Fuller v. State

• Decision Date: 19 December 1891
• Parties: FULLER v. STATE.
• Court: Texas Court of Appeals

17 S.W. 1108

FULLER v. STATE.

Court of Appeals of Texas.

December 19, 1891.

Appeal from district court, Van Zandt county; FELIX J. McCORD, Judge.

Indictment against D. J. Fuller for murder. Judgment of conviction of murder in the second degree. Defendant appeals. Reversed.

J. C. Kearby, J. G. Russell, and Kearby & Greer, for appellant. Richard H. Harrison, Asst. Atty. Gen., for the State.

WHITE, P. J.

This appeal is from a judgment of conviction for murder in the second degree, the penalty being eight years in the penitentiary. It appears from the record that the defendant had been previously tried and convicted of murder in the second degree, but that judgment had been set aside, and a new trial awarded him.

As a preliminary question, we first propose to notice appellant's contention, which, in effect, was and is that where an accused has been once tried for murder in the first degree and found guilty of murder in the second degree, and said last judgment is set aside, and he is put upon trial a second time for murder in the second degree, if the evidence on such second trial makes out a case of murder committed upon express malice, which is murder in the first degree, then and in that event the accused cannot be convicted of murder in the second degree, because the allegations and proof do not correspond, but that he should be acquitted of any offense, and it would be the duty of the court to so charge the jury. In support of this proposition appellant relies upon the rule as announced by this court in Parker's Case, 22 Tex. App. 106, 3 S. W. Rep. 100. In that case Parker had been convicted of manslaughter, which operated an acquittal of murder in the first and second degrees. On his subsequent trial, a new trial having been awarded, it was held error for the court to charge the jury upon the law applicable to murder in the first and second degrees, though it had instructed the jury that they could not convict of a higher degree of homicide than manslaughter; and, further, that the court erroneously instructed the jury, if they believed from the evidence that the defendant was guilty of either degree of murder, they could find him guilty of manslaughter. The rule thus announced in Parker's Case is unquestionably correct. A party charged alone of manslaughter could not be convicted upon evidence which would show murder, and not manslaughter, for, though manslaughter be embraced in the charge of murder, yet they are two entire, separate, and distinct offenses. Murder is predicable upon malice, either express or implied. Malice is not a constituent element of manslaughter, and manslaughter is predicable upon there being adequate cause occasioning the voluntary homicide. In such a case as Parker's it was clearly radical error for the court to charge as was done. The rule is otherwise as between murder of the first and second degrees, where the party is on trial for murder in the second degree. In McLaughlin's Case, 10 Tex. App. 340, where defendant on his first trial had been convicted of murder in the second degree, he objected on his second trial to all evidence tending to prove the killing upon express malice, or which would tend to prove murder in the first degree. But it is held there that the objection was properly overruled. In the opinion the court said: "It is logically impossible to prove express malice without proving malice, and, if the killing be upon malice, the killing is murder." In Baker v. State, 4 Tex. App. 223, it is held that a defendant on trial for murder in the second degree is not entitled to an acquittal because the evidence against him would sustain a conviction for murder in the first degree. Smith v. State, 22 Tex. App. 316, 3 S. W. Rep. 684. See, also, Powell v. State, 5 Tex. App. 235; Blocker v. State, 27 Tex. App. 16, 10 S. W. Rep. 439. It is no defense to an indictment that the evidence shows that the defendant committed a higher offense than that charged. Com. v. Andrews, 132 Mass. 263. The court did not err in refusing or declining to instruct the jury that they should acquit defendant if they found from the evidence that he had committed a murder of the first degree,—that is, one upon express malice.

Defendant's second bill of exceptions was reserved to the ruling of the court in permitting the witness Zilla Fuller to be recalled after she had been discharged from the witness stand, for the purpose of laying a predicate to impeach her by showing that she had testified to certain facts on a habeas corpus trial differently from what she testified as a witness on this trial. There was no error in this ruling. Harvey v. State, 37 Tex. 365; Treadway v. State, 1 Tex. App. 668. In this connection we will examine plaintiff's fourth bill of exceptions, which shows that the witness Wynne was called to prove the contradictory testimony of the said witness Zilla Fuller, and was allowed to testify over objection that said witness did not testify on the habeas corpus trial that the deceased, Hugh Ingraham, at the time her father shot and killed deceased, was about to shoot her father. The objection to the introduction of this testimony was that no proper predicate had been laid for its introduction, and because the witness Zilla Fuller, when a witness upon the stand, was asked the question if she did not testify on a habeas corpus trial that deceased, Hugh Ingraham, was about to shoot her father at the time her father shot and killed him, and she answered that she did not recollect it. "It is no longer an open question that a witness who testifies that he has no recollection of having made contradictory statements may be impeached by proof of such contradictory statements." Levy v. State, 28 Tex. App. 205, 12 S. W. Rep. 596; Weir v. McGee, 25 Tex. Supp. 21; Johnson v. Brown, 51 Tex. 65; Bressler v. People, (Ill. Sup.) 3 N. E. Rep. 521; Ray v. Bell, 24 Ill. 451; Wood v. Shaw, 48 Ill. 273; Williams v. State, 24 Tex. App. 637, 7 S. W. Rep. 333. The court did not err in either particular mentioned in the two bills of exception.

Defendant's third bill of exceptions was to the admission, over his objection, of the testimony of E. L. Tremble to the effect that on the morning of the homicide, at his house, he had a conversation with the deceased; that deceased told him he had nothing against the defendant; that he wanted to be friendly with him; that he did not appear to be mad or angry with defendant; that he wanted no trouble with him, — to which testimony defendant objected because said defendant had not called for this conversation or any part of it, and because defendant had not been informed of said conversation prior to the homicide, which objection was overruled. We are of opinion that under the rule as now established in this state the evidence was inadmissible. The rule is laid down in Brumley's Case, 21 Tex. App. 222, 17...