Foster v. State, 21787.

• Decision Date: 22 October 1941
• Docket Number: No. 21787.,21787.
• Citation: 155 S.W.2d 938
• Parties: FOSTER v. STATE.
• Court: Texas Court of Criminal Appeals

155 S.W.2d 938

FOSTER v. STATE.

No. 21787.

Court of Criminal Appeals of Texas.

October 22, 1941.

Rehearing Denied November 26, 1941.

Commissioner's Decision.

Appeal from Criminal District Court No. 2, Dallas County; Henry King, Judge.

Horace Foster was convicted for murder, and he appeals.

Affirmed.

Hughes & Monroe and Sam Donosky, all of Dallas, for appellant.

Chas. A. Pippen, Asst. Dist. Atty., of Dallas, and Spurgeon E. Bell, State's Atty., of Austin, for the State.

DAVIDSON, Judge.

Murder is the offense; the punishment, ten years in the state penitentiary.

Appellant and deceased were tenant farmers of the same landlord. The land assigned to each was of one general tract. There was no definite, fixed or marked boundary line between the tracts to be cultivated by them. Each planted and cultivated, upon the tract assigned to him, the same kind of crop, being that of feed known as "hygeria."

When time came to gather the crop, a difficulty arose between them as to where the boundary between the tracts was located. According to the witnesses for the State, it was the contention of deceased that appellant was gathering the crop of and upon the land cultivated by him. Appellant contended that he was gathering his own crop and that deceased was endeavoring to prevent him from so doing and was about to appropriate a part of his crop or property. The killing occurred as a result of these differences.

According to the witnesses for the State, appellant, without justification or excuse, killed deceased by shooting him with a pistol. According to the testimony of appellant, the killing was in self-defense against the actual attack by deceased, as well as threats. The defensive theory of defense of property also found support in the testimony of the appellant.

The facts are abundantly sufficient to warrant the jury's conclusion of guilt, and, in the light of the record before us, need not be detailed. It was within the province of the jury to accept the State's theory and to reject that of the appellant.

In submitting the case to the jury, the trial court gave all charges requested by appellant, thereby meeting all exceptions reserved to the charge, save and except in the following particular:

The witness Bud Netter testified as an eye-witness to the killing, supporting the State's theory and contradicting the self-defense theories of the appellant. It was shown that, in 1930, or about eleven years prior, this witness had been duly convicted of being a lunatic, under an insanity complaint in the County Court of Dallas County Texas. In obedience to that judgment, he was placed in the state institution for the insane at Austin, Texas, where he remained for about three years. No order vacating or annulling the insanity conviction was shown; nor was there any certificate from the asylum authorities discharging the witness from that institution or certifying that he had regained his sanity. Several witnesses, one of whom was a doctor, testified to facts showing that the witness was presently sane and that he possessed sufficient mentality to testify as a witness. Appellant offered no testimony, nor did he, in any manner, attempt to rebut this proof.

The only objection urged to the testimony of this witness, or to his competency, was by an exception to the court's charge, by which appellant sought to have the jury instructed that, the witness having been found and declared to be a person of unsound mind, by a court of competent jurisdiction, he was presumed to be of unsound mind until the State established, by a preponderance of the evidence, that he was of sound mind.

It will be noted that appellant offered no objection to the testimony of the witness; nor did he, prior to the time the witness was offered by the State and testified in the case, offer any objection to, or challenge, the competency of the witness to testify. Appellant's contention relative the giving of the charge requested could easily be disposed of by us under the doctrine of waiver, by virtue of the rule which provides that an accused may not acquiesce in the admission of evidence by failing to object thereto or to otherwise complain of its introduction, and afterwards complain of that testimony. Farris v. State, 85 Tex. Cr.R. 86, 209 S.W. 665; Land v. State, 93 Tex.Cr.R. 470, 247 S.W. 554; Dunlap v. State, 101 Tex.Cr.R. 239, 275 S.W. 833.

If appellant objected to the testimony of the witness, or to his competency as a witness, he was under the burden of making that known to the trial court; and failing so to do, he, of necessity, waived the right to do so. The charge requested was not an objection to the testimony; nor did it challenge the competency of the witness to testify.

Under the provisions of Art. 708, C.C.P., Vernon's Ann.C.C.P. art. 708, insane persons are precluded from testifying in a criminal case only when "in an insane condition of mind at the time when they are offered as a witness, or who were in that condition when the events happened of which they are called to testify." Under the statute mentioned, the burden is upon the party objecting to the testimony of a witness, because of insanity, to show that the witness is incompetent to testify. Nations v. State, 91 Tex.Cr.R. 112, 237 S.W. 570; Hennington v. State, 101 Tex.Cr.R. 12, 274 S.W. 599; Downing v. State, 113 Tex.Cr.R. 235, 20 S.W.2d 202.

The mere fact that there existed an unvacated judgment adjudging witness to be a lunatic did not render the witness incompetent, nor did proof of such fact meet the burden required by the statute Girvin v. State, 112 Tex.Cr.R. 355, 15 S.W. 2d 643; Downing v. State, 113 Tex.Cr.R. 235, 20 S.W.2d 202; Ebers v. State, 129 Tex.Cr.R. 287, 86 S.W.2d 761. Moreover, the competency of a witness to testify is primarily for the trial court. The undisputed evidence showing the witness to be competent authorized his testifying in the case. Singleton v. State, 57 Tex.Cr.R. 560, 124 S.W. 92. We note, in this connection, that the State's case was not made to...