Ball v. State

• Decision Date: 29 May 1929
• Docket Number: (No. 12544.)
• Citation: 18 S.W.2d 641
• Parties: BALL v. STATE.
• Court: Texas Court of Criminal Appeals

18 S.W.2d 641

BALL v. STATE.

(No. 12544.)

Court of Criminal Appeals of Texas.

May 29, 1929.

Rehearing Denied June 26, 1929.

Commissioners' Decision.

Appeal from District Court, Hill County; Walter L. Wray, Judge.

R. C. Ball was convicted of murder, and he appeals. Affirmed.

Otis Rogers, of Ft. Worth, for appellant.

A. A. Dawson, State's Atty., of Austin, for the State.

CHRISTIAN, J.

The offense is murder; the punishment confinement in the penitentiary for 10 years.

Appellant and deceased, Earl Adams, with others had gone to the city of West where appellant had purchased a gallon of whisky which he and deceased brought back to Hillsboro in an automobile. After reaching Hillsboro the parties went to the room of deceased. Appellant accused deceased of stealing his money from him. According to the state's testimony, deceased cursed appellant and appellant shot and killed him. Appellant admitted that he killed deceased. He testified that deceased was preparing to attack him at the time, and that he believed that his life was in danger. He said that deceased reached for his pocket to get a knife and that he tried to shoot deceased in the shoulder in order to stop him. The testimony of the state showed that deceased made no demonstration toward appellant.

It is disclosed by bill of exception No. 4 that appellant elicited from state's witness Clapper that deceased and appellant had a conversation on the trip from West to Hillsboro in which deceased declared that he had killed a man, had served a term in the federal penitentiary, and that he (deceased) was a bad and dangerous man. On redirect examination the state asked the witness the following question: "What if anything did the defendant say about what his business was when this conversation was taking place down there on the way back from West?" Appellant objected to the question as "being improper, irrelevant and prejudicial and as having no bearing whatever on the trial of this case." It is not apparent from the bill of exception that the question called for an answer that would have been obviously inadmissible for any purpose. Mr. Branch, in his Annotated Penal Code of Texas, § 208, states the rule as follows: "An objection to evidence admitted that it was immaterial and irrelevant and prejudicial to the defendant is too general to be considered, unless obviously the evidence would not be admissible for any purpose."

The objection was overruled, and the witness answered that he thought appellant said that he was in the whisky business. No motion was made to withdraw the answer of the witness from the consideration of the jury. It is appellant's contention that the state was permitted to prove an extraneous offense, and that such proof was not authorized under any of the exceptions to the general rule prohibiting proof of extraneous offenses. If the bill of exception was sufficient to present the question, we would be inclined to hold that, if the court erroneously admitted the testimony complained of — and we do not concede that there was error in admitting it, as it is not clear that the provisions of article 728, C. C. P., are not applicable — the fact that appellant's own testimony and that of other witnesses showed that appellant was transporting liquor in violation of the law would render harmless the reception of the testimony in question.

As shown by bill of exception No. 7 appellant asked the witness Andy Sullivan the following question: "Were you acquainted with the reputation of Earl Adams, the deceased, as a peaceable, law-abiding citizen?" The state objected to the question on the ground that it was not a proper legal question and on the further ground that the matter sought to be elicited was irrelevant and immaterial. We do not understand that the general reputation of deceased for being a law-abiding citizen was in issue. The bill fails to make clear the purpose of appellant in offering the testimony in question. It is the rule that, where self-defense is an issue, the appellant may prove the general character for violence of his adversary for the purpose of showing who probably began the difficulty. Such proof is admissible whether threats are involved or not. Branch's Annotated Penal Code, § 2095; Daniels v. State, 58 Tex. Cr. R. 569, 126 S. W. 1153. Again, where the defendant accused of murder seeks to justify himself on the ground of threats against his own life, he may be permitted to introduce evidence of such threats, and, where proof of threats of the character...