Brownlee v. State

• Decision Date: 14 June 1905
• Citation: 87 S.W. 1153
• Parties: BROWNLEE v. STATE.
• Court: Texas Court of Criminal Appeals

87 S.W. 1153

BROWNLEE v. STATE.

Court of Criminal Appeals of Texas.

June 14, 1905.

Appeal from District Court, Walker County; Gordon Boone, Judge.

John Brownlee was convicted of murder in the second degree, and he appeals. Reversed.

Dean, Humphrey & Powell and Thos. H. Ball, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

BROOKS, J.

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

Appellant's second assignment of error complains that the court permitted Mrs. Maggie Gibbs to testify as to the conduct and behavior of deceased on the night of the killing and prior to the breaking up of the dance at Bendy Gibbs', she stating that said conduct of the deceased was as nice as could be, that he acted a perfect gentleman. If, as appellant insists, defendant did not know of the conduct of the deceased, any conduct on his part not brought home to his knowledge would not be admissible against him in a subsequent trial.

Appellant's third assignment insists that the court erred in refusing to permit appellant to prove by John Gibbs, placed upon the stand by the state, that he did not say, "Look out boys, they both have knives!" and that he saw no knife; and if said witness did not have a conversation with one John Floyd, stating time and place, in which conversation the said witness stated to John Floyd that he knew of and about the difficulty between defendant and deceased; that he saw the same, and that, if he would tell what he knew about it, there would be no case against defendant. Appellant further complains that the court erred in refusing to allow defendant to ask said witness John Gibbs if the said John Floyd did not then and there say to him, and ask him, why he did not tell what he knew about said difficulty; and if the said witness did not then and there reply to the said Floyd that he could not do it; that it would clear John Brownlee and implicate another party. The state objected to proof by appellant of the above on the ground that the same was not in rebuttal, was immaterial, irrelevant, and secondary. Defendant stated that he offered said testimony to show the animus and hostility of the witness towards the defendant, and also for the purpose of contradicting the witness by the said John Floyd. This testimony was admissible to show the bias, motive, and animosity of the witness, was not upon a collateral issue, and the court committed error in refusing to permit the same to be proved. Watts v. State, 18 Tex. App. 381.

Appellant's fourth assignment shows that appellant attempted to impeach said witness John Gibbs by the testimony of E. W. Boazman, constable of precinct No. 1 of Madison county, on the same line as stated in the third assignment, which the court refused. There was also error in this.

The fifth assignment complains that the court permitted W. D. McDonald to testify that prior to the killing, in the afternoon of the day of the killing, he saw deceased in the town of Madisonville, and he then looked peaked, and looked like he had been sick. The objection to this testimony is that defendant did not know anything about this, and the condition of deceased was apparently obvious. These objections are well taken.

The sixth assignment complains that the court erred in the nineteenth, twentieth, and twenty-first paragraphs of the general charge to the jury relating to submitting the law of manslaughter, on the ground that said charges limited the acts constituting provocation for sudden passion to acts occurring at the very time of the homicide; and that under the evidence in this case for the state the acts that constituted the provocation occurred some four or five minutes before the homicide, and in what was termed by the witnesses the first difficulty. The court, in his charge on these facts, should have submitted to the jury the law as to cooling time. Without detailing all the evidence, that on the part of the state shows there were two difficulties. The testimony on the part of defendant shows that he was not the aggressor in either difficulty, but that deceased assaulted him in each instance without cause or excuse. Nat Chambless, witness for the state, testified in reference to the difficulty as follows: After stating that he went to the party at Bendy Gibbs', and lingered around the house, he testified: "I was at the gate,...