Cole v. State
| Decision Date | 21 June 1905 |
| Citation | 88 S.W. 341 |
| Parties | COLE v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from District Court, Brown County; John W. Goodwin, Judge.
Sam Cole was convicted of murder in the second degree, and he appeals. Reversed.
I. J. Rice, Wilkerson & Lee, and Woodward, Baker & Woodward, for appellant. Howard Martin, Asst. Atty. Gen., for the State.
Appellant was convicted of murder in the second degree, and his punishment fixed at six years' confinement in the penitentiary. This case came before us on a former appeal, and was reversed. See 75 S. W. 527, 8 Tex. Ct. Rep. 141. The facts are fully stated in that opinion, and those presented in this record are substantially the same, and we accordingly refer to that opinion for the facts.
Appellant objected to the evidence offered by the state of blood found on the ground near where the homicide was committed; and, further, that the court improperly admitted evidence of the wounds on deceased's body; that there were two holes; and the evidence of another witness that the wound was a large one—that he could stick his two fingers into the hole. Under the explanation given by the court to the effect that this testimony was pertinent to certain issues in the case, it occurs to us there was no error in its admission.
Nor do we think the exceptions taken by appellant to the remarks of the district attorney or counsel for the state, as presented in bills Nos. 3 and 5, show any error.
Bill No. 8 is an exception taken to the action of the court refusing to permit Mrs. Lewis and Mrs. Thompson to state what Mrs. Hudson (wife of deceased) told them at the house of Mrs. Lewis some time before the homicide, to wit: The court explains that all of this testimony was admitted except the last portion thereof, to wit, the threat of Mr. Hudson. Of course, it would have been competent for the defendant to have proven by original testimony—by Mrs. Hudson herself—that deceased had threatened appellant; but this could not be proven by hearsay testimony, such as that offered. Possibly, if Mrs. Hudson had been placed on the stand by the state, and she had been asked about this threat, and had denied it, she might have been contradicted on this subject by the defendant. But such is not the attitude of the question as shown in the bill of exceptions.
We do not think it was relevant to any issue in this case for the state to have proven, as was done, that Mrs. Lewis had two daughters—one married, and that she had left her husband; and one unmarried—and that defendant visited her house sometimes, and on one occasion went with her daughters to church. While this does not appear to have been material to any issue in the case, we fail to see any special injury on account of its introduction to appellant.
We believe it was competent, as shown by bills 11, 12, and 13, and some other bills, for appellant to have shown what he told others about his family trouble, and the acts of deceased in endeavoring to keep his wife from living with him. We believe it was particularly pertinent in this connection to have shown by the witness Baker what occurred between appellant and himself some time prior to the homicide with reference to getting a writ of habeas corpus in order to secure the custody of his wife, or to take her away from her father's house. All this testimony was objected to on the ground that it was self-serving. It does not occur to us that it was made to serve any purpose appellant then had in view; certainly not with reference to the slaying of deceased and fabrication of testimony against such event. On the contrary, it shows, as we take it, an earnest effort on the part of appellant to get his wife away from the control of her father; and it shows a belief on his part that her father was endeavoring to separate them; and it shows in this respect the condition of appellant's mind at the time, which has an important bearing on the case as made by the state against him. The state's case tends to show that deceased was kindly disposed toward appellant, and he had no desire to separate appellant's wife from him. Poole v. State (Tex. Cr. App.) 76 S. W. 565.
Appellant insists that the court committed an error in rejecting evidence on the part of appellant to the effect that some time before the homicide he went to the town of Coleman with his father-in-law, and that his father-in-law's mission was to ascertain if he had been indicted for improperly rendering his taxes; that his father-in-law on their return home stated that the tax assessor had not indicted him; that, if he had indicted him, he would have killed him, or words to that effect. Appellant relied on self-defense, because of an attack on the part of deceased at the time of the homicide, and his apprehension of danger in that connection. The doctrine seems to be that under such circumstances appellant has the right to have in evidence any fact which tends to prove the bona fides of his belief that he was in danger. In that respect he can rely on proof of the desperate character of his adversary, or on proof of some special act or communication by deceased to him, which indicates his dangerous character. Childers v. State, 30 Tex. App. 193, 16 S. W. 903, 28 Am. St. Rep. 899; Dodson v. State (Tex. Cr. App.) 70 S. W. 969. However, we do not believe it was competent to show that deceased could have told appellant on one occasion that he had run away from East Texas, and that he had a great deal of trouble with officers, and it cost him a good deal to get out of it, as it is not shown what this trouble was.
It occurs to us that the two letters offered by appellant in evidence, written by him from San Angelo to his wife, who was then at her father's, in April, 1902, were admissible in evidence. On the former appeal we held that the letters of appellant's wife written about the same time to him were admissible as showing their domestic relations; that they were affectionately inclined to each other. This was in rebuttal of the state's case that the relations were not friendly; that appellant was unkind to his wife. Now, it occurs to us that, if his wife's letters were admissible, by a stronger reason his own letters were admissible. They serve to show directly his affection towards his wife, his dissatisfaction at her living with her father, and his desire to have her come and live with him; and in this connection his idea that his father-in-law did not want him about him, and did not want his daughter (appellant's wife) to leave his roof. We note the court explains that these letters offered do not seem to be in response to any letters of his wife to him. It does not occur to us that their admission would depend on their being responsive, unless it could be said that his wife's letters having been introduced, and his in response thereto being a part of the same transaction, should also be admitted on that account. We believe they were admissible on another principle— that they were not self-serving; that they were in rebuttal of the state's case on an important feature thereof, and served to show defendant's state of mind with reference to his wife and his father-in-law at that time.
Nor do we think it was proper, as was done, to permit the state to prove that appellant during his confinement in jail was engaged in studying law. Not that the study of law should at any time be the subject of censure, but the peculiar use which the state made of this fact before the jury was calculated to injure him. It must be admitted that among certain classes there is an antipathy to lawyers. Whether this is well or ill founded is not the question. But this is not the serious matter complained of here. It is that counsel used this testimony to show that appellant was engaged in the study of law in order to enable him to fabricate a defense to the prosecution. The testimony was not relevant or pertinent to any issue in the case, and the use of it was calculated to injure appellant.
On the former appeal we held that the testimony of certain witness regarding the physical condition of deceased shortly before the homicide was inadmissible. It appears that on this trial some of this same testimony, to wit, that of Mrs. Hanks, was admitted to the effect This testimony was objected to on the ground that said witness was a nonexpert, and her testimony was a mere opinion, except as to the sink in his side; and...
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