Attaway v. State

• Citation: 55 S.W. 45
• Parties: ATTAWAY v. STATE.
• Decision Date: 17 January 1900
• Court: Texas Court of Criminal Appeals

55 S.W. 45

ATTAWAY v. STATE.

Court of Criminal Appeals of Texas.

January 17, 1900.

Appeal from district court, Waller county; Wells Thompson, Judge.

T. T. Attaway, convicted of murder in the second degree, appeals. Reversed.

R. E. Hanney, 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 five years, and he prosecutes this appeal.

In appellant's first and second bills of exception he raises the question as to the admissibility of testimony concerning another offense charged against him. The state was permitted to prove by witness Will Williams that he was present at an interview between C. C. Carter, district attorney of Montgomery county, Tex., and deceased, Harry Alford, in regard to what he (Alford) would testify in a case then pending against the said Attaway for theft of a beef, and he was permitted to testify that on that occasion he (Alford) and defendant were together, and saw the beef which was afterwards said to be the stolen animal; that defendant asked Alford who gave the TU brand which was on said beef, and Alford replied, "Frank Williford," who lived in Houston, and that he owned the beef. Defendant then and there stated that when the beef got fat he intended to kill it, and it was the same beef defendant was charged with stealing. Defendant excepted to this testimony on the ground that it was hearsay, irrelevant, and prejudicial to defendant, and on the further ground that it was an ex parte statement, made to a third person, in the absence of defendant, regarding a case for which he was not then being tried. The court explained this bill by stating that at the time, and immediately after the court admitted the testimony, counsel for defendant stated he would ask to be allowed to prove by other witnesses what the said Alford had said about the cattle-theft case, and counsel did so with the consent of the court. And the state was further permitted to prove by Isaac Jackson that he had a conversation with Alford on another occasion, and that he told him substantially the same thing. The same objections were urged to the admission of this testimony, and the court appended the same explanation. Appellant was on trial charged with the murder of Harry Alford, and the theory of the state was that the motive actuating him in the homicide was because deceased, Alford, was a witness against him in the cattle-theft case. Unquestionably, it was competent for the state to prove by legal testimony that this was the motive for the homicide. Kunde v. State, 22 Tex. App. 65, 3 S. W. 325; Hudson v. State, 28 Tex. App. 328, 13 S. W. 388. But the state failed to connect appellant with these conversations; that is, there was no testimony showing that appellant knew the nature and character of the testimony of the deceased against him in the cattle-theft case. He may have known, and doubtless did know, that deceased was a witness against him in that case; and it may have been competent for the state to prove that fact. But, in the absence of some knowledge on the part of defendant that he knew the nature and character of deceased's testimony against him, or that he knew what deceased had told the district attorney or Jackson, we do not believe the testimony here complained of was admissible. The explanation of the court by no means renders the testimony admissible. He merely showed that, after he had admitted the testimony, over appellant's objection, his counsel then insisted on proving what the said Alford had said about the cattle-theft case. Of course, after illegal testimony was admitted, defendant could but make the best of the situation, and then offer other testimony, if he had it, and rebut or destroy the effect of the illegal testimony. What we have said above disposes of appellant's three bills of exception with reference to the argument of the district attorney, C. L. Carter.

The next bill of exceptions is to the argument of the district attorney in his closing speech, stating that the deceased, Harry Alford, had a pistol on a certain occasion, as testified to by defendant John Attaway. Appellant objected to this statement, because Attaway had not testified, and there was no testimony suggesting, that deceased had a pistol on the occasion alluded to. When this was made to appear, the court should have promptly excluded the statement, and admonished the district attorney to keep within the record.

Appellant, in his motion for new trial, excepted to the charge of the court on manslaughter. We have examined the charge carefully, and, in our opinion, appellant's objections thereto are well taken. To present this matter clearly, we will state the respective theories of the state and def...