Greenwood v. State

• Decision Date: 01 January 1871
• Citation: 35 Tex. 587
• Parties: P. H. GREENWOOD v. THE STATE.
• Court: Texas Supreme Court

35 Tex. 587

P. H. GREENWOOD

v.THE STATE.

Supreme Court of Texas.

1871.

1. The district court cannot, in every criminal case, be expected to give in charge to the jury every principle of law which might have application to the facts. Unless requested, therefore, to give a particular instruction to the jury, the omission to do so is not error.

2. Indictment for assault with intent to murder, charged that the accused unlawfully and feloniously made an assault upon one H., and that the accused, “a certain pistol, then and there charged and loaded with gunpowder and divers leaden bullets, in his right hand then and there had and held at, to, against and upon him, the said H., and then and there did attempt to shoot the said H., with the unlawful intent,” etc. Held, that these allegations charge that the assault was coupled with an ability to commit the offense.

3. On the second trial of the accused upon this indictment for assault with intent to murder one H., the state was permitted to show that H. had died since the previous trial, and then to prove by a witness the testimony borne by H. as a state's witness upon the previous trial. Held, that although there are many authorities against the competency of such evidence in criminal cases, yet the great preponderance of judicial decisions, in both England and America, now concurs with the better reasoning in holding that such evidence is competent and admissible as well in criminal as in civil causes. And held further, that it is not necessary to prove the precise language used by the deceased witness in his testimony; the substance of his entire testimony is sufficient, and may be stated in different language than that employed by him. (See the opinion for a brief review of the authorities on this important question.)

4. The object of all evidence is to elicit the truth, in order that the court and jury may be enabled to administer strict and impartial justice; and this end necessitates the admission of evidence to prove what a deceased witness testified at a former trial, when confronted with the court, a jury, and the parties, and subject to a cross-examination. Therefore the ruling now made, establishing the competency of such evidence, is believed to be one of humanity as well as justice, and to be especially conducive to the protection of defendants in criminal cases, whose lives or liberty often depend upon the knowledge of a single witness.

5. Repeated decisions of this court have already established the right of counsel for the state to cross-examine the wife of the accused upon the statements made by her in her examination-in-chief as a witness for her husband.

APPEAL from Rusk. Tried below before the Hon. J. B. Williamson.

The opinion of the court indicates the character of this case, and discloses such facts as are relevant to the rulings.

J. H. Jones and D. Field, for the appellant. The indictment in this case is clearly bad, because it does not charge that appellant had the ability to commit a battery; and as it is not alleged in the indictment that appellant did commit a battery, it became necessary to allege that he attempted to commit a battery, and had the ability to commit a battery, and this the indictment fails to charge. See Pas. Dig. art. 2137. And this being a substantial defect could not be cured by proof. The motion to arrest the judgment should have been sustained, and the indictment quashed.

The fourth error involves the ruling of the court in admitting the testimony of James Hampton, deceased, who testified on a former trial of this case, and who died before this trial. The state offered to prove what James Hampton testified in this case, on a former trial, which was objected to by appellant, because it was hearsay, because it was illegal, and because the appellant must be confronted by the witness. The evidence is certainly hearsay, and is not involved in either of the exceptions which are allowable as evidence at common law or our statute.

It is illegal, because it is in point-blank violation of the constitution of the state of Texas (see Pas. Dig. art. 2472), and in violation of art. 2490, Pas. Dig. which gives the rule and the exception to it. The appellant was not confronted by the witness, James Hampton. James Hampton was dead, and spoke through another, who could not feel any of the embarrassment, and who could not exhibit the feelings of James Hampton, if Hampton were swearing falsely in the presence of the accused. The jury are not restricted to the utterances of the witness, but they may consider his manner of testifying, and the state of feeling exhibited by the witness toward the accused, in estimating his evidence and determining its weight. Again if James Hampton did swear falsely on the first trial, he might, had he lived, have repented and testified truthfully on the second trial, and have acquitted the appellant. Again, the witness Lasseter gave the substance of James Hampton's evidence as he recollected it. May he not have erred in his recollection of Hampton's evidence? Again, Lasseter may have expressed his recollection of Hampton's evidence in a manner to make it more direct and convincing than it was when uttered by Hampton. The authorities admonish us that such testimony should be received with great caution in civil cases. And we submit that it should not be received at all in criminal cases, according to the authority and for the reasons above referred to and stated.

William Alexander, Attorney General, for the state.

OGDEN, J.

The defendant was indicted and convicted of an assault upon one James Hampton with intent to kill and murder. The charge of the court upon the trial of the case was, so far as it went, a correct enunciation of the law applicable to the facts of the case. It cannot be expected that a court, in every criminal case, will or should give in charge to the jury every principle of law which might be applied to facts of the particular case, and the omission to give a particular charge is not such an error as would require a reversal of the judgment, unless the court, upon being asked by a party to give certain charges, has refused to do so. O'Connel v. The State, 18 Tex. 363.

The objections raised to the indictment were correctly overruled by the court, especially the exception that the indictment does not charge the assault to have been coupled with ability to commit a battery. The indictment does charge that the defendant did wilfully and maliciously attempt to shoot, kill and murder the said James Hampton. We think the indictment charges an assault sufficiently definite, and it was a question of fact whether the charge should be sustained or not.

There is, however, a more serious question presented by counsel for appellant in the fourth assignment, which...