Benson v. State

• Decision Date: 24 April 1907
• Citation: 103 S.W. 911
• Parties: BENSON v. STATE.
• Court: Texas Court of Criminal Appeals

103 S.W. 911

BENSON v. STATE.

Court of Criminal Appeals of Texas.

April 24, 1907.

On Rehearing, June 19, 1907.

Appeal from District Court, Bexar County; Edward Dwyer, Judge.

Willie Benson was convicted of murder in the first degree, and appeals. Reversed and remanded.

W. N. Camp and C. H. Terrell, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of murder in the first degree, and his punishment assessed at death, from which judgment he prosecutes this appeal.

Briefly stated, the circumstances show that appellant and deceased were negroes, and on the night in question, which was about the 4th of September, 1906, both had gone out to one of the parks in San Antonio, and were returning to the city on the street car. Before taking the car, and while still at the park, a wordy altercation occurred between appellant and a negro woman who was in the company of deceased. After all the parties got on the car this quarrel was resumed. The testimony of the state's witnesses tends to show: That appellant was the aggressor, and was insulting in his remarks to the sister-in-law of the deceased. Deceased, while the quarrel was going on, came from the rear toward the front of the car where appellant and his sister-in-law were and interfered. He told appellant in substance that he should not insult his sister-in-law, at which appellant abused him and told him he would see him (deceased) later. That when the car arrived down town all the parties got off. In getting off appellant shoved the sister-in-law of deceased off the step, and as soon as he got off denounced the deceased and drew his pistol and shot three times. At the first shot deceased fell, and then appellant fired two other shots in rapid succession.

Appellant's testimony tended to show: That in the first quarrel between appellant and deceased's sister-in-law the woman was the aggressor in the quarrel, and that deceased interfered with a knife in his hand and threatened appellant, and told him in effect if he wanted anything to get off the car then and settle it. When they got to the point where the parties alighted from the car, after they started off, deceased turned and walked back towards appellant a few steps. Appellant, who was standing on the sidewalk, apprehending danger from an attack by deceased, shot him. This is a sufficient statement of the case in order to discuss the assignments of error.

We do not deem it necessary to discuss the assignment of appellant with reference to the stenographic report of the testimony in the case. If it be conceded that appellant had a right to have the stenographic report, we do not see that he suffered any injury so far as the preparation of the motion for a new trial is concerned, as it appears to have been prepared carefully and covering all the necessary points.

We do not believe that the court erred in overruling the motion for a new trial based on the act of the court in regard to overruling the motion for continuance. The state's witness Jefferson, it appears, on cross-examination, stated in answer to a question by appellant that he did not take a knife off of the body of the deceased, and appellant says he wanted the witness Powers in order to prove by him that Jefferson told him that he did take a knife off of the deceased. This, at most, would be merely impeaching testimony, and a motion for a new trial is not ordinarily granted on account of the absence of such testimony. Besides, we fail to find in the record any bill of exceptions to the action of the court in overruling the motion for a new trial. In this connection, we notice on page 327 of the stenographer's report what is entitled "Appellant's Bill of Exceptions No. 10." It appears counsel for defendant made a statement to the court that, before announcing "Ready for Trial," he had a motion for continuance in his pocket on the ground of the absence of Will Powers, and he told Mr. Baker he would present it, and that Mr. Baker agreed to admit the testimony which would be, if he was here, so counsel for defendant understood, "that Robert Jefferson told him he took the knife off of the body of the dead man at that time." Mr. Baker agreed to admit that. "The Court: The court didn't know anything about it. Mr. Baker: I said there is no use admitting anything, because he was a fugitive from justice. The Court: And I understood you to say if you could only get Arthur Parrish you would go to trial, and there was no understanding, whatever, and I told you if you didn't get Parrish you could withdraw your announcement of ready for trial, and I would entertain your motion. Mr. Terrell: We want to impeach Jefferson's testimony, and asked him if he didn't take the knife off the body of the dead man at that time. And we have heard the motion for continuance. The Court: I can't help that. Mr. Terrell: We will ask time for writing another motion for continuance. The Court: You can consider it as in, and I will overrule it. Mr. Baker: Deputy Sheriff Goforth informs me he remembers the conversation, and that he remembers that I would not admit the testimony of Will Powers. The Court: It must have been a misapprehension. You didn't state what the testimony was to me at all, and, gentlemen, you will consider the motion refused to withdraw your announcement, and all I said here is my reason for not granting it." Now, we cannot make out of this a motion for continuance and the overruling of same. Indeed, we would furthermore make this observation with reference to a number of bills of exception taken to testimony introduced or rejected. The exceptions taken in the stenographer's report appear to be in the shape of questions and answers, and at least a number of exceptions are in such a confused state as to leave it doubtful as to the nature of the exception. We have heretofore stated that we would not look through a record where the exceptions are scattered over a number of pages and not taken in such condensed and logical shape as to intelligently present the evidence excepted to and the ground for objection to same, and such we find to be the condition as to some of the exceptions claimed to have been taken in this record. It is decidedly the better practice to take separate bills of exception to the rejection or admission of testimony, or if these exceptions are taken in the statement of facts they must be in such condensed and logical form as to present in an intelligent way the error complained of. See Stephens v. State (Tex. Cr. R.) 93 S. W. 545.

We note the action of the court with reference to the cross-examination of the witness Sarah Jones is assigned as error. It is insisted that this witness was a state's witness, and that the court permitted the district attorney to cross-examine her on the alleged ground of surprise on the part of the district attorney at her testimony. On pages 167, 168 of the stenographer's report this matter is presented, and it appears therefrom that the court permitted the district attorney to cross-examine said witness, and following this it appears the district attorney asked the witness some questions which may be considered in the nature of a cross-examination of said witness, but it is difficult to eliminate or determine what are and what are not leading questions. The right to cross-examine, or to ask leading questions of one's own witness, is a matter within the discretion of the court when it appears the witness is hostile to the party calling such witness. The bill should show enough of the environments to point out the error of the court, and we do not believe this bill does so. In this connection we note that some exception was taken to the introduction of the inquest testimony of this witness, or at least using this inquest testimony by the state in the examination of said witness. Counsel for defendant objected, it seems, to further examination of the witness by the district attorney, claiming that there was no variance in the testimony of the witness at this trial and the testimony as contained in the statement of the witness at the inquest trial. The court stated: "But the district attorney is going on the theory that she did not testify to these other things at the inquest," and appellant excepted to this. The question was then asked, "Why didn't you tell what you saw?" to which the witness replied: "I told you what you asked me, and if you had asked me if I saw Miller in any position, I would have told you," and then other questions and answers followed. Now, it is impossible to determine what was excepted to, or how the exception was made or taken. In this connection we note that counsel for defendant objected to the introduction of certain inquest statements on the ground that the witnesses whom the state endeavored to impeach were not asked the same questions in the inquest proceedings by the district attorney as they were asked upon this trial, and, further, because the statements as testified to at the inquest proceedings had not been denied under oath by any one. This appears to apply to the inquest testimony of several witnesses, including Sarah Jones. We are not informed what questions were asked by the district attorney, and we do not know whether a predicate was laid for impeachment or not; nor are we informed what oath was referred to when it was said: "The testimony at the inquest proceedings had not been denied under oath by any one." Matters of this character should be definitely pointed out so that this court may know what it is expected to review or revise. Inquest proceedings can be referred to and used under certain conditions. Witnesses may be impeached by such testimony under certain conditions; and, if those conditions do not exist, which authorize the use of this testimony, bills of exception must definitely and intelligently point out the matter complained of, and why it was complained of. We notice in appellant's brief it is stated: "A...