Earles v. State

• Decision Date: 20 November 1907
• Parties: EARLES v. STATE.
• Court: Texas Court of Criminal Appeals

106 S.W. 138

EARLES v. STATE.

Court of Criminal Appeals of Texas.

November 20, 1907.

Rehearing Denied December 18, 1907.

Appeal from District Court, Ellis County; F. L. Hawkins, Judge.

Walter Earles was convicted of manslaughter, and he appeals. Affirmed.

J. T. Williams, for appellant. F. J. McCord, Asst. Atty. Gen., and Richard Mays, for the State.

BROOKS, J.

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

This case has been appealed to this court twice before this appeal. The former opinions in the case will be found in 85 S. W. 1, 12 Tex. Ct. Rep. 267, and 94 S. W. 464, 16 Tex. Ct. Rep. 223, respectively. For a statement of the evidence, see the former opinions.

Bill of exceptions No. 1 shows that the state was permitted to prove, on cross-examination of Roy Canady, that after deceased Maddux arrested appellant they went off peacefully without any trouble. Appellant objected to this testimony on the ground that it was immaterial, and a conclusion of the witness. The appearance of appellant as to whether he was angry or not is legitimate matter for inquiry, and it is not an opinion of the witness to testify to same. Bill of exceptions No. 2 complains, in substance, of the same character of testimony. Bill of exceptions No. 3 complains of the following: On cross-examination of appellant he was asked the following questions: "Q. You say that you were on your way from Wortham to Dallas? A. Yes, sir. Q. What did you stop at Corsicana for? A. Just simply because I had decided I would stop off there until Monday morning. (Appellant's counsel: I urge this objection to that: I don't believe it is material to state why he stopped off in Corsicana. The Court: Witness has answered the question. Appellant's counsel: Well, I object to any further examination on that question.) Q. Well, what did you stop there for? (Mr. Williams: I make the objection. The Court: I overrule the objection. Appellant's counsel: I except to the ruling of the court.) Witness: Well I told you while ago I stopped because I decided I wanted to stop off there and decided to stay until Monday morning. I struck up with some parties I had been very good friends with and had not seen them for some time, and stopped over there until Monday." We can see no possible objection to this testimony under any phase of the law of this state. If appellant stopped off for an innocent purpose, which he testifies he did, it could not possibly hurt him. If he stopped off for an illegal purpose, it might have been legitimate testimony in the trial of this case; not necessarily so, however, but clearly in the light of this bill there could have been no injury to appellant.

Bill of exceptions No. 4 shows that while appellant was on the stand counsel for the state, on cross-examination, asked him the following questions: "Q. How many times had you been to the oilmill to see Batson? A. Why I was down there two or three times that day. Q. You had your pistol down there with you? A. Down there at the mill." Appellant's counsel objected on the ground that it is immaterial whether defendant had a pistol and was carrying it at the oilmill, which objection the court overruled. This bill is wholly defective in that no answer of the witness is shown by the bill. We will not look at the statement of facts to see what his answer was. The bill must be complete.

Bill of exceptions No. 5 shows the following: Appellant's witness T. W. Hoskins was placed upon the stand, and the following questions propounded to him: "Q. Do you remember having a conversation with Mr. Grantham, right after the jury had received the instruction of the court and they had retired, a short while after that?" The state objected on the ground that it was immaterial. Appellant's counsel: "They asked him (Grantham) that question and drew it out and wanted to know how it got to me. The Court: The question is now, you propose to prove by this witness what Grantham told him? Mr. Williams: Yes; and how we got on to Grantham's testimony." The objection was sustained. The bill is approved with this statement: "There was and had been no attempt by the state to show that Grantham did not have a talk with Hoskins, to which he had testified." There certainly could have been no error in the ruling of the court.

Bill of exceptions No. 6 shows that the state's witness Bradley was asked if the pistol used by Earles was a deadly weapon, and witness answered that it was a very deadly and dangerous weapon. The court approved the bill with the statement that the witness had testified that he was a deputy sheriff and had been for a long number of years; that the pistol in question was a 38 caliber, long barrel, and then answered as shown in the foregoing bill. There was no error in the admission of this testimony.

Bill of exceptions No. 7 complains of the following testimony of the witness Ricker: "I observed the arrest of Earles by deceased. He went straight on with him. Never made any halt. The morning of the arrest deceased was on duty with me. The chief of police saw deceased and I together that morning, and made a statement to us in reference to making an arrest of appellant. He instructed us, if we found Earles that day, to arrest him for disturbing the peace. I don't remember that he said anything about him carrying a pistol. I had no conversation with deceased before the chief of police instructed us to arrest Earles. I had a conversation with deceased after that, about 9 o'clock. We had left the city hall, going up town. After our conversation with the chief of police deceased did not say what he wanted Earles for. He was just talking about the description of Earles. Neither one knew him, and he remarked then that he had been told that appellant had a pistol; that John Nutt had told him that morning. He did not say whether he wanted to arrest him for carrying a pistol or what. He did say that he had been told that he had a pistol."

John Stewart, a witness for the state, testified that he was city marshal of Corsicana. "On the morning of the day that Maddux was killed, in response to a request, I went out to Dean's house. When I returned to the city hall I gave instructions to Ricker and Maddux, policemen, on day duty at that time, to arrest appellant if they met up with him. I told them they could get him for two offenses, one for disturbing the peace, and one for carrying a pistol. I told them he had a pistol on. There was no warrant for the arrest of appellant, nor any complaint filed in the city court." This testimony was clearly admissible. It does not come within the rule of third parties talking out of the presence of appellant, invoked by appellant for its exclusion in this case. It is proper and incumbent upon the state to show a basis for the legal arrest, and if the deceased had been informed, as this witness testifies, that appellant had a pistol, or had been carrying a pistol, he had a right to arrest without a warrant.

Appellant objects to the testimony of W. M. Ellis and J. W. Gillispie on the ground that same was not in rebuttal. The bill does not state what they testified to, and hence is defective. The sheer fact it was not in rebuttal would not make it inadmissible if it was introduced before the trial terminated. The court says that the testimony was in contradiction of testimony offered by appellant. We find no error in the ruling of the court.

Bill of exceptions No. 9 shows the state's witness Bradley testified as follows: "I met deceased at Kiber & Cobbs' corner, and had a conversation with deceased about defendant. Q. Did he (deceased) tell you in that conversation on said corner that he wanted to arrest Earles? A. Yes; said he was hunting him. Q. Did you tell deceased that you wanted Earles also? A. Yes. Q. Did you tell deceased in that conversation what you wanted Earles for? A. I did not." Appellant objects to this testimony on the ground that it was a conversation between two officers in the absence of appellant, and was hearsay, and not a part of the res gestæ. We do not think there was any error in the ruling of the court. At least it was harmless.

Bill of exceptions No. 10 shows that the state's witness C. W. Taylor testified that he saw Mr. Sutherland, the undertaker, insert a probe into the wound in the body of deceased after he was dead. The wound was on the left side of the body. He could not swear whether he followed the course of the bullet or not. "I was not watching him when he found the direction he afterwards told me about. The undertaker entered a metal probe a little thicker than a pencil, about 8 or 10 inches long, sharp at one end. He worked in the wound with that probe for three or four minutes. I was watching him. He was trying to find the direction of the bullet. After he had worked two or three minutes, he did not find the direction the bullet had taken. I stepped around on the other side of the body, and presently he called to me, and I went around to the other side of the table, and he was then pushing the probe clear into the body perfectly easy." The defendant then offered to prove by said witness what angle said probe was working, whether straight in or to the side; the state's contention being that Maddux was shot...