Holmes v. State

• Court: Texas Court of Criminal Appeals
• Writing for the Court: Harper
• Citation: Holmes v. State, 150 S.W. 926, 68 Tex.Cr. 17 (Tex. Crim. App. 1912)
• Decision Date: 14 February 1912
• Parties: HOLMES v. STATE.

150 S.W. 926

HOLMES v. STATE.

Court of Criminal Appeals of Texas.

February 14, 1912.

On Motion for Rehearing, October 30, 1912.

Appeal from District Court, Ward County; S. J. Isaacks, Judge.

P. K. Holmes was convicted of manslaughter, and he appeals. Reversed on rehearing, and remanded.

J. F. McKenzie, of El Paso, J. E. Starley, of Barstow, and W. A. Hudson, of Pecos, for appellant. Will P. Brady, Dist. Atty., of Pecos, A. L. Camp, of Ft. Worth, and C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

In this case appellant was indicted, charged with the murder of Knox Crowe. When tried, he was convicted of manslaughter, and his punishment assessed at two years in the penitentiary.

It appears from the evidence that W. C. Crowe, Miss Crowe, and deceased went from their home to Saragosa where appellant was managing a mercantile establishment. Upon arriving near the store, W. C. Crowe and deceased got out of the hack (leaving Miss Crowe in the hack) and went into the store where appellant was waiting on a customer. They informed appellant he must marry Miss Crowe and went with him from the store to the hack. Miss Crowe was told to get out of the hack, and W. C. Crowe, her father, who was a justice of the peace, performed, or began to perform, the marriage ceremony between appellant and his daughter. Appellant, seizing an opportunity, drew a pistol from his pocket and fired at W. C. Crowe, who fell, having been wounded in the head. He then shot deceased, emptying his pistol. He then ran back to the store, seized a Winchester rifle, loaded it, returned to the front part of the store, stepped off the gallery, and, seeing deceased on the gallery of Mata's store, fired at him with the rifle. Deceased then went into Mata's store, about 94 feet from appellant's place of business, where he shortly thereafter died from the effects of a wound received during the difficulty. The facts will be more fully discussed in passing on the questions raised in the motion for a new trial and in the bills of exception.

In bill of exceptions No. 1 defendant complains that the court refused to permit him to prove by Dr. R. O. Braswell, of Ft. Worth, what the doctor told W. C. Crowe on the occasion of the latter's visit to Ft. Worth. The bill shows that Dr. Braswell would have testified "he told W. C. Crowe that one T. E. Gibbons had sent money to Miss Crowe, and had been in Ft. Worth and made arrangements for the care of Miss Crowe at the Rescue Home, and had agreed to pay $100 to have the child adopted, and that he (the doctor) thought Ed Gibbons was the father of the child. That he had seen Gibbons with his arms around Miss Crowe in one of his private offices." W. C. Crowe was not on trial; the defendant is not shown to have had any knowledge of this conversation prior to the shooting; and what the doctor may have told Mr. Crowe was not admissible. If Mr. Crowe was on trial, it might have a tendency to show whether he was acting in good faith, but such conversation between the doctor and Mr. Crowe a month before the difficulty under the evidence in this case, could not and would not shed any light on the motives and actions of defendant on the day of the difficulty. He admits having had sexual intercourse with the daughter of W. C. Crowe, and, while he maintains it was impossible for him to have been the father of the child, yet his testimony would show he knew that W. C. Crowe was seeking to force him to marry the girl because of a belief that he (appellant) was the father of the child, and that the doctor informed Mr. Crowe of his (the doctor's) belief or circumstances that rendered it possible or probable that another person had also had sexual intercourse with his daughter, would not be admissible.

Mr. Crowe, when on the witness stand, was asked if he had a conversation with Dr. Braswell, and admitted that he had a conversation. He was then asked if he did not tell Dr. Braswell he was going to kill appellant. He denied making such statement. Dr. Braswell was permitted to testify that Mr. Crowe did tell him in that conversation he was going to kill appellant. Mr. Crowe was asked nothing further in regard to the details of the conversation. Consequently he could not be impeached upon something he was not questioned in regard to, and it was not admissible for that purpose, in the absence of Mr. Crowe being interrogated in regard thereto. Miss Crowe, or Mrs. Holmes, at the time the doctor was offered as a witness, had not been placed on the witness stand. Consequently his testimony was not admissible at that time to impeach any statement she made, and he was not offered as a witness after she had testified, but, when she did testify, Mrs. Whitmore, Mrs. Murtishaw, and Dolly McCorkle were permitted to testify what she had stated at this time, and, if the doctor had been again offered as a witness, he would doubtless have been permitted to testify to all these matters that came within his knowledge and under his observation, and what the bill says it was expected to prove he told Mr. Crowe. Not that he told Mr. Crowe, but the facts themselves, it being immaterial whether or not he told Mr. Crowe. As the matter is presented, there was no error in not permitting him to state what he told Mr. Crowe.

