Casey v. State

• Decision Date: 09 November 1906
• Parties: CASEY v. STATE.
• Court: Texas Court of Criminal Appeals

97 S.W. 496

CASEY v. STATE.

Court of Criminal Appeals of Texas.

November 9, 1906.

Appeal from District Court, McLennan County; J. T. Sluder, Judge.

Tom Casey was convicted of murder in the first degree, and he appeals. Reversed and remanded.

V. A. Bryan, L. T. Williams and Taylor & Gallagher, for appellant. J. E. Yantis, Asst. Atty. Gen., for the State.

BROOKS, J.

Appellant was convicted of murder in the first degree, and his punishment assessed at confinement in the penitentiary for life.

Appellant's ninth assignment of error complains that the court erred in refusing to permit appellant to prove by witness A. B. Brandon the res gestæ statement of the boy, Ry Casey, occurring on the sidewalk in front of the building where the killing occurred, and within 15 feet of the immediate place of the killing, and about 1½ minutes after the killing while said boy was greatly agitated and crying. The statement made to the witness Brandon by Casey was to the effect that deceased snapped his pistol at his father twice, and that his father then grabbed his gun away from him, Ry Casey, and shot deceased. Declarations of bystanders are not admissible as res gestæ. There is no evidence that Ry Casey was a particeps criminis to the crime at all, but was merely present, and his father jerked the gun out of his hand, and killed deceased with it.

The tenth assignment complains that the court permitted the state to prove by witness Bob Hollowell that deceased, Will Wade, a short time before the killing, and immediately after the difficulty between deceased and George Madden, stated in the presence of said witness the following: "Oh! that is all right now. That debt is paid, and I am even with him. He has done paid it, and I am satisfied." This declaration was in the absence of appellant, and never communicated to him prior to the difficulty. The record shows that appellant and George Madden were friends, and that they had started on a fishing trip in Western Texas and New Mexico; that they lived about 15 miles from Waco; that George Madden and Ry Casey (son of appellant) had come to Waco on the day of the killing in a wagon, and had put up at Ham's Wagon Yard. Defendant had come in later on the train. In the early part of the afternoon, deceased made an assault upon George Madden, in his (deceased's) saloon, about some old debt or dishonored check transaction. George Madden was drunk. George Madden was a brother of Henry Madden, who was with defendant and Ry Casey at the time of the homicide. The killing by appellant of deceased grew out of the beating deceased gave George Madden. This testimony was not admissible. Appellant also complains because the court permitted the stenographer to read from his stenographic notes, taken at the habeas corpus trial, and not from any independent recollection of what the defendant's witness J. L. Hewitt testified on said habeas corpus trial. The stenographer swore to the accuracy of his notes, and from that read certain excerpts which were introduced by the state for the purpose, and properly so, of impeaching the witness Hewitt. This was correct. See Stringfellow v. State, 42 Tex. Cr. R. 588, 61 S. W. 719.

The thirteenth assignment complains that the court refused to permit appellant to read other portions of the stenographic report of the witness Hewitt's testimony. The bill presenting this, like many other bills in this record, is voluminous; but, in view of the fact that this case will be reversed, we hold that any testimony explaining, modifying, or contradicting the portion of the record introduced by the state of the witness Hewitt's testimony, could be introduced by appellant; but only such as did so.

The twelfth bill of exceptions complains that the court erred in permitting state's counsel on cross-examination by witness Hewitt to ask and prove by him that said witness had been tried for cattle stealing in the year 1885. The bill is defective, in that it does not show when appellant was indicted. However, the facts show that he was indicted for cattle theft, and the indictment dismissed. If the testimony on another trial shows that this indictment was returned in 1885, then the testimony should not be admitted. For a discussion of this matter, see Bowers v. State (Tex. Cr. App.) 71 S. W. 285; Stull v. State (Tex. Cr. App.) 84 S. W. 1059; Busby v. State (Tex. Cr. App.) 86 S. W. 1032; Wesley v. State (Tex. Cr. App.) 85 S. W. 802. If no testimony is introduced attacking the credibility or reputation of witness Hewitt for truth and veracity then it would not be permissible to introduce witnesses Compton and Matthews to prove his good reputation in that respect.

Bill No. 19 complains of the following: That the court permitted the state, upon cross-examination of ...