Hatcher v. State

• Decision Date: 22 June 1901
• Citation: 65 S.W. 97
• Parties: HATCHER v. STATE.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Criminal Appeals

65 S.W. 97

HATCHER v. STATE.¹

Court of Criminal Appeals of Texas.

June 22, 1901.

Appeal from district court, Fannin county; Ben H. Denton, Judge.

Charley Hatcher was convicted of murder in the first degree, and appeals. Affirmed.

J. L. Carpenter and Thos. P. Steger, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of murder in the first degree, and his punishment assessed at confinement in the penitentiary for life; hence this appeal.

Appellant assigns as error the action of the court in overruling his motion for continuance. There being no bill of exceptions presenting this error, the same cannot be considered.

He also complains of the action of the court in admitting the evidence of Ude Cude. It appears from the bill of exceptions that appellant and Ude Cude were confined in jail in the same cell, defendant being incarcerated on this charge, and Cude for another offense; and the state was permitted to prove by Cude that, while they were so in jail together, appellant proposed to him to swear to facts on his behalf constituting an alibi, and that he would do as much for witness when his case came up for trial. The bill further shows that the only warning given appellant was when he was arrested in Mississippi by the officer who went after defendant, which was on the 11th of January, 1901. The bill does not show when the statement was made by appellant to Cude in the jail in Texas. The objection made by appellant to the introduction of this testimony was because it was too remote in point of time after the warning given; and we are referred to the case of Barth v. State, 39 Tex. Cr. R. 381, 46 S. W. 228, as authority for its exclusion. In Barth's Case, whether the statement was made within one, two, or three weeks after the warning given, the witness was not able to state. However, the court appears to have conceded after the admission of this testimony that it should be excluded, and accordingly orally instructed the jury that they should not consider the testimony,—that it was excluded from their consideration,—and subsequently, in the written charge, also instructed the jury to the same effect. Appellant contends that the admission of this testimony was of a prejudicial character, and that, having been admitted, it was beyond the power of the court to eradicate it or prevent its influencing the jury; and on this subject he also refers us to Barth v. State, supra, and Welhousen v. State, 30 Tex. App. 623, 18 S. W. 300. Both of said cases are authority for appellant's contention, but it will be observed the testimony admitted and subsequently excluded was of a very damaging character. In this case there was no confession of guilt,—only an attempt to fabricate testimony of an alibi. Under the circumstances of this case, we think the principle announced in Miller v. State, 31 Tex. Cr. R. 636, 21 S. W. 925, 37 Am. St. Rep. 836, is more in point. As is stated in that case, there is a contrariety of decisions of this court on the subject of the exclusion of testimony after it has once been improperly admitted. Some of the cases hold that the exclusion of such testimony will not cure the error, while others hold the contrary. In such a conflict, the true rule would seem to be that if the admitted testimony is of such a damaging character as to suggest the impossibility of withdrawing the impression produced on the minds of the jury, and thus curing the error, it will be cause for reversal; otherwise, if the testimony is not of that damaging character, and not likely to influence the jury, it can be withdrawn, and the error of its admission thereby cured. We deem the testimony in this case of the latter character.

On the trial of the case the state was permitted to prove by one Wisdom that on the Saturday night before the killing, while the parties were at Fitzwater's saloon, and while he (witness) and deceased, Johnson, and Jim Moore were engaged in a game of cards, somebody said to Moore, "I would not play with the old man [meaning Johnson]; he is too drunk,"—and that Moore replied, "I am going to have his money, if I have to knock him in the head." It was not shown in this connection, as stated by the bill, that appellant was immediately present when this remark was made, or that he heard it; and it is further suggested by the bill that this was prior to the formation of any conspiracy on the part of Moore, Dorsey, and Hatcher to kill deceased, if any such...