Brown v. State

• Decision Date: 20 November 1901
• Citation: 65 S.W. 529
• Parties: BROWN v. STATE.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Criminal Appeals

65 S.W. 529

BROWN v. STATE.¹

Court of Criminal Appeals of Texas.

November 20, 1901.

Appeal from district court, Smith county; J. Gordon Russell, Judge.

John Brown was convicted of murder in the second degree, and appeals. Affirmed.

Wm. H. Hanson and N. A. Gentry, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for 15 years; hence this appeal.

Appellant objected to the introduction by the state of the following testimony from the witness Isom Pittman, to wit: "That on the night of the homicide I heard John Brown [defendant] and Nim Brown have a conversation, in which conversation Nim Brown said to John Brown, `Let me have the gun; I will kill any son of a bitch that tries to run over my sister;' and John Brown refused to let him have the gun. John Brown said to Nim, `I will fix him.'" Appellant objected to this testimony on the ground that it was too general and indefinite; that it was irrelevant, and did not connect the threats with deceased, Houston Mayfield, in any manner whatever; that the witness did not know who they were talking about, etc. With reference to this bill of exceptions, we would observe it has been repeatedly held that a bill should state all the conditions surrounding the admitted testimony, so as to show that the court acted improperly in admitting it. McGlasson v. State, 38 Tex. Cr. R. 351, 43 S. W. 93; Cline v. State, 34 Tex. Cr. R. 347, 30 S. W. 801; Buchanan v. State, 24 Tex. App. 195, 5 S. W. 847. The judge must certify to the truth of the facts stated. A certificate of the judge to the effect that certain objections were urged to the testimony will not be considered sufficient. Cline v. State, supra. Testing this bill of exceptions by the rule laid down in the above cases, it will be seen it is not shown by the bill that this was all the testimony showing, or tending to show, the pertinency and relevancy of said evidence. If this bill had shown that it contained all the testimony connecting the declaration of John Brown with deceased, then it would have shown the inadmissibility of said testimony, and have pointed out the error of the court. If we are permitted to recur to the statement of facts, it will be seen that said bill does not embrace all the testimony showing, or tending to show, the allusion of John Brown to deceased. The record furnishes testimony showing that the parties were at a festival or dance; that deceased's wife was there; that a little while before the homicide deceased had requested his wife to go home, and endeavored to make her go, and in that connection appellant remarked that, if deceased's wife did not want to go home, she need not go. A short time prior to the homicide Nim Brown, who was a brother of deceased's wife and also related to John Brown, had a difficulty with deceased, and they were separated. After this Nim Brown wanted to get the gun from John Brown, evidently to use it on deceased, Mayfield, and it was then John Brown said to Nim that he would fix him. Clearly, when viewed in the light of the statement of facts bearing upon this issue, the testimony which was admitted had direct reference to the deceased, and comes within the rule recognized by the text-books and authorities in this state. Strange v. State, 38 Tex. Cr. R. 280, 42 S. W. 551; Godwin v. State, 38 Tex. Cr. R. 466, 43 S. W. 336; Holley v. State, 39 Tex. Cr. R. 301, 46 S. W. 39; Gaines v. State (Tex. Cr. App.) 53 S. W. 623.

Appellant offered to prove by several witnesses that they saw John Brown (defendant) after he had gone about a half mile, to his home, after the killing of Houston Mayfield, and about a half hour after the killing; that they called him to the gate at his house, and asked him if he had done the shooting; and that he said he had done the shooting, and then inquired if he hit any one. They told him he did, and he replied if he hit any one it was an accident; that he was shooting to scare them. This was the first thing he said when he came to the fence. There was not anything said after he got to the fence. He did not deny he fired the gun, but insisted if he hit any one it was an accident, and he was sorry for it. This was objected to by the state, and excluded by the court. Appellant claimed it was admissible, because it was a part of the res gestæ. The court excluded it on the ground that it was not a part of the res gestæ, it being too remote. The same observations may be made with reference to this bill as were made in regard to the preceding; that is, the bill should show in itself all the circumstances that transpired from the time of the homicide until the declaration was made, so that it could be seen whether or not the court erred in excluding it. The only circumstances here stated are that the declaration was made after defendant had gone about half a mile from the scene of the homicide, to his home, and that it was about a half hour after the killing. It is not shown that he did not have his attention engaged with other matters in the meantime, or what he did. For aught that appears, he may have engaged in various conversations, not only about other matters, but in regard to the difficulty. If we recur to the statement of facts, it appears that appellant made substantially the same declaration at the scene of the homicide and immediately thereafter which is attributed to him at his house a half mile distant and a half hour afterwards. And this declaration was properly admitted by the court as a part of the res gestæ. In the shape in which this bill is presented, it is not necessary to discuss whether or not appellant could introduce repeated declarations of his own to the same effect, made both at the time and afterwards, and claim they were res gestæ.

Appellant strenuously insists there is a variance between the allegations in the indictment as to the means of killing and the proof, to wit, that the indictment alleged appellan...