Brady v. State

• Decision Date: 27 November 1901
• Parties: BRADY v. STATE.
• Court: Texas Court of Criminal Appeals

65 S.W. 521

BRADY v. STATE.

Court of Criminal Appeals of Texas.

November 27, 1901.

Appeal from district court, Coleman county; John W. Goodwin, Judge.

A. P. Brady was convicted of murder in the second degree, and appeals. Reversed.

B. D. Tarlton and F. L. Snodgrass, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of seven years.

The state proved flight, and followed defendant with this character of testimony through all of his wanderings from the time of the homicide until his arrest, which occurred in Jackson, Miss. Among other things in this connection, it is shown that appellant was conducting a business in the city of Jackson under the name of J. S. Brady. This was relied upon as a circumstance or fact against appellant upon his trial. It is shown that the name of J. S. Brady was an assumed name, and not appellant's real name; and this was offered, evidently, for the purpose of showing appellant was evading arrest and trial. The flight had been continued to the time of his arrest, and this was introduced to show that he was still concealing his identity. In this connection, by the witness Johnson, it was proposed to prove: That he had heard appellant was under some character of suspicion, and that officers from Texas were on the lookout for him several days prior to his arrest, and that witness went to appellant's place of business and informed him of what he had heard. Appellant said he knew it, and that some officers or detectives had been to see him; that he (Brady) was not uneasy, and was not hiding from the officers of the law. About two or three days afterwards he was arrested and taken to Texas. That he made no effort to get away; had plenty of time to get away if he so desired. This was offered, as shown by the bill, to rebut the effect of the state's testimony showing appellant's flight, and his going under the assumed name in Louisiana, and in Jackson, and his arrest in Jackson, Miss., etc. We are of opinion this evidence was admissible, under the circumstances stated. The state had proved against appellant, and relied upon, his going under an assumed name, as a circumstance against him, in connection with his flight and other matters incident. Wherever one party relies upon a fact, the opposite party has a right to rebut that fact or circumstance. So, in this case, the state having relied upon appellant's flight to Jackson, and his going under an assumed name, and carrying on his business in that way, appellant was certainly entitled to negative any inference suggested by this testimony. If it was not a fact against appellant, the state used it as an adverse fact. See Russell v. State, 11 Tex. App. 292; Arnold v. State, 9 Tex. App. 439; Bouldin v. State, 8 Tex. App. 335; Walters v. State, 17 Tex. App. 229, 50 Am. Rep. 128; Lewallen v. State, 33 Tex. Cr. R. 412, 26 S. W. 832; Harvey v. State (Tex. Cr. App.) 34 S. W. 623; Wills, Circ. Ev. 159.

In regard to self-defense, the court charged the jury that if defendant killed deceased, but "at the time of so doing deceased had made an attack on him, which, from the manner and character of it, and the relative strength of the parties, and defendant's knowledge of the...