In the second bill it is complained that the court erred in limiting the argument on the facts to the jury to 4½ hours to the side, giving as a reason for so doing that the term of court was drawing near to a close. By article 705 of the Code of Criminal Procedure, it is provided that the court in felony cases shall not limit the argument to less than two addresses to each side. In this case it is not contended that the court did so limit the argument; the only contention being that the time was insufficient to properly present the case. This is a matter within the discretion of the judge trying the case, and in the absence of a showing that such discretion had been abused, or that defendant suffered some injury thereby, such matters will not be reviewed. The bill does not even disclose that appellant's counsel used the time allotted to them. Huntley v. State, 34 S. W. 923; Scott v. State, 36 S. W. 277.

In bill No. 3 appellant complains that the court had the jury to retire, while counsel for the state and defendant presented authorities and made their argument to the court on questions of law applicable to the case. The jury are the judges of the credibility of the witnesses and the weight to be given to the testimony, but under our system of procedure they receive the law from the court, and it is a matter within the discretion of the court whether or not the authorities shall be presented to the court in their presence, and this discretion will not be revised on appeal unless that discretion has been abused to the prejudice of the defendant. Jacobs v. State, 37 Tex. Cr. R. 428, 35 S. W. 978; Phipps v. State, 36 Tex. Cr. R. 216, 36 S. W. 753; Burt v. State, 38 Tex. Cr. R. 397, 40 S. W. 1000, 43 S. W. 344, 39 L. R. A. 305, 330. In the bill it is not shown wherein appellant suffered any injury from such action on the part of the court.

In the motion for a new trial, from paragraph 9 to paragraph 23, it is urged: "The court erred in his failure and refusal to give to the jury defendant's requested special charge No. 1"—in each paragraph naming a different number of special charge requested. In bills of exception from No. 4 to No. 19, inclusive, it is also complained that the court erred in failing to give these special charges. The bills read: "Be it remembered that upon the trial of the above-entitled and numbered cause the defendant, by his counsel, before the regular charge was read to the jury, requested the court to give in charge to the jury the following special charge: (Here is copied one of the charges.) And be it further remembered that, after the court had duly considered said charge, the court refused to give the same, to which action of the court the defendant then and there in open court excepted, and here now tenders his bill of exceptions, and asks that same be filed, approved, and made a part of the record herein, which is accordingly done." It will be seen that in the bills of exceptions, nor in the motion for a new trial, no reason is assigned why the court erred in failing to give such charge, nor reasons given why the charge should have been given. This question has been recently before this court in the case of Ryan v. State, 142 S. W. 878, and Berg v. State, 142 S. W. 884 (not yet officially reported), and, while the writer in the Ryan Case expressed his individual opinion, yet the court decided that the rule announced by Judge Davidson in the case of Quintana v. State, 29 Tex. App. 402, 16 S. W. 258, 25 Am. St. Rep. 730, was the correct rule and should be adhered to. In that case it is said: "There is a bill of exception reserved to the charge as an entirety, in which the only objection urged is thus stated: `Because the same did not instruct the jury fully upon the law governing in this case under the facts proved.' The court's qualification of this bill of exception is thus stated: `When the charge was read to the jury, the defendant's attorney excepted to the charge without assigning any reason.' We are not called upon to consider this exception. `Bills of exception, when too indefinite to point out distinctly the matter complained of as error, will not bring such matter properly before the court for review.' Smith v. State, 22 Tex. App. 316 [3 S. W. 684]; Williams v. State, 22 Tex. App. 497 [4 S. W. 64]. The primary object or purpose of a bill of exception reserved to a charge of the court is to call the attention of the trial judge to the particular matter complained of, so that he may be afforded an opportunity to correct any error he may have fallen into, to the end that the rights of the defendant may not be prejudiced. A general exception does not accomplish this. Another reason why the bill...