James v. State

• Citation: 219 S.W. 202
• Decision Date: 04 February 1920
• Docket Number: (No. 5521.)
• Parties: JAMES v. STATE.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

219 S.W. 202

JAMES v. STATE.

(No. 5521.)

Court of Criminal Appeals of Texas.

February 4, 1920.

On Motion for Rehearing, March 10, 1920.

Appeal from District Court, Robertson County; John Watson, Judge.

John James was convicted of homicide, and he appeals. Reversed, and cause remanded.

H. S. Morehead and J. L. Goodman, both of Franklin, R. D. L. Killough, of Vernon, and Perry & Woods, of Franklin, for appellant.

C. M. Cureton, Atty. Gen., E. F. Smith, Asst. Atty. Gen., and K. W. Gilmore, Co. Atty., of Franklin, for the State.

MORROW, J.

The deceased, Claude Whitehead, was called to the door of his dwelling early on the morning of the 14th day of June, and shot to death by some person, who used an automatic shotgun loaded with buckshot. The wife of deceased testified that immediately after her husband was shot she ran to the door and on the gallery and saw a man with a gun in his hands, whom she identified as the appellant. The state introduced other testimony to the effect that on the day preceding the homicide the appellant had been called before the federal draft board in response to a notice that effort would be made to give him a less favorable classification in the selective draft, and that, being refused by the secretary of the board information as to the informant, indicated that he believed it to be the deceased.

The state advanced the theory that the appellant rode on horseback from the home of his father some two miles to a point near the home of the deceased; that he dismounted and hitched his horse, going on foot across the field or pasture to the home of deceased, and thereafter returning to the point where his horse was hitched. This theory of the state is supported by testimony of witnesses that the appellant, during the night preceding the homicide, had visited the homes of several parties whose dwellings were en route from that of his father to that of the deceased; that he was drinking intoxicants; and that he made threats or expressed hostile intentions towards the deceased. The theory was also supported by testimony to the effect that there were certain horse tracks found in the road and at a point where it was claimed that the horse of the assassin was hitched, and testimony as to circumstances going to show that the appellant was riding on the road in question, and that he was seen doing so at a time and place which were coincident with the theory of the state. Evidence by the state was also introduced to the effect that there were discovered on the morning immediately after the homicide tracks made by some person wearing highheeled boots, indicating that the person had gone from the point where the horse was hitched to the dwelling of deceased and returned therefrom.

The appellant testified and denied the assassination and swore to facts showing an alibi, and in support of this theory he introduced a number of witnesses. He introduced evidence to the effect that the person riding horseback was another; and several of his witnesses testified negativing the fact that the appellant wore boots on the occasion mentioned, was in possession of boots, or in the habit of wearing them. He introduced some testimony showing motive and opportunity of others to commit the offense, and much testimony to impeach the wife of the deceased, both by showing a bad reputation for truth and veracity and statements out of court contradictory of her inculpatory testimony.

In support of his theory of alibi, and to show that he was not wearing boots on the occasion of the homicide, the appellant used the testimony of his father, William James, his mother, Mrs. William James, and his brother, Riley James. He used testimony of the witness Robert Price to support his theory of alibi. To rebut the theory that he was wearing boots, he also used the witnesses George Castillo and Roy McBride. To prove contradictory statements of Pearl Whitehead, the wife of deceased, he used, among others, Frank Welch and George Miller. J. M. Reynolds gave testimony that a state witness named Henry Shirley had threatened to kill the deceased; it appearing from other testimony that Shirley was in proximity to the homicide at the time it took place. In rebuttal for the state, the witness McDonald testified that both the appellant and his brother Riley were in possession of boots about the time of the homicide. He testified that Reynolds and Robert Price had made statements out of court in conflict with their testimony on the trial. He also testified that the reputation of Price for truth and veracity was bad, and gave a similar statement with reference to George Miller and Frank Welch, and supported the good reputation of Mrs. Pearl Whitehead for truth and veracity. The charge of the court touching the testimony of McDonald used the following language:

"Certain testimony of the witness Bob McDonald has been introduced as evidence in this case, and you will consider the same, if you consider it at all, only in passing upon the credibility of the witnesses Ruff James, John Madden, George Castillo, Roy McBride, Wm. James, Mrs. Wm. James, Riley James, Frank Welch, George Miller, Robert Price, J. M. Reynolds, and the defendant, John James."

The appellant duly made and reserved an exception to this paragraph, containing the following language:

"Defendant objects and excepts to all that portion of the court's revised charge wherein the court undertakes to limit the testimony of the witness Bob McDonald, for the reason that the said instruction relating to the testimony of said witness is wholly inapplicable to the facts in this case; that it is misleading, confusing, and is calculated to lead the jury to consider said testimony in a manner wholly unauthorized under the law as applied to the facts in this case; and directs the jury to consider the testimony of the said witness Bob McDonald in passing upon the credibility of certain witnesses whose testimony could not be affected or impeached by the testimony of the said Bob McDonald."

We are impressed with the view that in refusing to amend his charge in response to this exception the learned trial judge inadvertently fell into error. It is proper to limit evidence which is competent for impeachment alone, and which is susceptible to use by the jury against the accused for some other purpose. Branch v. State, 15 Tex. App. 96, and other cases in 2 Vernon's Texas Crim. Statutes, p. 441, note 31; Coker v. State, 35 Tex. Cr. R. 57, 31 S. W. 655; Wilson v. State, 37 Tex. Cr. R. 373, 35 S. W. 390, 38 S. W. 624, 39 S. W. 373, and other cases cited in White's Texas Code Crim. Procedure, p. 529. In framing such a charge, the legal restrictions against charging on the weight of the evidence and against misleading the jury by an erroneous construction must be observed. Stull v. State, 47 Tex. Cr. R. 549, 84 S. W. 1059; Benson v. State, 54 Tex. Cr. R. 12, 111 S. W. 403; Cavaness v. State, 45 Tex. Cr. R. 211, 74 S. W. 908; McCleary v. State, 57 Tex. Cr. R. 139, 122 S. W. 26; Taylor v. State, 50 Tex. Cr. R. 562, 100 S. W. 393, and other cases cited in Branch's Annotated Texas Penal Code, p. 122, § 190. The necessity for placing any limitation upon the testimony of the witness McDonald is by no means clear as to any of the witnesses named in the charge, unless it be the witnesses Reynolds and Price.

The testimony of the witness McDonald with reference to the reputation for truth and veracity of the several witnesses mentioned by him required no limitation, for the reason that it was usable for no purpose other than as affecting the credibility of the witnesses. His testimony relating to the witness Riley James simply contradicted the witness, and did not impeach him. James claimed that neither he nor his brother had boots; McDonald claimed that they did have boots. This was not impeaching testimony, but presented a conflict for the solution of the jury. Wasson v. State, 3 Tex. App. 474.

As to the other witnesses named in the charge, McDonald's testimony is in no sense impeaching and not even in conflict. If their testimony was true, the state's witness Pearl Whitehead was mistaken in her identification of the slayer of her husband. The court was not warranted in instructing the jury that McDonald's testimony could be considered as affecting their credibility. McDonald having given no testimony touching these witnesses, the occasion for giving a charge calling attention to his testimony did not arise. The same error appears in Hardin v. State, 57 Tex. Cr. R. 407, 123 S. W. 613. The charge was particularly calculated to injure the appellant in that part of it in which the jury was given to understand that the testimony of McDonald bears upon the credibility of the appellant, John James. There is nothing in McDonald's testimony which is in the nature of...