Houston v. State

• Decision Date: 16 January 1918
• Docket Number: (No. 4739.)
• Citation: 202 S.W. 84
• Parties: HOUSTON v. STATE.
• Court: Texas Court of Criminal Appeals

202 S.W. 84

HOUSTON v.STATE.

(No. 4739.)

Court of Criminal Appeals of Texas.

January 16, 1918.

On Motion for Rehearing, April 10, 1918.

Appeal from District Court, Tarrant County; R. E. L. Roy, Judge.

Seibert Houston 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 Sam Brown, convicted of manslaughter, and his punishment assessed at five years' confinement in the state penitentiary.

Appellant killed deceased by stabbing him with a knife.The homicide took place at a house of ill fame kept by a woman named Miller, at which house appellant and his wife at the time resided.The state's theory and evidence was that appellant was intoxicated, and attacked the deceased without provocation.Appellant claimed to have acted in self-defense.

One of the witnesses, May Stokes, was a common prostitute and an inmate of the house at which the homicide took place.Appellant's bill of exceptions complains of the refusal of the court to allow him on cross-examination to show by her that she had been arrested for drunkenness several times in the preceding six months.The offer was not to prove that she was drunk at the time of the homicide.This would have been admissible as testing her knowledge of the facts.Green v. State, 53 Tex. Cr. R. 490, 110 S. W. 920, 22 L. R. A. (N. S.) 706;Wallace v. State, 65 Tex. Cr. R. 654, 145 S. W. 925;Lewis v. State, 33 Tex. Cr. R. 618, 28 S. W. 465.Proof, however, that she had been arrested for drunkenness on other occasions would be proof that she was charged with a misdemeanor not involving moral turpitude which, under the decisions of this court, is not receivable.Branch'sAnn. P. C. pp. 102, 103, §§ 168, 169, and cases cited.Appellant insists that the fact that the witness being a woman and in the habit of getting drunk would have tended to discredit her testimony beyond the point that it would have discredited by proof which was made that she was a prostitute.We think, as stated, that the evidence was not admissible.It would have been but cumulative of the fact testified to by the witness that she was in the habit of drinking intoxicating liquors.

Complaint of the exhibition of the knife which was used in killing of deceased is made.It was not shown to be a deadly weapon per se, and was an element of evidence to be considered in determining the intent of the appellant, made so by statute.Article 1147, P. C. Appellant relies upon the cases in which it has been held erroneous to introduce the clothing of deceased in evidence.These cases will be found to reject such evidence only when it tends to prove no controverted fact, and to receive it when it does tend to make such proof.The knife in question, we think, comes within the latter rule, particularly under the statute mentioned and the authorities construing it.Vernon's P. C.p. 717.See, also, Branch's Ann. P. C.p. 1031, § 1855;Wharton'sCr. Ev. § 311, vol. 1.

There is another bill complaining of the failure of the court to permit appellant to prove by the witness Miller that the deceased had the reputation, when under the influence of intoxicating liquor, of being a quarrelsome and dangerous man.This fact was proved by a number of witnesses, and, so far as we can discern from the record, is not a controverted issue.From the record it appears that the deceased bore the reputation of being a violent, dangerous, quarrelsome man, drunk or sober.Under the circumstances the bill shows no harmful error.

Another bill complains that appellant desired to ask several witnesses the general reputation of deceased in the neighborhood where he lived with reference to being of a quarrelsome and fighting disposition.The court qualifying the bill says that he offered to permit proof by the witnesses that deceased had the reputation of a fighting and dangerous man.A number of witnesses testified that deceased was a quarrelsome, dangerous fighting man.Some of them qualified it by saying that he was such when he was under the influence of intoxicating liquor.Several of these witnesses testified to specific instances in which the deceased manifested a fighting and quarrelsome disposition.Appellant testified to a number of instances himself.Proof was undisputed that deceased had been drinking on the day of the homicide.Some of the witnesses testified that he was not drunk, but none testified to his good character as a peaceable man, nor disputed the fact that he was a quarrelsome, fighting man.

The state asked some witnesses if appellant had not lived in adultery with his wife prior to their marriage.This was excluded, and the prosecuting attorney in arguing the case stated "they lived together as husband and wife before they were married."The bill shows that the court orally instructed the jury not to consider this remark, but refused written instructions to that effect.It appears, after this bill was allowed, the record in the court below was corrected so as to show that a special charge requesting the withdrawal of this remark, was given by the court to the jury, and by motion for certiorari, which was granted, the record here was corrected.The undisputed evidence was that appellant and his wife were living in a house of ill fame at the time of the homicide; that the wife had preceded her husband there, and there was evidence that he knew of the character of the premises and the reputation of the keeper of the house, Mrs. Miller, and that it was a house of prostitution.The record shows without objection that appellant's wife was living with Mrs. Miller at the time of his marriage.Attention to this is directed in the court's qualification to the bills under discussion.Appellant claimed that his wife had gone to the house of Mrs. Miller while he was away from home, and that he had gone there a month or six weeks before the homicide and persuaded her to go back with...