Fitzpatrick v. State

• Decision Date: 13 January 1897
• Citation: 38 S.W. 806
• Parties: FITZPATRICK v. STATE.
• Court: Texas Court of Criminal Appeals

38 S.W. 806

FITZPATRICK v. STATE.

Court of Criminal Appeals of Texas.

January 13, 1897.

Appeal from district court, Erath county; J. S. Straughan, Judge.

John H. Fitzpatrick was convicted of murder in the second degree, and appeals. Affirmed.

W. A. Wright, Sims & Snodgrass, and W. E. Oxford, for appellant. C. H. Jenkins, J. W. Hill, and Mann Trice, for the State.

DAVIDSON, J.

Appellant was convicted of murder in the second degree, and given 12 years in the penitentiary; hence this appeal.

1. There is nothing in appellant's assignment as to the order of the court changing the venue from Tom Green county to Erath county. The ground urged is that the order does not show that it was done at a regular term of the district court of Tom Green county. It has been held that the transcript for the change of venue need not include the caption, showing the term of court at which the order of change of venue was made. See Wolfforth v. State, 31 Tex. Cr. R. 387, 20 S. W. 741. The law fixing the time of holding the district court of Tom Green county, in force at the time, authorized the said court to be begun and holden on the fourteenth Monday after the first Monday in September, which in the year 1895 came on the 9th day of December, and authorized said court to continue in session until the business thereof was disposed of. The order for the change of venue in this case was made on the 8th day of January, 1896. The indictment was returned into the district court on the 10th day of December, 1895. On this showing of the record, this court will certainly indulge the presumption that the district court of Tom Green county met, as authorized by law, on the 9th of December, 1895, and the session was continued until the 8th of January, 1896, when this order for the change of venue was made.

2. The state insists that the bills of exception in the record numbered from 2 to 7, inclusive, should not be considered, because they were not approved by the judge as required by law, but that they were approved, some 9 days after they were filed, on a separate piece of paper, by the judge who tried the case. This approval filed by the judge was during the term, and within 10 days after the trial was concluded. The judge's approval alludes to each of the bills seriatim, and to a number of them he affixes an explanation before signing. While the statute requires a bill of exceptions to be approved and signed by the judge, we know of no rule of law or decision that requires the bill of exceptions and the approval of the judge to be written on the same sheet of paper. Of course, this would appear to be the more regular procedure, — that each separate bill be signed by the judge. If the bills of exceptions are made out on separate slips or sheets of paper, and afterwards attached and fastened together with pins or brads, in such case we think there would be no question, if the bills of exceptions are numbered and alluded to in the judge's approval, that it would be sufficient approval of each of said bills. The record in this case does not show that said bills and the approval were not so fastened together. The judge's approval rather indicates that such was the fact, as it alludes to each of the bills, inclusive, from 2 to 7, and approves the same. However, we would not be understood as holding, although the bills were not so attached and fastened together, if the judge's certificate of approval referred to and identified said bills as the bills approved and signed by him, though such approval was on a separate sheet of paper, that it would not be a good approval of the bills of exception. We think the maxim would apply here, "Id certum est quod certum reddi potest."

