Hardin v. State

• Decision Date: 05 June 1907
• Citation: 103 S.W. 401
• Parties: HARDIN v. STATE.
• Court: Texas Court of Criminal Appeals

103 S.W. 401

HARDIN v. STATE.

Court of Criminal Appeals of Texas.

June 5, 1907.

Appeal from District Court, Hill County; W. C. Wear, Judge.

Richard Hardin was convicted of manslaughter, and appeals. Reversed and remanded.

L. C. Hill and C. F. Greenwood, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.

BROOKS, J.

Appellant was convicted of manslaughter, and his punishment assessed at confinement in the penitentiary for a term of three years.

The state placed the witness Cleavis Wheeler on the stand, over appellant's objection, and proved by him that, about a week after the killing of deceased, he found a pocket knife by the side of the road between the bridge and Burgess's, and that he picked it up, and found it was rusty, and that he carried the knife up to Mrs. Dunn's house, and when he got there he found what he took to be blood on same. Appellant objects to this testimony, on the ground that it was hearsay, and that appellant was not responsible for the loss or finding of the knife, and it was not shown that he ever had possession of it at any time. The court approved the bill, with this statement: "The testimony of each and all the witnesses being fully and correctly shown in the statement of facts, which is here referred to." This bill is not prepared in line with any decision of this court, and we find nearly, if not all, of the bills in this record in the same shape. We are not required, under the rules of this court, to read a whole statement of facts in order to ascertain whether appellant has a bill. Appellant has practically copied the statement of facts in his bills. Much of that copied has no pertinency or relevancy to the points raised. However, there was no error in the ruling of the court. A bill of exceptions should explicitly state the point and explain the ruling of the court, and not be a dull rehearsal of the evidence.

Bill of exceptions No. 2 complains that the state placed the witness Dr. Gilbert on the stand, and, after proving that he was a physician and surgeon, and a graduate of a regular school of medicine, and had experience and knowledge of knife wounds, and was acquainted with the human anatomy, the state asked whether or not a pocketknife, with a blade 2 or 2½ inches long, in the hands of a person weighing from 140 to 150 pounds, and used to cut and stab, in a difficulty, stuck in the breast an inch and one-half from the center of the breastbone in the chest, would be such an instrument as would ordinarily inflict death or serious bodily injury. The reply of the witness was: "I should think so." Appellant objects to the question, on the ground that it was not based upon facts in this case, and not based upon all the facts; that the question itself is illegal and incompetent, and there is no evidence at all as to the force with which the lick was struck; that there is no evidence as to whether the instrument used upon that occasion was a sharp instrument or not. The question was a hypothetical question, and was entirely competent. Certainly a doctor can say whether an instrument of certain length and size, that has inflicted a certain wound, would be a deadly weapon. This proof was in consonance with many suggestions made by this court where a knife was the instrument used in the homicide. Waite v. State, 13 Tex. App. 169.

Bill of exceptions No. 3 complains that the court excluded the testimony of the wife of Walter Hardin, brother of appellant. The bill states, among other things, that Walter Hardin testified, in substance, that he killed deceased. Then appellant sought to prove by his (Walter's) wife facts indicating that Walter Hardin had done the killing. The court sustained exceptions to this. Appellant states in his brief that the state relied for the ruling herein complained of upon the case of Brock v. State, 44 Tex. Cr. R. 335, 71 S. W. 20, 60 L. R. A. 465, 100 Am. St. Rep. 859. The writer thinks that the state properly relied upon said decision, although he did not agree to said decision. However, the majority of the court thinks that the following authorities show that the court was in error in its holding: Dill v. State, 1 Tex. App. 279; Morrill v. State, 5 Tex. App. 447; Daffin v. State, 11 Tex. App. 76; Alonzo v. State, 15 Tex. App. 379, 49 Am. Rep. 207; Cook v. State, 22 Tex. App. 511, 3 S. W. 749; Bluman v. State, 33 Tex. Cr. R. 45, 21 S. W. 1027, 26 S. W. 75; and Dungan v. State, 39 Tex. Cr. R. 117, 45 S. W. 19. The writer hereof agrees to the latter decision as laying down a better rule. It is true that Walter Hardin could have been prosecuted for this offense, but that fact would not preclude the testimony of his wife swearing in his brother's case that Walter Hardin did the killing or swearing to facts indicating that he did the killing. It therefore follows that the court erred in not admitting the testimony of the wife.

Bill of exceptions No. 4 complains that the state, on cross-examination of Walter Hardin, who testified...