Carver v. State

• Decision Date: 01 November 1911
• Citation: 148 S.W. 746
• Parties: CARVER v. STATE.
• Court: Texas Court of Criminal Appeals

148 S.W. 746

CARVER v. STATE.

Court of Criminal Appeals of Texas.

November 1, 1911.

On Motion for Rehearing, June 19, 1912.

Appeal from District Court, Hill County; F. L. Hawkins, Judge.

N. M. Carver was convicted of manslaughter, and he appeals. Affirmed.

W. C. Wear and Morrow & Morrow, all of Hillsboro, for appellant. A. M. Frazier, County Atty., V. L. Shurtleff, Asst. County Atty., E. O. Call, Collins & Cummings, and C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant was indicted for murder by the grand jury of Hill county. When tried, he was convicted of manslaughter, and prosecutes this appeal.

1. The first bill of exceptions complains that the court erred in not permitting the defendant to introduce other and additional witnesses to prove that the reputation of deceased was that of a violent and dangerous man, and, if he made a threat, he was a man calculated to carry such threat into execution. The appellant introduced some 10 or 12 witnesses who so testified. When the court asked the prosecuting attorney if he expected to introduce any testimony on this issue, he stated, in the presence of the jury, that he would introduce no witnesses on that subject, and no contest would be joined on that issue. Inasmuch as the record shows that the prosecuting officers did not contest this issue, there was no error in not permitting the appellant to pursue this question further. Some discretion must be exercised by the court, and when appellant had introduced a number of witnesses on this point, and the county attorney stated he would not contest the issue, it would be a useless consumption of time to introduce other testimony in regard to a matter which was admitted to be true.

Neither did the court err in refusing to give the special charges relating to the weight to be given this testimony. The appellant requested the court to charge the jury: "The evidence in this case shows without controversy that the general reputation of the deceased, John Alford, was that of a violent and dangerous man, and you will treat that as an established fact in this case," and "the evidence establishes that John Alford was such a character as might reasonably be expected to execute a threat made by him, and you will regard that fact as established in this case." Both of these charges would have been upon the weight to be given the testimony, and the court is no more authorized to give such instructions in behalf of the defendant than he would in favor of the state. But the request for these instructions would indicate that appellant did not consider this a contested question, and, in the absence of some showing that subsequent to the time the state's attorney announced the state would not contest this issue some evidence was introduced or argument made by state's counsel seeking to minimize this admission, we hold the court did not err in these respects.

2. The state introduced Dr. J. B. Dunn, who detailed a statement made by deceased on the night of the difficulty. The appellant objected to this testimony (1) on the ground that it was not shown that deceased was in a dying condition; and (2) it was not admissible as a res gestæ statement. It was not sought to admit it as a dying declaration, or a statement made in extremis, but the claim was that it was a res gestæ statement. The testimony shows that the physician lived about four blocks from the livery stable of deceased; that he was called over the telephone and started when a carriage came after him, and he was driven to the stable, and that not more than 10 minutes elapsed from the time he was called until he arrived at the stable; that he was called within a half hour after the train passed on the Cotton Belt. The difficulty was shown to have taken place some minutes subsequent to the time the train passed; that deceased was lying on a cot when he got there, when the doctor asked him, "Why, my boy, what in the world is the matter with you?" when the deceased detailed his version of the difficulty. The testimony shows that deceased was cut in a number of places, and was suffering, and subsequently died, from the wounds inflicted by appellant. In Castillo v. State, 31 Tex. Cr. R. 152, 19 S. W. 892, 37 Am. St. Rep. 794, a statement made a half hour after the occurrence was held to be admissible under the facts of that case, and in that case Judge Davidson quotes approvingly the case of Lewis v. State, 29 Tex. App. 201, 15 S. W. 642, 25 Am. St. Rep. 720, wherein this court held: "`In order to constitute declarations a part of the res gestæ, it is not necessary that they were precisely coincident in point of time with the principal fact. If they sprang out of the principal fact, were voluntary and spontaneous, and made at a time so near it as to preclude the idea of deliberate design, they may be regarded as contemporaneous, and are admissible in evidence.' See, also, Foster v. State, 8 Tex. App. 248; Boothe v. State, 4 Tex. App. 202; Tooney v. State, 8 Tex. App. 452; Stagner v. State, 9 Tex. App. 441; Warren v. State, 9 Tex. App. 619, 35 Am. Rep. 745; Neyland v. State, 13 Tex. App. 536; Washington v. State, 19 Tex. App. 521, 53 Am. Rep. 387; McInturf v. State, 20 Tex. App. 335; Pierson v. State, 21 Tex. App. 15, 17 S. W. 468; Smith v. State, 21 Tex. App. 277, 17 S. W. 471; Powers v. State, 23 Tex. App. 42, 5 S. W. 153; Irby v. State, 25 Tex. App. 203, 7 S. W. 705; Fulcher v. State, 28 Tex. App. 465, 13 S. W. 750; Craig v. State, 30 Tex. App. 619, 18 S. W. 297. In Lewis' Case the conviction was for murder, and the statement of the deceased was made to two witnesses, at different times, from a half hour to one and a half hours after the occurrence. In Fulcher's Case the statement of the wounded party was made about 30 minutes after he was shot; and in both cases the statements were held to be res gestæ. Lewis v. State, 29 Tex. App. 201 [15 S. W. 642, 25 Am. St. Rep. 720]; Fulcher v. State, 28 Tex. App. 465 ." Each case must be judged from the conditions and circumstances in evidence. It is not so much the lapse of time, if made within a reasonable time, as the circumstances in evidence from the time of the difficulty until the time the statement is made, and as it appears in this case that a physician was called in but a few minutes after deceased was cut, that he was suffering and bleeding from the wounds, and the statement was made under these circumstances, we hold the testimony was admissible as a res gestæ statement.

