Harris v. State

• Decision Date: 07 January 1893
• Citation: 20 S.W. 916
• Parties: HARRIS v. STATE.
• Court: Texas Court of Criminal Appeals

20 S.W. 916

HARRIS v. STATE.

Court of Criminal Appeals of Texas.

January 7, 1893.

Appeal from district court, Shelby county; GEORGE F. INGRAHAM, Judge.

Prosecution of William Harris, Jr., for murder. Defendant was convicted, and appeals. Affirmed.

Davis & Garrison, J. H. Truitt, and F. L. Johnson, for appellant. R. L. Henry, Asst. Atty. Gen., for the State.

SIMKINS, J.

Appellant was convicted of murder in the first degree, and his punishment assessed at imprisonment for life in the penitentiary, from which judgment he appeals.

There are four errors assigned which it will be necessary to consider.

1. That the court erred in permitting certain witnesses to testify as to the motive, malice, and threats of Fayette Harris against Jo Shields, the deceased, as shown in the bill of exceptions. On the night of January 28, 1892, between 9 and 11 o'clock, Jo Shields, a young man, residing with Mrs. Pierson, an old lady 70 years of age, and living in Shelby county, was taken out and hung. The state, to show motive for the crime, proved the acts and declarations of Fayette Harris, a codefendant, against the deceased, extending back for a year before the trial. The defense objected to this testimony, upon the ground that only those acts and declarations of a codefendant were admissible against defendant which transpired during the existence and in pursuance of a conspiracy, and not before or after it. The acts and declarations of Fayette Harris occurring long prior to the formation of the conspiracy were introduced by the state, and duly excepted to in 15 bills of exceptions. Like many other propositions of law, the rule is definite, (Roscoe, Crim. Ev. 416; Whart.Crim.Law, 702,) but its application is generally a question of difficulty. It has been frequently before this court. Krebs v. State, 8 Tex. App. 1; Preston's Case, Id. 35; Crook's Case, 27 Tex. App. 240, 11 S. W. Rep. 444; Jim Smith's Case, 21 Tex. App. 102, 17 S. W. Rep. 552; M. Smith's Case, 21 Tex. App. 120, 17 S. W. Rep. 558; Pierson's Case, 18 Tex. App. 556; Thompson's Case, 19 Tex. App. 595. In an early case (Cox's Case, 8 Tex. App. 254) this court held that the old rule that a conspiracy must first be established before the acts and declarations of individual conspirators are admissible against each other is now exploded. Such a rule cannot be invoked "where the proof depends on a vast amount of circumstantial evidence, and a vast number of isolated and independent facts." The time when a conspiracy is entered into is often a disputed fact, and must then be submitted to the determination of the jury, under instructions to disregard any act or declaration not occurring during the existence of the conspiracy. Under this practice, this court, from the very necessity of the case, cannot reverse because of proof of the conduct of one or more conspirators that may have preceded the conspiracy. Still less would it be inclined to reverse in cases like the one at bar, where the objectionable testimony went to prove the same fact which was otherwise shown by competent testimony. Thus it is shown by legitimate testimony that Fayette Harris bore a bitter animosity to the deceased up to the day of his death. The testimony objected to simply proved that the animosity extended back a year prior to the homicide; that it was a matter of public notoriety; that defendant knew of and sympathized with it; and that his presence at the homicide was consistent with his feelings. There is no question that the homicide was the result of a conspiracy deliberately planned and consummated. The question in this case was whether the defendant was present at the homicide. By his own testimony, the timony of Mrs. Fayette Harris and Waller, and his own repeated declarations, defendant was with Fayette Harris from 8 until 11 on the night of the homicide. It was in this interval of time that Jo Shields was murdered. If, then, Fayette Harris was present, so was defendant. For obvious reasons, therefore, it devolved upon the state to establish the guilt of Fayette Harris. It sought to do so by proof of a long-existing hatred and jealousy, of repeated deliberate preparations to kill the deceased, and of an actual attempt to do so, and finally by the evidence of a witness to the homicide. It was evidently the theory of the state that Fayette Harris, the uncle of the defendant, was the instigator of the whole matter; that, fearing that Jo Shields would get a large share of Mrs. Pierson's property if he continued to live with her, he (Harris) first tried to get her to discharge deceased, and failing in that, he began a systematic plan of trying to turn the whole neighborhood against him, and had succeeded in getting a mob of six or eight to assist him in carrying out his plan to murder. The primary question, then, being the guilt of Fayette Harris, neither reason nor common sense required that evidence tending to prove that guilt should be excluded; but, as has been well said, "when a foul assassination like this has occurred, and the circumstances attending it are shrouded in mystery, the command of the law is, `Turn on the light.'" In the case of Smith v. State, 21 Tex. App. 102, 17 S. W. Rep. 552, this very question was presented. It was objected that defendant in that case could not be bound by the acts and declarations of one whom the state claimed to be the originator of the conspiracy, occurring before there was any conspiracy formed. This court held that, though no conspiracy in fact existed, the testimony was admissible to show the guilt of the originator, and then the state could prove defendant's connection therewith. We see no error in admitting the testimony, especially as it was duly guarded by the charge of the court.

2. Defendant complains that the court erred in not properly guarding the defendant's interest in his charge, but allowed the jury to consider any act of the codefendants, without regard to the beginning or end of the conspiracy, in determining defendant's guilt. An examination of this charge will not sustain this contention. The court charged substantially that, where a conspiracy was entered into between two or more, the acts and declarations of each in regard to the common purpose are the act and declaration of all; and, when one enters into a conspiracy already formed, every act done by the others, before his entry or afterwards, in pursuance of the common design, and until its consummation, is the act of the one so entering. If the jury believes, beyond a reasonable doubt, that Harris and others formed a common purpose to kill deceased, and defendant entered into the conspiracy at any time before the death of Shields, "the acts and declarations of the conspirators" made and done in pursuance of the common design after said agreement was entered into by Fayette Harris and others, and before the killing of Shields, were admissible against defendant; but, if defendant did not enter into such conspiracy, they should disregard such testimony in passing on defendant's guilt. Appellant objects to the latter portion of this charge on the ground that the court should have charged that, if defendant did not enter into the conspiracy before the death of Shields, they should acquit defendant. It is to be observed that the court was charging upon the consideration of certain testimony then before the jury, admitted by the court upon the theory of a conspiracy, and the court was simply telling them that, unless the defendant entered into the conspiracy, they could not consider the testimony for any purpose. And in that point of view the charge was correct. Upon the question of defendant's guilt, the court charged that, if the jury had a reasonable doubt of defendant's presence at the time and place of the homicide, they should acquit him, and this was sufficient.

3. Appellant complains that the court erred in not permitting him to prove the ill feeling and threats of Ardis Page and others against deceased. Conceding that the court should have permitted this testimony, we cannot see how it would have benefited the defendant. The fact that Ardis...