Carbough v. State

• Decision Date: 07 March 1906
• Citation: 93 S.W. 738
• Parties: CARBOUGH v. STATE.
• Court: Texas Court of Criminal Appeals

93 S.W. 738

CARBOUGH v. STATE.

Court of Criminal Appeals of Texas.

March 7, 1906.

Appeal from District Court, Camp County; P. A. Turner, Judge.

H. J. Carbough was convicted of murder, and appeals. Affirmed.

S. M. Long, J. H. Beavers, Leroy M. Wade, and Rolston, Ward & Hutchings, for appellant. Horace W. Vaughan, Co. Atty., and Howard Martin, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was charged as an accomplice with the murder of J. P. Austin. This is a companion case to that of Wallace v. State 87 S. W. 1041, 13 Tex. Ct. Rep. 612.

The first question suggested for revision is the charge of the court, in which it is insisted that the court left the admissibility of the testimony to the jury. In Wallace v. State, supra, it is stated that the admissibility of testimony was for the court, and not for the jury; that where the evidence was introduced, and it was an issue whether a proper predicate had been laid for it, the court having satisfied himself that the fact that it was admissible, the issue should be submitted to the jury on the predicate and contradiction of the predicate; it being an issue of fact the jury should decide whether or not they should believe the predicate for the state or that which contradicts it. In other words, if they should believe the predicate for the introduction of it, they could regard the testimony in making up their verdict; if they should disbelieve or fail to believe the predicate, it being attacked, then they should disregard the testimony in arriving at such verdict. An inspection of this charge convinces us that the court conformed the charge to the suggestions made in the Wallace Case. It is true that he used an expression to the effect that he would leave the admissibility of the testimony to the consideration of the jury under the following instructions, etc. The mere fact that the court used the word "admissibility" in the connection stated does not, as in the former case, leave the question of the admissibility to the jury. The word "admissibility" here is used in the sense of leaving it to their consideration and to be considered by them under the following rules, etc. We do not believe there is any error shown by this record in regard to this phase of the charge.

The next question urged for reversal is the alleged error of the court in regard to accomplice's testimony. The charge given has been criticised by this court and held to be upon the weight of testimony in Bell v. State (Tex. Cr. App.) 47 S. W. 1010, Jones v. State, 72 S. W. 845, 7 Tex. Ct. Rep. 13, Hart v. State, 82 S. W. 652, 11 Tex. Ct. Rep. 190, Washington v. State, 82 S. W. 653, 11 Tex. Ct. Rep. 1028, Crenshaw v. State, 85 S. W. 1147, 12 Tex. Ct. Rep. 758, and Barton v. State, 90 S. W. 877, 14 Tex. Ct. Rep. ___. Under these authorities this charge is erroneous. The state meets this with the counter proposition that, appellant having asked the same charge, he cannot be heard to complain. An inspection of the charge given and that requested by appellant shows they are almost identical; at least they are practically the same in verbiage. The vice in the charge is that the court failed to instruct the jury that, before they could convict, the accomplice must not only be corroborated, but they must believe the testimony of the accomplice to be true. The court did not instruct the jury that, before conviction, they should believe the testimony of the accomplice to be true. The state further contends that, having asked this charge, it being the same as that given by the court, it comes within the nature of what may be termed "invited error," and cites the following authorities in support of this proposition: Hall v. State, 28 Tex. App. 146, 12 S. W. 739; Tuller v. State, 8 Tex. App. 501; Evans v. State, 6 Tex. App. 513; Needham v. State, 19 Tex. 333; Railway v. Sein, 89 Tex. 63, 33 S. W. 215, 558; Railway v. Eyer (Tex. Sup.) 70 S. W. 529; Railway v. Jenkins (Tex. Civ. App.) 69 S. W. 233; Railway v. McDonald, 85 S. W. 493, 11 Tex. Ct. Rep. 1015. Railway v. Sein, supra, was approved in Dignowitty v. Elmendorf (Tex. Civ. App.) 40 S. W. 1009; Railway v. Dixon, 17 Tex. Civ. App. 328, 42 S. W. 1009; Railway v. Weigers, 22 Tex. Civ. App. 347, 54 S. W. 910; Railway v. Botts (Tex. Civ. App.) 57 S. W. 854; M., K. & T. Ry. Co. of Texas v. Evans, 16 Tex. Civ. App. 73, 41 S. W. 80; San Antonio v. Ostrom, 18 Tex. Civ. App. 679, 45 S. W. 961; I. & G Ry. v. Newman (Tex. Civ. App.) 40 S. W. 855.

These latter cases hold that where a charge has been given, although erroneous, at the request of appellant, he cannot complain; following and affirming the rule laid down in Railway v. Sein, supra, where the charge requested and refused has been substantially given in the court's charge, any error arising therefrom cannot be questioned by the party requesting the charge. Hillsboro v. Jackson, 18 Tex. Civ. App. 326, 44 S. W. 1010; Railway v. Culpepper, 19 Tex. Civ. App. 188, 46 S. W. 922; Davis v. Davis, 20 Tex. Civ. App. 312, 49 S. W. 726; Hardman v. Crawford, 64 S. W. 938, 3 Tex. Ct. Rep. 185. These authorities would seem to settle two propositions: First, where the charge, although erroneous, had been given at the instance or invitation of the party complaining, it is not error of which he can complain, or that would bring about a reversal; second, where the charge as given is the same as that requested, it is not error to refuse the requested instruction, nor will the court reverse because the original charge is wrong. This question was fully discussed by the Supreme Court in I. & G. N. Ry. v. Sein, supra, where this language is used: "It is a general rule that, when counsel has requested the court to charge a given proposition of law and it is given, if the charge requested and given is erroneous, such error cannot be taken advantage of by the party whose counsel made the request. The question now before the court is, in substance, if, in the course of a trial, counsel requests the court to give an instruction to the jury, which is refused, but which in whole or in part is embraced in the charge of the court, can the counsel or the party for whom he acts question the correctness of the charge given by the court in so far as it conforms to the request made? This question has often been before appellate courts, and has uniformly, so far as we are able to find, been held against the right of a party or his counsel, upon appeal, to call in question a ruling of the trial court which was made at his suggestion; and it has been generally held that when a charge requested, but refused, was embraced in the general charge of the court, any error arising therefrom could not be questioned by the party who requested the charge. Elliott App. Proc. § 627; Tucker v. Baldwin, 13 Conn. 136, 33 Am. Dec. 384; Alberts v. Vernon, 96 Mich. 549, 55 N. W. 1022; Railway v. Moseley, 56 Fed. 1009, 6 C. C. A. 225; Haggard v. Insurance Co., 53 Mo. App. 106; Eastmand v. Curtis (Vt.) 32 Atl. 232; Stevens v. Crane, 116 Mo. 408, 22 S. W. 783; Silsby v. Mich. Car. Co. (Mich.) 54 N. W. 761; Railway v. Fortney, 51 Kan. 287, 32 Pac. 904. The principle upon which these decisions rest is that, although the charge requested was refused by the court, yet, if the same proposition is embodied in the charge given by the court, it will be presumed that the charge as given was so given in compliance with the...