and he was corroborated by some other testimony.

The wife of deceased, introduced as a witness for the state, testified that on the morning the homicide occurred, after it took place some distance from the scene thereof, in the absence of appellant she had a conversation with the witness Burns in which he told her that appellant shot deceased, and further said "that we tried to get him not to do it." It is not claimed that this is res gestæ. The court in explaining the bill says:

"Defendant claimed self-defense, and Emmett Burns' testimony also tended to show self-defense on the trial. This was admitted to refute that theory."

The objection that the evidence is hearsay is, we think, well taken. It might have been used to impeach the witness Burns if the predicate therefor had been laid. This, however, was not done. If it had been used as impeaching testimony, the court would have been required to limit it to that purpose, namely, as bearing upon the credibility of Burns. It appears to have been used as original testimony, contradicting the testimony of Burns and the theory of self-defense. The testimony of Burns was not only material upon this issue and in conflict with the statement proved and attributed to him, but it tended to contradict other witnesses who supported the appellant's theory. We regard its admission as prejudicial error.

Some hours before the homicide took place the deceased and appellant had a quarrel and were about to fight, and were separated by friends, among them a witness by the name of Thomas. This witness was a negro man and brother-in-law of deceased. He was not present at the time the homicide took place. He was called by the state to relate the incidents of the prior encounter. It seems that some time after the homicide and before the trial, this witness had made a statement in writing in the presence of one described as Mr. Graham, in which writing he detailed his version of the first difficulty; and it appears that in this writing there were statements of the witness in which he claimed that immediately after the prior encounter appellant had made threats to kill deceased. In giving his testimony he failed to recount this fact; that is, he failed to testify to the threats and said in effect that he recollected nothing that was said by the appellant on the occasion mentioned. The state's attorney and the trial judge, on his direct examination, interrogated him, asking him certain leading questions, after proving by him that he had made the written statement mentioned. As we understand, the statement was produced during this examination which was in the presence of the jury, and alternately the district attorney and the judge used it in interrogating the witness. The bill states that the writing was read, but it does not appear copied in the bill or the statement of facts. Responding to this method of examination, and having his memory thus refreshed, the witness said that he did remember some things that the appellant said; among others, that he begged for his gun and that, when it was refused him, said he had another gun at home, and that Cummings, deceased, had to go home, that he (appellant) would get him. He said to Cummings, "I will get you." After the cross-examination by appellant's counsel, and after state's counsel had conducted his redirect examination, the bill states that the following took place:

"The court trying the case again took the witness from the district attorney and read from a paper held in his hand, and asked witness if he remembered this statement: `Before he left the house he said he would kill Cummings if it was the last thing he ever done.' All of this in the presence of the jury. And the court thereupon asked the witness if he had made this statement to Mr. Graham, and the witness says: `I remember that. I am sure that was said.' The court then read as follows from the paper: `When he came back, he went in behind us, and he still said he was going to kill Cummings.' The court asked the witness if that was so, and the witness replied, `That is so.' And the witness thereupon further testified in response to the court: `I did not testify to that while ago because I did not think of it. I think that was everything that was said. That is all I can remember. That is why I did not tell you any more. I just told you all I could remember.'"

Various objections are urged to this proceeding. The court qualifies the bill with the statement that the witness appeared to be confused and excited and did not seem to understand many of the simplest questions. It has often been declared within the sound discretion of the trial judge to permit leading questions to be asked to a hostile, unwilling, or reluctant witness. Mann v. State, 44 Tex. 642, and other cases in Branch's An. P. C. § 158. This discretion has been held to cover a case in which a child laboring under excitement was asked such questions. Campbell v. State, 62 Tex. Cr. R. 563, 138 S. W. 607. There doubtless would arise other instances in which the application of the principle would be justified. In the present case the witness was a grown-up man, was related to the deceased, and made a written statement in advance which apparently was voluntarily made and which was in possession of the state. He does not therefore seem to have been hostile, unwilling, or reluctant. It is doubtful whether the rule should be enlarged to embrace an instance where a full-grown man, not suffering from any shown disability, who claimed that he was an eyewitness to a recent transaction, and who was unable to relate the incidents upon the trial in the same manner or in the same substance that he had previously related them, and who in his efforts to do so became confused and excited. If it be conceded that the circumstances were such as to authorize leading questions, the question occurs whether, in permitting the proceeding that is disclosed by the record in the present instance, the court was exercising sound judicial discretion. The effect of the proceeding was to get before the jury the fact that the witness soon after the homicide signed a written statement in which he had asserted that appellant had made serious threats against the life of deceased, and to induce him by leading questions, prompted by this written statement, to testify that these threats were in fact made. As disclosed in the bill, the effect of his testimony, before this proceeding, was that he had seen the previous difficulty but remembered no threats.

In Spangler v. State, 41 Tex. Cr. R. 432, 55 S. W. 329, the court dealing with a similar question used the following language:

"Charley Spangler was a witness for the state, and he had testified to no fact detrimental to the state, and the state would not have been authorized to contradict him by showing that he had testified to an additional fact before the grand jury. It could only contradict him where he had testified to some affirmative fact detrimental to the state, and then only where the attorney for the state had been taken by surprise at the testimony of his own witness. So far as we are able to discover from the bill here, the witness did not remember the additional fact; and the state was permitted, over the objections of appellant, to parade the witness' testimony, taken in the grand jury room, before the petit jury trying the case."

This case was reversed on other grounds, the court condemning the practice, but stating that, inasmuch as the witness did give the testimony when his memory was refreshed in the manner stated, it would not be held reversible.

In Brown's Case, 42 Tex. Cr. R. 185, 58 S. W. 133, the court expressed itself with reference to a similar question as follows:

"The examination of the witness Melvin Cude was unauthorized. Testimony taken before the grand jury is admissible solely where the truth or falsity of the witness is in question. In Spangler's Case, 41 Tex. Cr. R. 424 , while we held it was not reversible error to use the grand jury testimony for the purpose of refreshing a witness' recollection, still...