Childers v. State

• Citation: 16 S.W. 903
• Court: Court of Appeals of Texas
• Decision Date: 27 June 1891
• Parties: CHILDERS v. STATE.

16 S.W. 903

CHILDERS v. STATE.

Court of Appeals of Texas.

June 27, 1891.

Appeal from district court, Bexar county.

Following is the deposition of Dr. Walling, which was excluded: "I was acquainted with the deceased, James Draper. I met him in San Antonio. I, with others, employed him several times to drive me about the city during my stay there. We had frequent conversations. The chief conversation occurred after one of our drives, in front of the Menger Hotel at San Antonio. There were present at this conversation Mr. Carter, representing the Monarch Distillery Company in Texas, — I don't know his first name, — and Mr. George Porter, of Louisville, was present also during part of the time. On this occasion this James Draper, the hack-driver, entertained us for probably an hour with stories, relating his experience as a cowboy. He told many stories showing his adventure and daring, of which I cannot give a detailed account. I recollect one story from the fact that I have repeated it since my return. He said to me: `You can't be no cowboy and be a Christian. I had a pard once for two years that tried that. He rode a fiery roan horse which I told him would kill him, as the horse had been broken by a swearing man. On one occasion when I was present the horse became unruly, and my pard tried to check him. He could not do it, and I told him to curse him. He would not do it, and the horse threw him and broke his neck. I tell you, sir, you can't be no cowboy and be a Christian.' He told me of being employed by the owner of a ranch to control some twenty desperate Mexicans who were cowboys on the same ranch. He said that he slept with his hand on his pistol for two weeks at a time, fearing that they would murder him, but that he succeeded in controlling them, and that they did not dare to molest him. I cannot recall the details of any of his stories in sufficient connection to state them, but during that hour's conversation he told me many of them, and always represented himself as being a participant, and many of them were of a desperate character. The man impressed me as telling the truth, and as being a desperate and dangerous man. Immediately after this conversation I met the defendant, Childers, in the rotunda of the Menger Hotel, he having seen Mr. Carter, Porter, and myself in conversation with Draper in front of the hotel where we were sitting. He addressed the three of us as we approached him in the hotel with the expression, `Who is your friend?' referring to Draper, who had then left us. In reply to his question, I said that he was a hack-driver whom we had employed to drive us about the city; that he had been a cowboy for years, and was regaling us with some wonderful stories of his prowess and adventure. I said, `The fellow impresses me with the truth of his stories, and has interested me intensely.' Possibly I repeated to Childers at the time some of his more characteristic desperate stories. * * *"

Following is the excluded deposition of George Porter: "I was acquainted with James Draper. I became acquainted with him in San Antonio, about the middle of November, 1889. He was engaged as a hack-driver, and hauled me around the town. I had conversations with him. I recollect that we were in front of the Menger Hotel at one time when he related his career as a cowboy in Mexico, and his life in San Antonio, which he represented to be rather a rough one. One of his stories was about whipping a sheriff or deputy-sheriff, and laying him up for six or seven weeks, and throwing a rock through a looking-glass, costing $700, in the fight. His entire demeanor and conversation impressed me with the fact that he was a desperate and dangerous man, and he seemed to take pride in being considered such. It is impossible for me to recollect all the conversations that I had with him in detail. Shortly after the conversation with this hack-driver, Draper, I met the defendant, and he asked me who I was talking to. I told him about the conversations that we had had, that Draper had been telling us some rough stories of his life, and that he impressed me as a very rough character."

A. W. Houston and Wm. Aubrey, for appellant. R. H. Harrison, for the State.

WARD, Special Judge.

