Burnaman v. State

• Citation: 159 S.W. 244
• Parties: BURNAMAN v. STATE.
• Decision Date: 07 May 1913
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

159 S.W. 244

BURNAMAN v. STATE.

Court of Criminal Appeals of Texas.

May 7, 1913.

Rehearing Denied June 25, 1913.

Appeal from District Court, Nacogdoches County; James I. Perkins, Judge.

Sam Burnaman was convicted of manslaughter, and he appeals. Affirmed.

King & King, of Nacogdoches, for appellant. Blount & Strong, of Nacogdoches, and C. E. Lane, Asst. Atty. Gen., for the State.

PRENDERGAST, J.

Appellant was indicted for the murder of his brother-in-law Mike Manning. On a trial he was convicted of manslaughter, and his penalty fixed at five years in the penitentiary.

One of the state's most material witnesses was Bill Lee, who gave pertinent testimony against appellant. He and appellant's brother, Phillip Burnaman, were together near Phillip's house at the time appellant killed deceased. Immediately after the killing appellant went from the scene to said Lee and appellant's brother Phillip, and made certain res gestæ statements to them. The state introduced Bill Lee when first opening and presenting its case. He at that time fully testified to said res gestæ statements. After introducing other testimony, the state rested. Appellant thereupon, among other witnesses, introduced his brother, Phillip Burnaman, who was a most material witness for appellant and gave pertinent and strong testimony in his favor, disputing, in part at least, the testimony of said Bill Lee as to said res gestæ statement, and adding thereto material and strong testimony, tending to establish appellant's most material defense, which was self-defense. The state, in crossing appellant's brother Phillip, did not ask him if he had attempted to get said Lee to testify as he (Phillip) did as to said additional material res gestæ statement, or what appellant had said to them and exhibited to them immediately after said killing. In rebuttal, after appellant had closed his testimony, the state reintroduced said Lee, who testified, denying pointedly the testimony of appellant's brother, Phillip, as to said additional claimed res gestæ statement. (The court, in approving appellant's bill raising this question, allowed it in connection with the full statement of the evidence, as shown by the statement of facts.) The witness Phillip Burnaman, after having testified for appellant, was excused by the court from further attendance, with notice to both parties, and had gone to his home some miles distant, and his further attendance was not had, and he was not again placed on the stand.

We here quote in full what then occurred and what said witness Lee testified:

"State: Now, the other question we want to ask this witness in regard to the statement of that absent witness, we can't do it unless we have him here to ask the question.

"Court: Well, if that is all, stand him aside.

"State: We will ask the question.

"Defendant: We object if there is no predicate laid.

"State: It is a question I don't think a predicate has to be laid for; the court can pass on that proposition.

"Q. I will ask you whether or not, since the morning of the homicide there, that means the killing, after you met Sam, since that time the brother of Sam, that is, Phillip, has approached you and told you that you and him must get together and understand this matter alike, so that you could tell it alike when you came to court? A. Yes, sir.

"Defendant: We object to that; that is certainly not impeaching testimony to begin with, and if there is any— all right; go ahead; we don't care.

"A. Phillip has talked to me twice about that. In the conversation with Phillip he undertook to call my attention to the fact, and asked me if I didn't see cut places there; that was a day or so, a couple of days after the killing took place; I went back up there to work, and he says, `Didn't Sam show us that cut place on his jumper?' and I says, `No, he didn't show it to me,' and he says, `I saw it somewhere,' and says `It seems to me like it was when he come up here,' and he says, `You want to understand this has got to go to court,' and I says, `Well, I know it. I have been summoned to go to court.' Q. And what was it he said to you when he was talking that you answered while ago that you must get together on the matter?

"Defendant: We object to that.

"Court: What was it?

"State: I asked him what was it the brother, Phillip, said about getting together.

"Defendant: Go ahead and relate it again.

"A. I started to preaching one evening, and Phillip saw me coming, and come and met me, and he stopped me and says, `You know this little thing is going to be in before the grand jury now right away, and we want to get together—'

"Defendant: We object because this is the statement between two witnesses in the absence of the defendant.

"Court: It only goes to the credibility of the witness.

"Defendant: There is no predicate laid for it.

"Court: I don't think it is a character of matter that requires a predicate.

"Defendant: We except to the ruling of the court.

