Dugan v. State

• Decision Date: 19 December 1917
• Docket Number: (No. 4823.)
• Parties: DUGAN v. STATE.
• Court: Texas Court of Criminal Appeals

Page 616

199 S.W. 616

DUGAN v. STATE.

(No. 4823.)

Court of Criminal Appeals of Texas.

December 19, 1917.

Appeal from District Court, Shelby County; Daniel Walker, Judge.

Tom Dugan was convicted of murder, and he appeals. Reversed and remanded.

Sanders & Sanders, of Center, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.

MORROW, J.

Appellant was convicted of murder, and his punishment fixed at 20 years' confinement in the state penitentiary. He stabbed deceased with a pocketknife, and the issues of self-defense and manslaughter, as well as murder, were raised by the evidence and submitted to the jury in the charge of the court.

When the state rested, and before the appellant introduced any evidence, he filed a written motion or request as follows:

"Here and now, in open court, presents this written motion, and asks the court for the permission, the privilege, and the right of stating to the jury, through his counsel, the nature of the defenses relied upon by the defendant, and the facts which the defendant expects to be proved in their support."

This request was denied by the trial court. Exception was reserved, and in the bill there is embodied a recital of facts which the defendant says he would have stated to the jury through his counsel, had he been permitted. The court in his qualification certifies that the motion was presented in due time and overruled, and that attached to it was a written statement, which we infer is the same as that mentioned above as embodying the facts which appellant desired to present to the jury. The court says that, after reading the motion and the written statement attached thereto, he overruled the motion. His further qualification is that, except that the motion and statement were presented and overruled, and excepted to, he does not verify the statements in the bill, further than to say that the respective theories of the state and the appellant, as developed by the evidence, were conflicting.

The practice of allowing a defendant in a criminal case, preliminary to introducing his evidence, to make, through his counsel, an opening statement outlining his defenses and the evidence thereof, appears to have been followed from time immemorial. Thompson on Trials, vol. 1, § 270, and notes; Bishop's New Crim. Proc. vol. 2, § 968, p. 791. As said in 12 Cyc. 570:

"The proper function of the opening for the defendant is to enable him to inform the court and jury what he expects to prove."

"The purpose of the opening," said Mr. Bishop, "is to put the jury in position to understand and apply the evidence as delivered." The adoption of this practice is in this state made statutory in article 717, C. C. P., subd. 5, from which we quote as follows:

"The nature of the defenses relied upon shall be stated by the counsel for the defendant, and what are the facts expected to be proved in their support."

Subdivision 3 of the same article says:

"The district attorney * * * shall state to the jury the nature of the accusation and the facts which are expected to be proved by the state in support thereof."

It has been held that this subdivision does not require the district attorney to make the statement. In that sense it is directory, rather than mandatory. Holsey v. State, 24 Tex. App. 35, 5 S. W. 523; Poole v. State, 45 Tex. Cr. R. 348, 76 S. W. 565; Bell v. State, 190 S. W. 732. The same is true of subdivision 5, supra. While it says that the statement "shall" be made, it is construed to mean that the accused has the privilege of doing so, but it is not required that it be done. White v. State, 181 S. W. 193. The procedure by which a defendant in a criminal case may avail himself of this privilege is discussed in Owen v. State, 52 Tex. Cr. R. 65, 105 S. W. 513; Meyer v. State, 41 S. W. 632; White v. State, 181 S. W. 193; House v. State, 171 S. W. 206. The right to make an opening statement is founded upon the practice at common law, and even in the absence of the statute is recognized by the English and American courts as a privilege, not to be arbitrarily denied. Wiley v. State, 52 Ind. 421; State v. Bateman, 52 Iowa, 603, 3 N. W. 622; Meyer v. State, 41 S. W. 632; People v. Wilson, 55 Mich. 506. 21 N. W. 905; Thompson on Trials, vol. 1, art. 933; Bishop's New Cr. P. vol. 2, § 968, and notes.

The correct view, we think, is that there rests in the court the judicial discretion to control the statement and limit it to its proper scope, and that when an accused in a timely manner seeks to avail himself of the privilege of making an opening statement, and does not seek to abuse the privilege by commenting upon improper or inadmissible facts, converting it into argument, or otherwise misusing it, it should be accorded, and when its denial, under these circumstances, is properly brought before this court for review, the denial will not be sanctioned. House v. State, 171 S. W. 206.

In this case the appellant appears to have acted upon the suggestion contained in the opinion of this court in White's Case, 181 S. W. 193, and has brought before this court the fact that he sought to avail himself of the statute in a timely manner, that he was refused the privilege, that he advised the trial court of the scope of his proposed statement, calling attention to the fact that the issues in the case were such that it would aid the jury in understanding and applying the evidence, and this matter, including the substance of the proposed statement, is in the bill of exception. The fact that the motion made by appellant was accompanied by a written memorandum outlining his proposed statement did not militate against his right to make it, but, on the contrary, was appropriate in advising the trial court of its scope. We have found nothing in it which condemns it as improper. The court, as above stated, was vested with the judicial discretion to pass upon the proposed statement and the relevancy of the matters of evidence therein suggested, but not with the discretion to deny the privilege of making a proper statement. Thompson on Trials, vol. 1, § 933. We cannot say that the proposed statement would not have been beneficial to appellant in enabling the jury to comprehend his defenses, and apply the evidence thereto.

The homicide appears to have taken place in a sudden quarrel. Appellant's claim is that he was defending his life against three assailants. The deceased was stabbed in two places. One wound was not fatal; the other severed an artery. There is evidence that both were made from a position facing the deceased, whom appellant claims was attacking him with a chair. The pocketknife was not per se a deadly weapon. Its character as such and the intent of appellant were, under article 1147, P. C., questions of fact. The issues were such, we think, as did not justify the trial court in refusing appellant's request to instruct the jury on the law of aggravated assault. Bolden v. State, 73 Tex. Cr. R. 577, 166 S. W. 503, and cases there cited; Huddleston v. State, 70 Tex. Cr. R. 260, 156 S. W. 1168; Polk v. State, 60 Tex. Cr. R. 150, 131 S. W. 580; Hightower v. State, 56 Tex. Cr. R. 248, 119 S. W. 691, 133 Am. St. Rep. 966.

A witness for the appellant gave important testimony in his...