Cornelius v. State

• Decision Date: 10 June 1908
• Citation: 112 S.W. 1050
• Parties: CORNELIUS v. STATE.
• Court: Texas Court of Criminal Appeals

112 S.W. 1050

CORNELIUS v. STATE.

Court of Criminal Appeals of Texas.

June 10, 1908.

Rehearing Denied October 21, 1908.

Appeal from District Court, Donley County; J. N. Browning, Judge.

H. T. Cornelius was convicted of manslaughter, and he appeals. Affirmed.

Veale & Crudgington, A. T. Cole, and Jno. J. Hiner, for appellant. F. J. McCord, Asst. Atty. Gen., H. S. Bishop, Dist. Atty., C. B. Reeder, and H. H. Cooper, for the State.

BROOKS, J.

Appellant was convicted of manslaughter, and his punishment assessed at five years' confinement in the penitentiary.

1. Bill of exceptions No. 3 complains that the state was permitted to prove by Dr. G. T. Vinyard the following: "Q. From the examination you made there, what is your best judgment as to the entrance and range of that bullet? Appellant's Counsel: We object to that. Let him state the facts, and let the jury draw their conclusions. The Court: Did he state he passed the probe clear through the entrance to the exit? A. No, sir; I passed it up from the entrance wound. After it got up so far it could have been passed any other way on account of the lung tissue. Q. What was the direction of the track of the bullet? What I want to get at is, what was the range of that bullet from the place where you begun to probe from the entrance wound, with reference to the exit? (Appellant objected on the ground that it was a conclusion.) The Court: That is a matter for the jury to pass upon, and I will admit the testimony. A. The range of the bullet from where I begun to probe from the entrance wound was upward and to the right, and was in the direction of the exit wound"—"to which said last question and answer the defendant objected for the reason, first, that it was but the opinion of the witness on a matter, not the subject of expert testimony; second, the witness had shown by his first answer to said question that the direction from whence said bullet came was speculative and uncertain, had for its object the relative position of the parties, he could only state actual conditions and not leave the impression from the manner and verbiage of his answer as to what his opinion was, as to the relative position of the parties." We see no objection to this testimony. The witness appears to have been a physician. The court does not certify that he was not an expert on gunshot wounds, and hence the bill to that extent is defective. While it is true appellant objects to same on the ground that he is not an expert, yet an objection is not a statement of a fact. Furthermore, the testimony, under no viewpoint, as we understand it, could be hurtful in this case.

2. Bill of exceptions No. 4 shows that the state placed A. M. Works, Jr., the official stenographer of said court, upon the stand, and after proving by him that he had reported the two former trials of this cause in the district court of Potter county, and after proving by said witness that he had transcribed the notes of the defendant's testimony given at the first of said trials, and after testifying that such transcription was a correct statement of the testimony of said witness Cornelius, thereupon the witness was permitted to state various things that the defendant testified on a former trial, to all of which appellant objected on the ground that it was not shown that the paper from which the witness was reading had ever been signed by the defendant as a signed statement, that no testimony whatever was offered to show that the defendant had admitted to any person that such question and answer had been asked him and answered by him as stated in said document, and that it was not shown that he had at any time admitted the correctness of said question or answer. The bill is approved with this explanation: "This witness testified on his voir dire examination that he was a competent and experienced stenographer, that he had been the official court reporter for this judicial district for the last two years and was still occupying said position, that he was present and acting as official stenographer and reporter for the district at a former trial of this cause in Amarillo and heard the defendant testify in his own behalf at said trial, that witness took stenographic notes of the testimony of defendant at said trial and that he knew he had taken the testimony correctly, that he transcribed his notes of said defendant's testimony correctly and knew that it was a correct statement of defendant's evidence, but as to some of the testimony shown in the bill he had no independent recollection of it." There was no error in admitting the stenographer's notes to be introduced as above pointed out. This question has been decided by this court adversely to appellant's contention. See Casey v. State, 50 Tex. Cr. R. 392, 97 S. W. 496, 17 Tex. Ct. Rep. 169, and Stringfellow v. State, 42 Tex. Cr. R. 588, 61 S. W. 719.

3. Bill of exceptions No. 5 shows that while the witnesses Mrs. George Highfill, wife of deceased, Frank Harrington, and R. D. Wilson, were on the stand, in behalf of the state, the court, over appellant's objection, permitted each of said witnesses to testify that the deceased was an inoffensive, quiet man and peaceable citizen, of a kind and inoffensive disposition, to which testimony on the part of each of said witnesses the defendant in open court objected for the reason that said testimony was offered for the purpose of proving the character and general reputation of deceased as being a violent, dangerous man or a man of quiet disposition, when such issue had not at that time nor any other time during the progress of the trial been raised by the defendant, and deceased's character had not been attacked. The court overruled the objection for the reason that he permitted it to go before the jury on the issue of threats alleged to have been made by deceased against the life of defendant, as raised by the testimony offered by the defendant. This bill is approved with this explanation: "The defendant had offered testimony of numerous threats made by deceased against the life of defendant, some of which are shown to have been communicated to defendant and some were not. After the defendant had rested his case the state offered the testimony of the above three witnesses in rebuttal, and this evidence was admitted under authority given in article 713 of the Penal Code, and was directly in rebuttal to said evidence of previous threats of deceased." Said article justified the court in the ruling complained of. Arnwine v. State, 50 Tex. Cr. R. 254, 96 S. W. 4.

4. Bill of exceptions No. 6 shows the following: After the state had introduced the witness Burwell and he had testified, appellant presented the court the following motion: "Now comes the defendant, by his attorneys, and moves the court to exclude from the consideration of the jury the testimony of the witness W. M. Burwell concerning the statements made by defendant to Highfill on the morning of the killing and immediately preceding the killing, for the following reasons, to wit: First. The defendant in this case is on trial for manslaughter only, he having been acquitted of murder, and said testimony does not raise, or tend to raise, or support the charge or issue of manslaughter. Second. Because said testimony raises, and tends to raise, only the issue of murder of the first or second degree only, and not manslaughter, the charge upon which defendant is now upon trial, and same tends to and does prejudice the rights of the defendant before the jury, and does not support or tend to support its charge for which he is now upon trial, but does tend to show that, if guilty at all, he would be guilty of murder, an offense of which he has already been acquitted by the jury in a former trial of this cause." This bill is wholly defective. It does not state what the witness Burwell testified to. Under the rules of this court we are not permitted to look at a statement of facts, unless the bill refers to the statement of facts to complete or make perfect a bill of exceptions. Reasons for objecting to testimony is not stating that said testimony is subject to objections made. In other words, in order for this bill to be complete, it will be necessary either for the testimony complained of from the witness Burwell to be embodied in the bill, or for the bill to refer to the testimony of Burwell in the record before us. Neither was done. Therefore, in the shape this bill is presented, there is no error authorizing this court to review said testimony.

5. Bill of exceptions No. 7 complains that the court erred in not excluding the testimony of H. A. McDonald for the same reason urged in the testimony of the witness Burwell; but the bill is defective in the same particular complained of in bill No. 6, in that it does not state what the testimony of the witness McDonald was. Bill of exceptions No. 8 is in the same condition and complains of the failure of the court to exclude the testimony of A. M. Works.

The question attempted to be covered by appellant's bill of exception, which we hold is defective, is, however, properly raised by bill of exceptions No. 12. This bill complains that the court erred in failing to give the following charge to the jury: "The defendant requests the court to charge the jury to return a verdict for the defendant, and acquit him, for the reason that the testimony does not raise nor tend to raise—does not support nor tend to support—the charge of manslaughter against him, he being on trial herein for that offense." Appellant in this case had on a previous trial been acquitted of the two degrees of murder, and upon this trial was convicted of manslaughter, and his insistence, as stated in the bill, is that, the evidence showing nothing but murder in the first or second degree, he is entitled to an acquittal, and cites us to the cases of Parker v. State, 22 Tex. App. 105, 3 S. W. 100, and Fuller v. State, 30 Tex. App. 559, 17 S. W. 1108. This question has...