Casey v. State
| Decision Date | 20 December 1905 |
| Citation | 90 S.W. 1018 |
| Parties | CASEY v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from District Court, Franklin County; P. A. Turner, Judge.
John Casey was convicted of murder in the second degree, and appeals. Reversed.
R. T. Wilkinson and Rolston, Ward & Hutching, for appellant. Howard Martin, Asst. Atty. Gen., for the State.
This conviction was for murder in the second degree, and 10 years in the penitentiary fixed as a penalty.
Appellant used Laura Casey as a witness, and proved by her that on the night of the difficulty she was in the dining room. Immediately upon the gun firing she went out on the gallery. She spoke to appellant, and asked him "what he did that for." His reply was that Harrison was coming onto him with a knife. This killing occurred at the residence of appellant. Harrison (deceased) was also living in the house. This was practically all the evidence of any moment testified to by the witness Laura Casey for appellant. The bill recites that the defendant asked the witness no further questions, and she was turned over to the state. For the purpose of laying a predicate for impeachment, the state asked this witness several questions, and they were answered, denying making the imputed statement. These questions were about matters not brought out by appellant on his examination of the witness. She was, therefore, in regard to these matters, not made a state's witness, and the answer was a denial simply. Witnesses were then placed upon the stand by the state to show that she made the various statements inquired about to them. Exception was reserved to this; first, that she became a state's witness in regard to the new matter elicited, or sought to be elicited; and, second, having failed to elicit such answers as desired, it was a failure of proof, and the witnesses who contradicted her could not be used to rebut her statements before the jury, and thus get the evidence before them. Both contentions are well taken. In regard to the first proposition see Jones v. State, 38 Tex. Cr. R. 87, 40 S. W. 807, 41 S. W. 638, 70 Am. St. Rep. 719; Harvey v. State, 37 Tex. 365; Woodward v. State (Tex. Cr. App.) 58 S. W. 135; Hodge v. State (Tex. Cr. App.) 64 S. W. 242. In regard to the second proposition see Erwin v. State, 32 Tex. Cr. R. 520, 24 S. W. 904; Dunagain v. State, 38 Tex. Cr. R. 614, 44 S. W. 148; Bailey v. State, 37 Tex. Cr. R. 581, 40 S. W. 281; Gibson v. State (Tex. Cr. App.) 29 S. W. 471; Knight v. State (Tex. Cr. App.) 65 S. W. 89; Owens v. State, 79 S. W. 575, 10 Tex. Ct. Rep. 217; Wells v. State, 67 S. W. 1020, 4 Tex. Ct. Rep. 830. There are other bills of exception reserved in regard to other witnesses, the same as that in regard to Laura Casey, which are included in the observations in regard to the attempted impeachment of Laura Casey.
Applying the law of murder in the second degree, the court thus instructed the jury: "If you believe from the evidence beyond a reasonable doubt that defendant, with a gun (the same in your opinion being a deadly weapon), with intent to kill, did shoot and thereby kill J. F. Harrison, as charged in the indictment, and if the...
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