Hewey v. State

• Decision Date: 24 March 1920
• Docket Number: (No. 5738.)
• Citation: 220 S.W. 1106
• Parties: HEWEY v. STATE.
• Court: Texas Court of Criminal Appeals

220 S.W. 1106

HEWEY v. STATE.

(No. 5738.)

Court of Criminal Appeals of Texas.

March 24, 1920.

On Motion for Rehearing, April 21, 1920.

Appeal from District Court, Cooke County; C. R. Pearman, Judge.

I. W. Hewey was convicted of manslaughter, and he appeals. Verdict set aside.

Culp, Culp & Culp, of Gainesville, for appellant.

Alvin M. Owsley, Asst. Atty. Gen., and Garnett & Garnett, of Gainesville, for the State.

MORROW, J.

The appeal is from conviction for manslaughter, with punishment fixed at confinement in the penitentiary for five years. The facts are sufficiently stated in report on former appeal, 81 Tex. Cr. R. 554, 197 S. W. 202.

The first bill of exceptions, complaining of proof that appellant was angry, discloses no error. It was competent to prove that he appeared angry. Bennett v. State, 39 Tex. Cr. R. 648, 48 S. W. 61; Powers v. State, 23 Tex. App. 42, 5 S. W. 153; 5 Rose's Notes on Texas Reports, p. 601. There is nothing in the bill to indicate that the testimony was irrelevant. In support of the court's ruling we presume that it was relevant. Moore v. State, 7 Tex. App. 20; Edgar v. State, 59 Tex. Cr. R. 256, 127 S. W. 1053.

The second bill, setting out in question and answer form part of the testimony of the witness Williams, fails to set out any of the surrounding facts, and the Assistant Attorney General objects to its consideration, citing Thompson v. State, 29 Tex. App. 208, 15 S. W. 206, Black v. State, 68 Tex. Cr. R. 151, 151 S. W. 1053, Eldridge v. State, 12 Tex. App. 208, Harris v. State, 67 Tex. Cr. R. 251, 148 S. W. 1074, and other cases. The statute (article 2059) requires no particular words in a bill of exceptions, but says:

"The objection to the ruling or the action of the court shall be stated with such circumstances, or so much of the evidence as may be necessary to explain it, and no more, and the whole as briefly as possible."

A statement of the reason for objecting to the ruling does not suffice, but the facts showing its relation to the case must be stated in a manner to disclose that they are facts certified to by the trial judge. Hennessy v. State, 23 Tex. App. 355, 5 S. W. 215; Branch's Annotated Texas Penal Code, § 209. On the subject we will add that reproducing in question and answer form the testimony of a witness is a practice to be avoided except on occasions when such a reproduction is necessary to disclose the meaning. Such procedure certainly does not follow the direction of the statute to "state so much of the evidence as may be necessary to explain the ruling, and no more, and the whole as briefly as possible." We have examined the testimony of the witness Williams in the statement of facts, and find nothing therein indicating a failure to observe the views expressed by the court on the former appeal.

As a predicate for introducing proof of tracks at the scene of the homicide, it is not incumbent upon the state to introduce evidence to negative their presence there before the homicide, nor is an objection tenable that the tracks were not found immediately. Haley v. State, 209 S. W. 675, 3 A. L. R. 779.

The fact that the son of the appellant, on going to the scene of the homicide, kissed his father, was not relevant, but, in view of the verdict, receiving it in evidence was not reversible error.

The witness Taylor gave evidence describing certain tracks near the scene of the homicide. On cross-examination the appellant proved by him that he had gone to the scene of the homicide with the witness Williams, and that Williams had told him where the appellant was during the difficulty, and that he (the witness) went into the field from which the shot was fired, and examined the tracks at Williams' solicitation. The motion to exclude the testimony of Taylor, given on direct examination, because of this disclosure on cross-examination, was properly overruled.

We regard the instruction by the court to the jury that the result, if any, of the former trial did not concern them, and was not to be mentioned or considered, was an appropriate precaution against misconduct of the jury. The same practice has often been pursued with approval in warning the jury against the reference to or consideration of the failure of the accused to testify in his own behalf. Driver v. State, 37 Tex. Cr. R. 160, 38 S. W. 1020; Lankster v. State, 65 S. W. 373; McKelvey v. State, 69 Tex. Cr. R. 538, 155 S. W. 932.

It affirmatively appears from a bill of exceptions that to none of the jurors trying the case was there administered the oath required by statute. In swearing them the words "So help me God" were omitted. These words are included in the statute. Article 714, C. C. P. The learned trial judge was of the opinion that the appellant, failing at the time to complain of the form of the oath was too late to avail himself of the omission upon motion for new trial. Some references are furnished by the Assistant Attorney General to instances in which omissions of part of the statutory oath have been held waived. See Ruling Case Law, vol. 16, pp. 293, 294; Baldwin v. Kansas, 129 U. S. 52, 9 Sup. Ct. 193, 32 L. Ed. 640; Bank v. Lowther, 66 W. Va. 505, 66 S....