Bibb v. State

• Decision Date: 04 June 1919
• Docket Number: (No. 5309.)
• Citation: Bibb v. State, 215 S.W. 312, 86 Tex. Cr. R. 112 (Tex. Crim. App. 1919)
• Parties: BIBB v. STATE.
• Court: Texas Court of Criminal Appeals

215 S.W. 312

BIBB v. STATE.

(No. 5309.)

Court of Criminal Appeals of Texas.

June 4, 1919.

On Appellant's Motion for Rehearing, October 29, 1919.

Appeal from District Court, Tom Green County; C. E. Dubois, Judge.

M. H. Bibb was convicted of murder, and appeals. Affirmed.

Anderson & Upton, of San Angelo, for appellant.

J. A. Thomas, Dist. Atty., of San Angelo, and E. A. Berry, Asst. Atty. Gen., for the State.

LATTIMORE, J.

In this case appellant was given a life sentence for murder, in the district court of Tom Green county.

This is the second appeal. See 205 S. W. 135. The facts will appear in the opinion. The first ground of error urged is to proof of the bad reputation for chastity of appellant's wife. Two objections are presented: First, that appellant did not make the reputation of his wife an issue, and the state cannot; second, that the evidence was too remote in point of time.

Appellant's theory of the case, as presented in his brief, is that under the evidence he could be guilty of no higher degree of culpable homicide than manslaughter, and he further contends that the evidence raising the issue of manslaughter was introduced by the state, and that in such case the state is bound thereby, and is not entitled to ask for a conviction of more than manslaughter, and that the state is in no event authorized to introduce the bad reputation of the wife in order to rebut and overcome a theory thus raised by its own evidence. A proper determination of these matters depends upon the facts that appear in the record. The first witness for the state, Mr. Sheppard, lived near the scene of the killing, heard the shots, went in that direction, met appellant leading a woman and carrying a double-barreled shotgun, went on to the body of deceased, which was lying between the sidewalk and a large billboard which stood near, went back from the scene of the killing, and met appellant, who told him that he did the shooting, etc. There was not a word in the direct testimony of this witness suggesting the theory of manslaughter, or that the killing was in any wise from a cause relating to the appellant's wife or any other female relative; but, at once, upon cross-examination, this witness was asked by appellant and stated that when he first met appellant he asked, "What is the matter out here?" and that appellant replied, "I have had a little trouble with a fellow—he has broke up my family—broke it up twice, but he will never do it again," and that appellant told the witness that the woman was his wife.

Witness Grayson for the state on direct examination made no mention of the fact of appellant's wife figuring in the case; these facts being brought out on cross-examination by appellant. Likewise Sheriff Allen for the state gave no testimony raising the question of trouble between deceased and appellant, but on cross-examination was asked and stated that appellant had told him that he had had trouble, and that he was trying to get her to come back to him, but a man named Stokes was interfering, and keeping him from it.

This much of the evidence is here set out to make clear the fact that the evidence, if any, raising the theory of manslaughter, was not brought out by the state.

We are of opinion, however, that if the state had introduced in evidence facts from which a conclusion of manslaughter might be drawn, in whole or in part, it would not be compelled to rest its case there, nor be in any manner precluded from showing that such facts in the particular case did not produce the passion and did not cause an encounter at the first meeting of the parties, and that the case lacked other evidences of manslaughter; and, further, that such facts evidenced malice in the particular case, and that in truth the killing was murder and not manslaughter.

In the instant case, if the state had seen fit to prove as an original proposition that appellant killed deceased because he was going with his wife, who had sued him for divorce, this would in no sense have deprived the state of its right to proceed, if it could, to show that such killing was without passion or without the other indicia of manslaughter. This will be discussed further in the opinion. Each of the four elements of manslaughter hereinafter referred to must be shown by the state before appellant could claim the state bound, and even then the question would be for the jury.

Attention to, or acts toward, a wife, under our decisions, when relied on as cause to reduce the homicide to manslaughter, come under the head of insulting conduct toward a female relative, and such acts may be adequate cause even though acceptable and pleasant to the wife or female relative herself.

In all cases where insulting conduct is relied upon to reduce the homicide to manslaughter, the character of the female in question is made an issue under article 1134, Vernon's P. C. See, also, Wood v. State, 31 Tex. Cr. R. 571, 21 S. W. 602; Griffin v. State, 54 S. W. 586; Fox v. State, 71 Tex. Cr. R. 318, 158 S. W. 1141.