This is a conviction of murder in the second degree, with punishment assessed at confinement in the penitentiary for the term of 15 years. A few days before the homicide two men by the names of Porter and Walling pointed out to defendant the deceased, on the streets of San Antonio, as the man who had told them of many exploits of a kind to illustrate his dangerous and desperate character, and of such variety and extent as would tend to cause any person to whom the same were narrated to believe that an assault by deceased would be one calculated to create a reasonable apprehension in the mind of the person attacked by deceased of death or serious bodily harm. Upon the trial the defendant proposed to prove these facts, but the district attorney objected on the grounds of immateriality and irrelevancy. The court sustained the objection, and refused to admit the testimony. The defendant excepted, and reserved a bill of exceptions to this ruling of the court. The facts of this case render this proposed testimony of the greatest importance, and the reporter will insert them in full. If defendant had reasonable grounds for believing, and did believe, Draper (deceased) a dangerous and violent man, he had the right to act on that belief, whether Draper was such man or not. But can the accused establish the grounds for such belief in the manner proposed? He could prove such a character by general reputation, the presumption being that the accused knew of the general reputation. But suppose that in fact the accused did not know of the general reputation of his adversary, certainly his conduct should be judged in the light of the general reputation of his adversary, though ever so bad, for, not knowing such general reputation, his conduct or acts could not in any manner have been influenced or controlled by such reputation. Grissom v. State, 8 Tex. App. 386. In Brumley v. State, 21 Tex. App. 240, it was said by this court: "It is a rule not only statutory, but almost of universal acceptation, that a party may act upon reasonable appearances of danger, and whether it is apparent or not is to be determined from the defendant's standpoint." If the accused had reasonable grounds for believing, and did believe, that the deceased was a dangerous man, the source of his information or belief is altogether immaterial. The law does not permit testimony to be given of the dangerous character of a deceased upon the principle of justification, for it is just as much a violation of law to unlawfully kill a man of dangerous or violent character as to kill a man whose character is that of peace. But such testimony is admissible for the purpose of judging the conduct of the accused from his stand-point, and in the light of all the surrounding facts and circumstances attending the homicide, and as the same appeared to him. In this way alone can you properly determine the motives that controlled and governed his act. If the accused was in fact influenced and controlled by his belief that the deceased was a dangerous and desperate man, what matters it to him whether that belief be occasioned by the general reputation of the deceased, which the accused is only presumed to know, and which in fact he may not know, or whether that belief was generated by the statements of the deceased himself, the question at last being, did that belief exist, and was the conduct of the accused influenced by it? It was the province of the jury to pass upon these questions, and they certainly could not do so unless they were in possession of all the facts and circumstances known to the accused, and which he claimed influenced or controlled his conduct. Mr. Bishop clearly states the rule of law applicable to this question as follows: "Except in capital executions under judicial sentence, no evil in a person, however extreme, will justify or palliate the taking of his life. Therefore proof of the character, conduct, or utterances of the deceased is not ordinarily admissible in trials for homicide. But, as a help to the understanding of motives and purposes, it may be, to a limited extent, in special circumstances now to be explained. Thus where the defendant, to excuse or mitigate his acts, claims that they were in self-defense or passion, the particulars of the transaction being thus material, and the law judging him by the facts and necessities as they appeared to him, whatever they truly were, he may give in evidence anything known to him of the character, prior conduct, threats, or other utterances of the person with whom he was contending, which, not as showing that the man was bad, but that in the special instance and circumstances he was dangerous, might reasonably have place among the considerations guiding his actions." 2 Bish. Crim. Proc. §§ 609, 610. The testimony of the witnesses Porter and Walling was admissible, and the court erred in excluding it.

It appears from the defendant's bill of exceptions that the state introduced and read, over objection and exception of appellant, the testimony of one Ellis, given before Judge KING, on hearing of a writ of habeas corpus, and reduced to writing, and signed by Ellis. The appellant objected to this testimony, on the ground among others, that the same was hearsay, and also objected that a proper predicate had not been laid. Whether a proper predicate had been laid is not a question deemed necessary to be determined here, under the view we take of the case made by the bill of exceptions. The testimony admitted was of a very important character, and very damaging to appellant, and the question is whether it was, in the form in which it was offered such as could be legally admitted at all; or, in other words, is a habeas corpus proceeding an ...