3. While the state's witness John Brown was on the stand, over the appellant's objection, the state asked him the following question: "Did you make this statement on the examining trial? `When the defendant called him [meaning Allen] a lying son of a bitch, Allen said, "I didn't care, if you are standing in together; I did not mean anything."'" To which witness answered, "Allen said, `I didn't mean anything.'" To the question and answer, and before the same was answered, defendant excepted "(1) because the same was leading; (2) not original evidence; (3) not proper to bolster up the statement of a witness by proof of what he had previously testified to." In explanation to the bill, the court certifies "that the witness Brown had omitted the statement complained if in detailing the occurrence. His manner indicated that he was an unwilling witness for the state. State's counsel asked him if his memory had not been refreshed by reading his testimony over to him the night before, and that if he had not then been asked if it was correct, and if he wanted to correct the same by any additions or omissions; and he answered that it had been read over to him with that statement, and he had stated that it was correct. His testimony was then shown him, together with his signature, and he was asked if he made the statement as contained in the bill of exceptions. Upon objection by the defendant's counsel, state's counsel stated that they believed that said witness would answer as stated in his original testimony, and were surprised at his failure to do so; and the court regarded said witness as unfriendly to the state, and that state's counsel did not ask him questions on the stand merely for the purpose of contradicting him, and admitted the question as shown by said bill." The court's explanation that the witness appeared to be unfriendly authorized the court to allow leading questions; this being a matter largely within the discretion of the court. With regard to the use of the record by the state's counsel in the examination of the witness, unquestionably, if this record had been called for by the witness for the purpose of refreshing his recollection about the fact, and the witness could say it would serve such purpose, he would have been afforded the opportunity of examining it. See Hubby v. State, 8 Tex. App. 597; White v. State, 18 Tex. App. 57; 1 Thomp. Trials, p. 364, § 402, subd. 3; State v. Miller, 53 Iowa, 154, 4 N. W. 900. But in this case it appears that the witness was an unfriendly and an unwilling witness, and in such case it was permissible for the court to authorize his being treated by counsel, in the examination, in this respect, as an adverse witness; and, in order to elicit the fact, he could be cross-examined, and means could be used to refresh his memory, and to challenge his recollection of the facts. It seems in this case, on being so refreshed by the record, the witness stated that Allen said, on the occasion in question, that he did not mean anything by saying that the defendant and Harris were standing in together, or in his (Allen) calling defendant a son of a bitch. This, as we understand it, was not stating what he had testified to previously, as corroborative of his testimony then being given, but was the statement of a fact which was pertinent, after his recollection had been refreshed; and this, we think, was legitimate.

4. With reference to the objection to the examination of the witnesses Freland and Brazil, in connection with the record of a former trial, the court's explanation shows that the testimony in connection with this record evidence of a former trial was first brought out by the defendant; and on re-examination by the state, the remainder of said witness' testimony, in connection with that brought out by the defendant, was allowed to be adduced by the state as explanatory of what had been theretofore introduced by the defendant. This, as we understand it, was permissible. And we think it was permissible to show by the witness Brazil, in connection with his testimony (he having already testified as to the relative positions of the defendant and the deceased at the time of the fatal rencounter, and his own position) that he saw no demonstration on the part of the deceased at the time or shortly before the time he was shot; that he was in a position to have seen any demonstration on the part of the deceased, as if to draw or present a pistol, if he had done so; and that he saw no such demonstration. This was a shorthand rendering of the facts.

5. On the trial the defendant was a witness in his own behalf, and, over the objections of the defendant, the state was permitted to prove by him that he had been indicted and convicted for a simple assault upon a man named Harry Farley, and that he had been arrested in the justice of the peace court for fighting with Albert Goss. Defendant objected to this testimony, because these were not convictions for felonies, but are mere misdemeanors, which do not involve moral turpitude. They were not legitimate for the purpose of impeaching the defendant, and could only serve to prejudice the jury against the defendant. We do not deem it necessary to go into a discussion of this question or the authorities bearing upon it. The question is settled in this state that such testimony is not admissible. See Goode v. State, 32 Tex. Cr. R. 505, 24 S. W. 102; Brittain v. State (Tex. Cr. App.) 37 S. W. 758; Williford v. State, Id. 761; State v. Smith (Mo.) 28 S. W. 182; Cobel v. State, 31 Ohio St. 100; Arhart v. Stork (Super. Buff.) 27 N. Y. Supp. 301; State v. Taylor, 98 Mo. 240, 11 S. W. 570.

The further question remains, however, that, notwithstanding this impeaching testimony should not have been admitted, was it of a character, under the record in this case, to injure or impair the rights of the appellant? This involves the question whether or not appellant's testimony as to the facts attending the killing was materially variant or different from that of the other witnesses who testified in this case. All the witnesses, both for the state and the appellant, show that the difficulty which resulted in the homicide occurred over a game of cards. The defendant and the deceased, with one or two other par...