The objectionable evidence covered a period of time beginning some 8 years previous to the homicide and extending back for several years. Was such evidence too remote?

The same rule obtains in regard to evidence of this kind of reputation that applies to proving the reputation of a witness. Crane v. State, 30 Tex. App. 464, 17 S. W. 939.

In determining how far the evidence may be removed from that of the offense to which such evidence relates, it is impossible to make any hard and fast rule, and it seems that when such evidence is admissible at all same should be allowed regardless of the time; the probative force thereof, as affected by time, change, or other circumstance, being for the jury. No court can arbitrarily say that a greater or less period shall be fixed and adopted; and this is too plain for discussion. A witness may live here and there, and not be long enough in any one place to acquire a reputation. Coffelt v. State, 19 Tex. App. 436; Crane v. State, 30 Tex. App. 464, 17 S. W. 939.

A witness or party whose reputation becomes issuable may rove from place to place without fixed residence, in which case his reputation may be proven at any place where he lived long enough to establish one. Mynatt v. Hudson, 66 Tex. 66, 17 S. W. 396; Brown v. Perez, 89 Tex. 282, 34 S. W. 725; Clark v. Hendricks (Civ. App.) 164 S. W. 57.

These cases and others might also be cited as sustaining the proposition that the reputation once established is presumed to remain the same until the contrary appears. In Clark v. Hendricks (Civ. App.) 164 S. W. 58, Chief Judge Fly says:

"Appellant was a rover from one community to another in and out of Texas. He had lived during his 28 years of life in at least three states, in at least five counties, and numerous communities. Since 1907 he had been moving from one place to another. If appellant had any reputation it was formed in Hill county, where he lived longer than in any other county, and the reputation he formed there 4 or 5 years before the trial was not incompetent, especially as there was nothing to indicate that there had been any change for the better in his reputation. The time that had elapsed since the witnesses as to reputation knew him may have gone to the weight, but not to the admissibility, of the evidence. Mynatt v. Hudson, 66 Tex. 66, 17 S. W. 396; Brown v. Perez, 89 Tex. 282, 34 S. W. 725; Rice v. Ward, 93 Tex. 532, 56 S. W. 747."

As indicative of the impossibility of fixing an arbitrary rule, we cite Thomas v. State, 33 Tex. Cr. R. 607, 28 S. W. 534, where Presiding Judge Hurt held it allowable to prove the reputation in Alabama of one who had moved to Texas 4 years before the trial. In Jones v. State, 104 Ala. 30, 16 South. 135, the evidence reached back 7 or 8 years; State v. Espinozei, 20 Nev. 209, 19 Pac. 677, 15 years; Graham v. Chrystal, 2 Abb. Dec. (N. Y.) 263, 8 or 10 years; Fry v. State, 96 Tenn. 467, 35 S. W. 883, 6 years; Snow v. Grace, 29 Ark. 131, 7 years; Watkins v. State, 82 Ga. 231, 8 S. E. 875, 14 Am. St. Rep. 155, 8 years; Holmes v. Statler, 17 Ill. 453, 10 years, said 10 years beginning at a period 8 years before the trial, and extending 10 years further back, and the court held that, if it be claimed that the witness had reformed, that fact would be as easy of proof for the opposite party; Morss v. Palmer, 15 Pa. 51, 10 years. Brown v. Perez, 89 Tex. 282, 34 S. W. 725, supra, permitted a witness to testify to a period covering 30 years, where it was shown, that the party testified about was in and out of the state.

Appellant's own testimony brings the evidence in the instant case well within the scope of the cases cited. He says, "I was constantly on the drift," and names Dallas, Seagoville, Mineral Wells, Brenham, Bastrop, Terrell, Ballinger, and Paint Rock as places where he had lived since leaving Athens, where the reputation was principally made, and also says he had lived at a number of other places, and in one place he says he cannot recollect all the places where he had lived. Any presumption that the wife may have reformed after the period covered by such testimony as to reputation is refuted by the evidence shown in this record. A short time before the homicide appellant himself told the county attorney of Tom Green county that his wife had been down at Ballinger with a coffee drummer, "and stayed a night or two." He also telephoned the county attorney about a week before the killing that she was up in a rooming house at night with a man. He showed the justice of the peace letters which she had gotten from a man by the name of Williams, which were of such a nature as to cause said justice to tell appellant that if she was that kind of woman he did not see why appellant did not let her get a divorce and go her way. Appellant told the witness Green that he had a talk with deceased about his wife, and "told him what kind of woman she was." We think the trial court did not err in...