Holder v. State

• Decision Date: 21 March 1917
• Docket Number: (No. 4396.)
• Citation: 194 S.W. 162
• Parties: HOLDER v. STATE.
• Court: Texas Court of Criminal Appeals

194 S.W. 162

HOLDER v. STATE.

(No. 4396.)

Court of Criminal Appeals of Texas.

March 21, 1917.

On Motion for Rehearing, April 18, 1917.

Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.

John Holder was convicted of manslaughter, and he appeals. Affirmed.

Mays & Mays, of Ft. Worth, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.

MORROW, J.

Appellant was indicted for the murder of Hubert Jenkins, convicted of manslaughter, and his punishment assessed at confinement in the state penitentiary for a term of five years.

The court charged the jury on the law of murder, manslaughter, self-defense, and threats, and in connection with the law of self-defense charged on provoking the difficulty.

Complaint is made in the first bill of exceptions of the action of the court in permitting the jury to take with them in their retirement when the case was submitted to them the written confession of appellant. The confession was duly signed and sworn to and introduced in evidence without any objection. The substance of the complaint is that the jury had not called for the confession, and that appellant had testified to other facts concerning the homicide, and claimed that at the time he signed the written confession he had made other statements with reference to the homicide which were not contained in the confession, and which other statements were beneficial to him, and that the fact that the written confession was given to the jury and that the jury did not have in connection with it the other verbal statements or facts which appellant claimed were stated by him gave undue prominence to the confession, and was by reason thereof calculated to prejudice his case. The written statement admitted that appellant had killed the deceased and stated facts raising an issue of self-defense. The appellant's testimony on his trial was not in denial of making the statement or signing or swearing to it, but he testified that on the day prior to the homicide the deceased had cursed him and threatened him.

Article 751, C. C. P., states:

"The jury may take with them, on retiring to consider their verdict, all the original papers in the cause, and any papers used as evidence."

This statute has been construed in the cases of Ferguson v. State, 61 Tex. Cr. R. 152, 136 S. W. 465, and Webb v. State, 69 Tex. Cr. R. 413, 154 S. W. 1013, and other cases mentioned in Vernon's Ann. C. C. P. p. 566, and in White's Ann. C. C. P. § 873, and has been held to entitle the jury to take with them all writings and documents introduced in evidence. In the case of Chalk v. State, 35 Tex. Cr. R. 116, 32 S. W. 534, it was held that they might take the clothes of deceased where they had been introduced in evidence, and in Hatch v. State, 6 Tex. App. 384, it was held that they might take a magnifying glass for the purpose of examining papers submitted in evidence. It has been held in Wragg v. State, 65 Tex. Cr. R. 131, 145 S. W. 342, that there was no error in failure to deliver written evidence to the jury in the absence of a request by them for it, but neither the statute nor decisions prohibit the court from giving the papers introduced in evidence to the jury in the absence of a request from them. In fact, the statute is but declaratory of a right the court could have exercised in the absence of the statute. The text in the Enc. of Pl. & Pr. vol. 12, p. 591, states that:

"It is now the general doctrine that all papers and documents given in evidence, with the exception in some jurisdictions of depositions, may properly be allowed to go to the jury."

There was, in our opinion, no error in delivering the written statement signed by appellant to the jury after it had been introduced in evidence.

In his second bill of exceptions appellant complains of the action of the trial court in permitting a witness to testify that a pistol exhibited at the trial, which was shown to have been in the possession of deceased at the time of the homicide, had been fired only one time in his opinion; that is, only one shot. There was an issue developed by the evidence as to whether the deceased had fired more than once at the time of the homicide. The state's theory was that he had fired only once, and that after he had been shot by the appellant. Appellant's theory and testimony was that the deceased had fired at him a number of times, emptying his gun and reloading it, and that the deceased fired at him twice before he fired at all. The witness who gave this opinion testimony had been a deputy sheriff for about eight years, and was at the time of the trial, had been familiar with pistols, their use and condition, during that time, claimed to have made a study of them for the past eight years, and that he could tell by an examination of the pistol how often it had been fired. The objection was based upon the contention that the matter was not the subject of expert testimony, and that the witness was not qualified to give an opinion. Testimony of this character coming from one whose experience in handling firearms gives him a special knowledge of the subject has often been held admissible. Fay v. State, 52 Tex. Cr. R. 185, 107 S. W. 55; Roquemore v. State, 59 Tex. Cr. R. 568, 129 S. W. 1120; Cabrera v. State, 56 Tex. Cr. R. 141, 118 S. W. 1054; Pearson v. State, 56 Tex. Cr. R. 607, 120 S. W. 1004; Pemberton v. State, 55 Tex. Cr. R. 464, 117 S. W. 837; Meyers v. State, 14 Tex. App. 35; Modern Law of Ev. § 1990, and cases cited in the note; Bearden v. State, 44 Tex. Cr. R. 578, 73 S. W. 17; Head v. State, 40 Tex. Cr. R. 265, 50 S. W. 352.

On the question of the complaint that the witness did not show himself qualified to give the testimony the rule is that a witness must have some special practical knowledge of the subject in order to enable the court to determine his competency, and the determination of this question is largely in the discretion of the trial court. Wharton's Crim. Ev. §§ 408, 409, and cases cited in notes. 1 Wigmore on Ev. § 561, in treating the subject, says:

"In most jurisdictions it is repeatedly declared that the decision upon the exceptional qualification of witnesses should be left to the determination of the trial court"

—with the conclusion that it is only in cases where this judicial discretion has been abused that the trial court's decision will be disturbed.

In Bratt v. State, 38 Tex. Cr. R. 123, 41 S. W. 622, the rule as approved by this court is stated as follows:

"As a general proposition, the qualification of a witness to testify as an expert is a question for the trial court, whose decision is not generally reviewable on appeal."

The question was discussed by this court in the case of Dane v. State, 36 Tex. Cr. R. 84, 35 S. W. 661, where the court says:

"It is hard to lay down any rule as to who may or may not be qualified to testify as an expert. * * * But it would appear that, where a person shows himself totally disqualified as an expert to give an opinion upon a matter," his testimony should be excluded.

In view of these authorities, we cannot say the court committed error in permitting the witness to give the testimony complained of.

In another bill of exceptions appellant complains of the exclusion of the proffered testimony of the witness who would have given an opinion contrary to that of the expert witness above discussed. The bill, in giving the theory of the state and appellant as indicated above, states that the state in support of its theory introduced the pistol in evidence that the deceased had at the time, which was practically a new gun; that it showed one empty chamber; that the chamber shown to be empty showed a little canker near said chamber; that the state had also introduced the witness Tom Padgett, who...