3. In another bill of exceptions it is made to appear that the state offered to prove by the witness Bob Horn, when the defendant had laid predicates to impeach him, the statement that the witness made before the grand jury, which was objected to by the appellant, and the objection sustained by the court. State's counsel then stated to the court that he had a member of the grand jury summoned as a witness whose testimony would corroborate Horn, but, inasmuch as the court had sustained the objection to permitting Horn to thus testify, he would, by permission, excuse the witness. This statement was improper, and should not have been made, but we do not think the jury could have been influenced thereby. It was but an inadvertent statement made to prevent a witness from remaining longer in attendance on court. Especially would this appear not to be harmful when subsequent to this time the defendant offered testimony to impeach the witness and prove contradictory statements. The state would have been permitted then to support the witness by the testimony by the member of the grand jury. Long v. State, 17 Tex. App. 128; Williams v. State, 24 Tex. App. 637, 7 S. W. 333; Campbell v. State, 35 Tex. Cr. R. 160, 32 S. W. 774, and cases cited.

4. All the other grounds relate to errors claimed in the charge, and the failure of the court to give special instructions requested. From the state's standpoint the evidence would show that appellant and deceased both run livery stables in the town of Hubbard, and both customarily had conveyances to meet the trains for the purpose of carrying passengers and baggage. On the night of the difficulty a boy employed by deceased and a son of appellant both got hold of a suit case as a lady came off the train. Appellant's son, at the instance of appellant, turned loose, and deceased's boy went off with the baggage. Appellant then remarked, "I am not going to have Barney [his son] run over if I have to kill every son of a bitch in Hubbard," when deceased said to him, "You do not mean to call me a son of a bitch," when appellant pulled his knife, and deceased said, "I see you have got a knife. I have not got anything, but, if you will put up that knife, I will whip you. I think you are the dirtiest coward that ever walked the streets of Hubbard, and, if you will put up that knife, I will whip you in a few seconds." Defendant remarked, "Do it, God damn you," and run on deceased and began to cut him, when deceased began backing off. Defendant followed him and kept on cutting him. Deceased fell after backing some distance, when appellant got on him and stabbed him a number of times.

Dr. Dunn testified: "When I got to him [deceased], his condition was bad. He was bloody all over, and blood was running through from the cot. With reference to his mental condition, he was perfectly rational. He told me something about the difficulty. He said that the difficulty came up about a transfer and went on to tell me about it. He said that he saw Carver had a knife in his hand, and he said he put his hands up that way [raising his hands up in front of him], and told Carver that he didn't have a thing, and that, if he would put up the knife and fight him fair, he would whip him in 30 seconds. And he said that Thad Jones was standing kind of between them, and that he did not know whether Carver pushed him out of the way or run around him, but that he come around Thad Jones and commenced cutting at him, and that he commenced...