Irvine v. State

• Decision Date: 27 June 1888
• Citation: 9 S.W. 55
• Parties: IRVINE v. STATE.
• Court: Texas Court of Appeals

9 S.W. 55

IRVINE v. STATE.

Court of Appeals of Texas.

June 27, 1888.

Appeal from district court, Wise county; G. A. McCALL, Judge.

Indictment for murder against J. S. Irvine. He was convicted, and appeals.

H. M. Furman and Stephens & Hurbut, for appellant. Asst. Atty. Gen. Davidson, for the State.

WHITE, P. J.

This is a second appeal in this case. At the first trial in Montague county appellant was convicted of murder in the second degree, and his punishment fixed at five years in the penitentiary. 20 Tex. App. 12. After the case was reversed on the former appeal to this court, the venue was changed to Wise county, and this present appeal is from a judgment of conviction in the latter county upon a trial wherein the defendant was found guilty of manslaughter, with punishment again fixed at five years in the penitentiary. Defendant objected to a portion of the testimony of the state's witness Matthews, who said: "I thought that the defendant, J. S. Irvine, had a pistol;" objection being upon the ground that the witness could not testify as to his impression. The witness said: "It was my best impression that defendant did have a pistol;" and being asked what that impression was based upon, he said: "Upon the way defendant held his hand." Discussing the admissibility of such evidence, the learned author, Mr. Wharton, says: "The limitedness both of human observation and human expression forbids the reproduction of any fact exactly; it is enough if a witness swears to events and objects according to his best recollection and belief. But it is no objection to the admissibility of such evidence that the witness uses the term `impression,' if he testified to what he believes, however distrustful he may be as to perfect accuracy. It is for the jury to determine how far such `impressions' are reliable. So a witness is allowed to state why certain facts are impressed on his memory, if such reasons are not for other grounds inadmissible. Impressions, however, which are conjectural and uncertain, cannot be detailed." Whart. Crim. Ev. (8th Ed.) § 462; Powers' Case, 23 Tex. App. 43, 5 S. W. Rep. 153. We are of opinion that the "impression" of the witness in this case was entirely conjectural, and too uncertain to be admitted as evidence. He does not even state that he saw anything at all in defendant's hand, nor the mode and manner in which defendant held his hand, so as to impress him that he did have a pistol.

Another exception was reserved in connection...