Bereal v. State

Citation225 S.W. 252,88 Tex. Cr. R. 138
Decision Date10 November 1920
Docket Number(No. 5939.)
PartiesBEREAL v. STATE.
CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas

Appeal from District Court, McLennan County; Richard I. Munroe, Judge.

Mike Bereal was convicted of murder and he appeals. Reversed and remanded.

Jno. B. McNamara, and Taylor & Forrester, both of Waco, for appellant.

Alvin M. Owsley, Asst. Atty. Gen., for the State.

LATTIMORE, J.

Appellant was convicted of murder in the district court of McLennan county, and his punishment fixed at eight years' confinement in the penitentiary.

In our view of this case, it must be reversed, because the trial court withdrew from the consideration of the jury, and instructed them not to consider a large amount of evidence introduced by the defense, tending to show undue intimacy between the wife of appellant and the deceased prior to the homicide. It appears from the record that appellant was originally permitted to place this evidence before the jury upon his promise to show that the same was known or had been communicated to him prior to the killing. After the testimony of both sides had closed, the state made the point that it had not been shown that the facts in said testimony had been communicated to appellant, and, the court being of like view, withdrew said testimony, and instructed the jury as above. This action of the court was duly excepted to.

The theory of the appellant was manslaughter at most, predicated on the fact that a short time before the homicide his wife had admitted to him that she had been intimate with deceased, and the evidence seems strongly to support appellant's theory. When a homicide occurs, and the theory of the defense is that same was committed as the result of passion, caused by insulting words or conduct of the deceased toward a female relative, it is necessarily true that it must be shown that it was known or communicated to the accused that such insult had been given; and it might appear that, there being testimony to the effect that he had been apprized of such insult, the truth or falsity of whether or not such insulting words or conduct had in fact occurred would not be material, and evidence thereof would not be admissible. This is not sound, for even though there be testimony to the effect that such insult was communicated to the accused, it is usually given by his witnesses —frequently an interested wife, sister, or other relative—and the issue is still before the jury as to the truth of the fact of such communication, to be decided by them from all the evidence in the case. If in fact it can be shown that the deceased was guilty of uttering the alleged insulting words, or that he indulged in the insulting conduct, such testimony materially strengthens the probable truth of the fact of the communication thereof to the accused, and is admissible as corroborative. Hill v. State, 52 Tex. Cr. R. 245, 106 S. W. 145; Fossett v. State, 41 Tex. Cr. R. 405, 55 S. W. 497; McAnear v. State, 43 Tex. Cr. R. 521, 67 S. W. 117; Davis v. State, 70 Tex. Cr. R. 37, 155 S. W. 549; Walker v. State, 70 Tex. Cr. R. 84, 156 S. W. 208. The authorities cited by the state as combating the soundness of this view will be found, upon close examination, not to justify such citation. In McVey v. State, 81 S. W. 740, there was no claim that the killing was because of insults to the daughter of the accused, and this court rightly held that an insulting statement of deceased toward said daughter, which...

To continue reading

Request your trial
9 cases
  • State v. Flory
    • United States
    • United States State Supreme Court of Wyoming
    • April 3, 1929
    ...... connection, of course, is as to what [40 Wyo. 207] was told. the defendant, not whether the facts which were told were. true. The Texas courts seem to hold that evidence of the. truth would be corroborative. Orange v. State, 47. Tex. Crim. 337, 83 S.W. 385; Bereal v. State, 88. Tex. Crim. 138, 225 S.W. 252; see State v. Foster, . 150 La. 971, 91 So. 411. See also People v. Barberi, . 149 N.Y. 256, 43 N.E. 635, 52 Am. St. Rep. 717, which case,. however, is distinguishable from this case, because in that. case the defendant herself experienced the ......
  • Smith v. State, 74-1219
    • United States
    • Court of Appeal of Florida (US)
    • May 30, 1975
    ...such facts were not shown to have come within the personal observation of the defendant.' 130 N.W. at 707. and in Bereal v. State, 88 Tex.Cr.R. 138, 225 S.W. 252 (1920) the court 'When a homicide occurs, and the theory of the defense is that same was committed as the result of passion, caus......
  • Reynolds v. State
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • February 20, 1924
    ...threat to the wife, upon which appellant claimed to act, and which bore directly upon the issue of self-defense. Bereal v. State, 88 Tex. Cr. R. 138, 225 S. W. 252; Powers v. State, 88 Tex. Cr. R. 457, 227 S. W. 671; 30 Corpus Juris, p. 241; Levy v. State, 28 Tex. App. 203, 12 S. W. 596, 19......
  • State v. Boston
    • United States
    • United States State Supreme Court of Iowa
    • October 19, 1943
    ...admissible in a homicide case to corroborate testimony that she communicated such fact to defendant before the killing. Bereal v. State, 88 Tex.Cr.R. 138, 225 S.W. 252. However, what we believe to be the weight of authority and the better reasoning support the ruling below. Bryan v. Commonw......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT