Drake v. State

• Decision Date: 01 November 1890
• Citation: 15 S.W. 725
• Parties: DRAKE v. STATE.
• Court: Texas Court of Appeals

15 S.W. 725

DRAKE v. STATE.

Court of Appeals of Texas.

November 1, 1890.

Appeal from district court, Hill county; J. M. HALL, Judge.

Rev. St. Tex. art. 1377, provides: "After the trial of any cause either party may make out a written statement of the facts given in evidence on the trial, and submit the same to the opposite party or his attorney for inspection; if the parties, or their attorneys, agree upon such statement of facts, they shall sign the same, and it shall then be submitted to the judge, who shall, if he find it correct, approve and sign it, and the same shall be filed with the clerk during the term." Article 1378 provides: "If the parties do not agree upon such statement of facts, or if the judge do not approve or sign it, the parties may submit their respective statements to the judge, who shall, from his own knowledge, with the aid of such statements, during the term make out and sign and file with the clerk a correct statement of the facts proven on the trial, and such statement shall constitute a part of the record." Article 1379 provides: "The court may, by an order entered upon the record during the term, authorize the statement of facts to be made up, and signed and filed, in vacation, at any time not exceeding ten days after the adjournment of the term." Code Crim Proc. Tex. art. 776, provides: "A new trial can in no case be granted where the verdict or judgment has been rendered for the defendant." Article 783 provides: "The effect of a new trial is to place the cause in the same position in which it was before any trial had taken place. The former conviction shall be regarded as no presumption of guilt, nor shall it be alluded to in the argument."

Clark, Dyer & Bolinger and W. H. Lessing, for appellant. Asst. Atty. Gen. Davidson, for the State.

WILLSON, J.

This conviction is for murder in the first degree, the penalty assessed being death. It is a second conviction the former conviction having been, on appeal to this court, set aside, and a new trial awarded, because of errors committed on the trial. 25 Tex. App. 293, 7 S. W. Rep. 868. None of the questions presented and determined on the former appeal are involved on this appeal.

Preliminary to other questions demanding our consideration and decision is a question arising subsequent to the trial, relating to the preparation and authentication of the statement of facts. Briefly stated, the facts bearing upon this question are as follows: (1) By an order of court entered upon the minutes, 10 days' time after the adjournment of the court for the term was allowed the parties within which to prepare and file a statement of facts. (2) Within said time counsel for the state and the defendant prepared and agreed upon a statement of facts, and, having signed the same, presented it to the trial judge. (3) The trial judge refused to approve said agreed statement, and instead thereof prepared, certified, and had filed the statement of facts which appears in the record, the same being filed within the time allowed by the order of the court. Counsel for defendant contend that the trial judge had no authority to prepare, certify, and file a statement of facts after the adjournment of the court for the term. Also that the judge's certificate to said statement shows that he prepared said statement without the aid of defendant's statement, and without defendant having had the opportunity of furnishing the judge with a statement. They claim that defendant, without fault on his part or on the part of his counsel, has been deprived of a legal statement of facts, and that for this cause the judgment of conviction should be set aside. With respect to the first objection, that the statement of facts, to be legal, must have been made and filed "during the term," as provided in articles 1377 and 1378 of the Revised Statutes, we are of the opinion that said articles must be construed in connection with article 1379, which article was added in revising the statutes. Where the order provided for by said last-cited article has been made and entered of record, the statement of facts may be made up, certified, and filed within the time allowed by the order in vacation, and said article must be construed as an exception to the rule prescribed in articles 1377 and 1378, requiring the statement of facts to be certified and filed "during the term." The case of Withee v. May, 8 Tex. 160, cited by counsel for defendant, is not applicable, because decided prior to the enactment of article 1379, when the statute in all cases required the statement of facts to be made, certified, and filed "during the term." The same remarks are applicable to the case of Carter v. State, 5 Tex. App. 458. The other cases cited by counsel for defendant — Stephens v. State, 10 Tex. App. 120, and King v. Russell, 40 Tex. 124 — are not applicable to the question under consideration. As to the objection that the judge prepared the statement of facts without the aid of a statement prepared for the defendant, it appears from the certificate of the judge that he had before him and examined the agreed statement of facts while preparing the statement certified to by him. It has not been made to appear that the statement of facts in the record is in any respect materially different from the agreed statement. While the agreed statement may not be a statement furnished the judge by the defendant within the letter of the statute, it certainly was a statement sanctioned and admitted to be true by the defendant; and, in the absence of any showing that the defendant has been deprived of a full, fair, and true statement of the facts, we feel justified in holding, as we do, that in the preparation, authentication, and filing of the statement of facts contained in the record no reversible error was committed.

On the trial, Cunningham, a witness for the state, testified, over the objections of the defendant, that about two minutes after the deceased had been shot by defendant witness asked deceased who had shot him, and deceased answered, in substance, that defendant had shot him; that deceased was about finishing the removal of his furniture from defendant's house, and was sweeping the house, when defendant asked him for his rent; that deceased told defendant that if he (defendant) had acted the gentleman towards him, he (deceased) would have owed him some rent, but under the circumstances he felt that he did not owe him any rent, and that thereupon defendant shot him, (deceased,) and shot him for nothing. We are of the opinion that the above-recited statements of the deceased, detailed by the witness Cunningham, were properly admitted in evidence against the defendant as res gestæ. Warren v. State, 9 Tex. App. 619; Washington v. State, 19 Tex. App. 521; Irby v. State, 25 Tex. App. 203, 7 S. W. Rep. 705; Testard v. State, 26 Tex. App. 260, 9 S. W. Rep. 888.

James Drake, Jr., a witness who testified in behalf of the defendant, was asked upon cross-examination the following question: "On the evening or night of August 27, 1887, the day Guinn was shot by your father, at or near the store of Charles Rast, on Austin street in the city of Waco, Texas, and in the presence of Hugo Robinson, Street Bacon, Bob Fleming and Todd Zeigler, did you not say that you knew your father was going to kill Guinn before you left you father's house that morning?" The witness answered that he had not made any such statement. Thereafter the state proved by Hugo Robinson, Street Bacon, Bob Fleming, and Todd Zeigler that the witness James Drake, Jr., did make the statement set forth in the question, in their presence, at the place and time specified in said question. Defendant objected to the question, and objected to the testimony of the witnesses Robinson, Bacon, Fleming, and Zeigler. His objections to the question, briefly stated, were that if the witness Drake had made such statement it was a mere opinion, was not admissible against the defendant as criminative evidence, and that the question was not permissible for the purpose of laying a predicate to impeach the witness Drake, because it related to a matter collateral to the main issue, and called for a statement which, if made, was a mere opinion of the witness. The objection made to the impeaching testimony was that it related to a matter collateral to the main issue; a matter of opinion, and not of fact. It cannot be questioned that the statement which the witnesses Robinson, Bacon, Fleming, and Zeigler testified was made by the witness Drake was inadmissible as criminative evidence against the defendant. It was not introduced or admitted as criminative evidence, but for the sole purpose of impeaching the credibility of the witness Drake, Jr., and the jury was plainly and emphatically instructed in the charge of the court as to the purpose for which said testimony was admitted, and that it could not be considered for any other purpose. Drake v. State, 25 Tex. App. 293, 7 S. W. Rep. 868. Was it competent to impeach the witness Drake, Jr., in the manner permitted? This same testimony was before this court on the former appeal, but it does not appear from the report of the case that it was objected to on the trial. We presume that the objections now presented to it were not presented on the former appeal, as we find no reference in the opinion to any objection. Our former opinion, therefore, does not answer the question above propounded, and we are now called upon to consider and answer it. "When a witness is cross-examined on a matter collateral to the issue his answer cannot be subsequently contradicted by the party putting the question." Nor is it proper to allow a witness to be cross-examined as to any matter which is collateral and irrelevant to the issue merely for the purpose of contradicting him by other evidence. Whart. Crim. Ev. (9th Ed.) § 484; Rainey v. State, 20 Tex. App. 473; Hart v. State, 15 Tex. App. 202; Johnson v. State, 22 Tex. App. 206, 2 S. W....