Burkhalter v. State

• Decision Date: 14 May 1919
• Docket Number: (No. 5237.)
• Parties: BURKHALTER v. STATE.
• Court: Texas Court of Criminal Appeals

212 S.W. 163

BURKHALTER v. STATE.

(No. 5237.)

Court of Criminal Appeals of Texas.

May 14, 1919.

Appeal from District Court, Cherokee County; L. D. Guinn, Judge.

John Burkhalter was convicted of murder, and appeals. Reversed and remanded.

Woods, Barkley & King, of Houston, A. A. Seale and C. C. Watson, both of Nacogdoches, and B. B. Perkins, of Rusk, for appellant.

E. A. Berry, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was convicted of murder; his punishment being assessed at five years' confinement in the penitentiary.

This is the second appeal, the first being found reported in 79 Tex. Cr. R. 336, 184 S. W. 221. In a general way, the facts and circumstances developed by this record are as in the former appeal. There is, however, in this record some rather important amended testimony not shown by the former record. Illustrative of this, Mrs. Jones testified on this trial that appellant made a confession or admission to her that he killed deceased. The statement was made under rather peculiar circumstances. It is not intended here to discuss her testimony and the circumstances attending her statement of the confession. On the former trial she testified, as shown by this record, that appellant, in talking to her about the matter, had no reference to the deceased, and that they were not talking about deceased at the time he made the statement. There was a witness named Russell who testified to an indirect confession of defendant, which he said occurred in the fall after the killing of deceased in the early spring or late winter prior to a conversation between him and defendant. This statement comes under rather peculiar circumstances. These matters are mentioned in order to meet appellant's contention that the court was in error in refusing and failing to charge the law applicable to circumstantial evidence. The testimony of Mrs. Jones in reference to the confession is positive and direct; that of Russell is not. Without the testimony of Mrs. Jones we are of opinion the case would be one of circumstantial evidence, but that matter is not further discussed.

A bill of exceptions recites that, after Russell testified for the state on cross-examination, he was asked, referring to his testimony in regard to appellant's conversation, if he did not state to Jim Manning that the defendant had made a statement to him, the witness, admitting the killing. This the witness Russell denied. It is then shown that the state proved by Russell that Manning told him (Russell) that defendant admitted to him (Manning) that he (defendant) had killed deceased. Manning was in attendance upon this trial, but was not used as a witness. Objection was urged to this testimony, which we think was well taken. If Manning made the statement to Russell that defendant admitted to him that he had killed deceased, it was hearsay and on a most material issue in the case. If defendant in fact made the admission to Jim Manning, Manning could have sworn to it and it would have connected the defendant directly with the homicide, but this could not be proved by a statement of Manning made to Russell. This was clearly hearsay testimony and inadmissible. It is also shown that Manning was present and could have been called as a witness, but was not. See Murphy v. State, 65 Tex. Cr. R. 55, 143 S. W. 616; Kinney v. State, 65 Tex. Cr. R. 251, 144 S. W. 257; Herrera v. State, 75 Tex. Cr. R. 120, 170 S. W. 719.

Another bill recites that appellant put his reputation in evidence as a law-abiding citizen, covering something like 15 years prior to the time of the homicide. The state was permitted then to introduce testimony showing that 15 or 20 years or more before this homicide appellant was given to fighting, and also to prove by one or more witnesses that he was then regarded "as a holy terror." The objection to this testimony should have been sustained. This was too long. The interregnum between his fighting capacity as a youngster and the time of this killing, something like 15 or 20 years, is too remote. See Bogus v. State, 55 Tex. Cr. R. 127, 114 S. W. 823, 131 Am. St. Rep. 804; Hanks v. State, 55 Tex. Cr. R. 451, 117 S. W. 150; Brown v. State, 56 Tex. Cr. R. 389, 120 S. W. 444; Wesley v. State, 85 S. W. 802; Bowers v. State, 45 Tex. Cr. R. 185, 75 S. W. 299.

Another bill raises objection to the introduction of testimony of the witness Adams in regard to tracks. The record shows in this connection that the homicide occurred in the morning about 9 or 10 o'clock. Quite a crowd of neighbors gathered in and around the body. The justice of the peace from Nacogdoches, and the sheriff, deputy sheriff, and the constable from the town of Garrison were also among those present. There was a good deal of walking around about the scene of the homicide and investigation for tracks and evidences that might lead to the discovery of the party who shot the deceased. It was in a very densely wooded country and a great many leaves upon the ground which rendered it impossible, it seems from the testimony, to find tracks. None were discovered. About seven days afterward some of the officers were upon the ground looking for evidence. Among those present on the latter visit was the county attorney, who was not present on the day of the killing. He testified, among other things, that he found some tracks near the scene of the killing which he described as being made by a shoe about No. 8 or 9 in size, which showed peculiar indentations evidencing that the shoe had some protruding tacks which left an impression in the tracks so found. He testified further that the defendant was with them, and that they went to dinner at defendant's house, which was several hundred yards away, and while there they engaged defendant in conversation as to the character of shoes and boots that he owned. Witness asked the defendant the privilege of seeing his boots or shoes. Defendant told them there was a pair of boots in the room, which they examined, and witness says that these boots had tacks that would make a similar impression to those he saw on the ground near the scene of the homicide, and that he thought these boots were about No. 8 or 9 in size, and that his judgment and conclusion was that these boots made the tracks on the ground. It is further in evidence that the defendant made statements that he was about 250 yards away from the scene of the shooting at the time...