"`And he says we want to get together and tell this matter so we can tell it alike,' and I told him that I had done told it once just like I saw it—that was the way I was trying to tell it, and I rode off and left him standing there in the road. After Sam came up there where me and Phillip were after the shooting, and on that same morning before the body was moved, I saw Sam Burnaman again; he was leading his horse as we were moving Mike, we met him coming leading his horse out of the pasture, we were in about 7 or 8 steps of him; I don't know whether his jumper was buttoned at that time or not; I didn't notice anything wrong with his clothes or torn places anyway, but I didn't notice him much because I was helping carry Mike. I never at either of those times noticed that his clothing were torn and his breast open, or anything of that kind."

By his second bill appellant claims that the court committed reversible error in failing and omitting to limit the effect of the said testimony of Bill Lee to impeachment purposes alone of his brother, Phillip. His contention is that it is error for the court to have permitted, over his objections, the state to prove that his brother, Phillip undertook to persuade said Lee to change or manufacture his testimony, unless it be shown that he was connected with or authorized the same. The state contends that this testimony by Lee was admissible as original evidence for the purpose of showing the bias and interest of Phillip in his brother's favor; that it shows or tends to show the motive of Phillip in testifying as he did in appellant's favor.

It has many times been decided by this court, and we think it is elementary, that the "motives which operate upon the mind of the witness when he testifies are never regarded as immaterial or collateral matters. A party may prove declarations of the witness which tend to show his bias, interest, prejudice, or any other mental state or status, which, fairly construed, might tend to affect his credibility." Pope v. State, 143 S. W. 613, and cases therein cited and principles therein held. The rule is that the hostility of a witness towards a party against whom he is called may be proved by any competent evidence. It may be shown by cross-examination of the witness, or other witnesses may be called who can swear to facts showing it. In People v. Brooks, 131 N. Y. 321, 30 N. E. 189, the rule is thus stated "The hostility of a witness towards a party against whom he is called may be proved by any competent evidence. It may be shown by cross-examination of the witness, or witnesses may be called who can swear to facts showing it. There can be no reason for holding that the witness must first be examined as to his hostility, and that then, and not till then, witnesses may be called to contradict him, because it is not a case where the party against whom the witness is called is seeking to discredit him by contradicting him. He is simply seeking to discredit him by showing his hostility and malice, and as that may be proved by any competent evidence, we see no reason for holding that he must first be examined as to his hostility." This rule was again reasserted in Brink v. Stratton, 176 N. Y. 150, 68 N. E. 148, 63 L. R. A. 182.

Mr. Underhill, in his excellent work on Criminal Evidence, section 248, says: "The bias of the witness and his interest in the event of the prosecution are not collateral, and may always be proved, to enable the jury to estimate his credibility. They may be proved by his own testimony upon cross-examination, or by independent evidence. * * * The bias of the witness may be shown either by independent testimony, or by questions put to him on his examination." This court has expressly held this in several decisions. Cockrell v. State, 60 Tex. Cr. R. 128, 131 S. W. 221; Porch v. State, 51 Tex. Cr. R. 11, 99 S. W. 1122; Bonnard v. State, 25 Tex. App. 195, 7 S. W. 862, 8 Am. St. Rep. 431. So has our Court of Civil Appeals at Galveston. Trinity County Lumber Co. v. Denham (Civ. App.) 29 S. W. 553. To the same effect, see, also, People v. Mallon, 116 App. Div. 425, 101 N. Y. Supp. 814, affirmed in 189 N. Y. 520, 81 N. E. 1171; Morgan v. Wood, 24 Misc. Rep. 739, 53 N. Y. Supp. 791. In 30 Enc. of Law (2d Ed.) 1127, it is said: "In some states evidence showing that a witness is interested in the result of litigation, or otherwise biased in favor of or against one of the parties, is admissible, without first examining the witness on the subject (citing the decisions of several states so holding)." In the same section, however, it is further stated: "The weight of authority is to the contrary. At least where the bias is sought to be shown by the declarations of the witness himself." Again, in 40 Cyc. p. 2676, it is laid down: "A party seeking to show interest or bias of an adverse witness is not confined to cross-examination, but may introduce independent evidence for the purpose (citing many decisions, some the same as cited in 30 Enc. of Law,...