Lancaster v. State

• Decision Date: 15 April 1896
• Citation: 35 S.W. 165
• Parties: LANCASTER v. STATE.
• Court: Texas Court of Criminal Appeals

35 S.W. 165

LANCASTER v. STATE.

Court of Criminal Appeals of Texas.

April 15, 1896.

Appeal from district court, Erath county; J. S. Straughan, Judge.

Jim Lancaster was convicted of murder in the second degree, and appeals. Affirmed.

Cooper & Estes, Martin, George & Oxford, and Poindexter & Padelford, for appellant. Mann Trice, for the State.

HENDERSON, J.

Appellant was convicted of murder in the second degree, and his punishment assessed at 7½ years in the penitentiary; and he prosecutes this appeal.

1. On the trial of the case the state proved, by B. T. Sargent and W. A. Porter, that, on the day of the appellant's arrest, and a short time prior thereto, they saw the defendant Jim Lancaster, and his father, J. R. Lancaster, and his uncle, Buck Lancaster, in a stall in the wagon yard of Jim Skipper, and that they were squatted or "hunckered" down; and they saw Jim Lancaster take a book from his pocket and hand it to Dr. Lancaster. One of said witnesses testifies that he started to hand it to Dr. Lancaster, and that Buck Lancaster hunched him in the side with his elbow as he (witness) entered the adjoining stall. Both of said witnesses agree that said pocketbook was a long, red, side pocketbook, and opened on the side with a flap. The witness Sargent testified that they were talking together low, but witness did not understand what they said. The witness Porter testified that the defendant, his father, and uncle were crouched down, "sorter under the stall like," with their heads a little tucked down; that he supposed that they were talking, but heard nothing that was said. Thereupon the defendant placed J. R. Lancaster, his father, and Buck Lancaster, his uncle, on the stand, and proved by them that, after hearing that the defendant, Jim Lancaster, was suspected of being connected with the murder of the deceased, Parker, they sought an interview with him at the time and place indicated by the witnesses Sargent and Porter, and that they were squatted or seated in said stall; that Dr. J. R. Lancaster then and there said to the defendant that he had heard that the defendant was suspected of being connected with the homicide, and that, if he was guilty of it, or had any connection with it, he wanted him to get on his (Dr. Lancaster's) horse and leave the country, and never return; but, if he was innocent of the charge, to remain, and he would stand by him. Further, that the defendant did not hand a pocketbook, or attempt to hand a pocketbook, to his father, J. R. Lancaster, at said time, or at any other time or place. The defendant further refers to the statement of facts as to what was proved. Thereupon the defendant offered to prove, by said J. R. Lancaster and Buck Lancaster, that J. R. Lancaster then and there asked the defendant if he was guilty of said offense, or had any connection with it, and that the defendant then and there replied that he was as innocent of the charge as a babe unborn, and did not propose to leave the country, but to remain where he was. The state objected to said evidence, and the court sustained the objection. Appellant insists that said evidence was admissible, because the state had put in evidence the fact of the defendant as well as that of his father and uncle being close together at the same time and place mentioned; and, the state having shown that they were talking in a low tone, too low to be heard, the defendant was entitled to put in evidence all that was said and done at said time and place, and fully explain the purpose of said conference, and the result of the same, and all that was done in the same. To this the court appends, as explanatory, that the state did not put in evidence anything that was said by the parties at the time, and further states that, as a matter of fact, the defendant was permitted to prove everything that was said and done at said time and place, and to fully explain the purpose of said conference, and the result of the same, and all that was said and done, save and except the proposed declaration of the defendant as to whether he was connected with the murder of J. W. Parker. In connection with this, by reference to the statement of facts upon this point, which is made a part of the bill by reference thereto, it will be seen that, in the conversation alluded to, the witness J. R. Lancaster testified that he told the defendant: "`My son, you are suspected of being connected with that awful crime that was committed in the western part of the county, and I come to you now, and ask you if you are connected with it in any way? If you are, there is my horse and saddle. Get on it, and leave, and never show your face to me again. But, if you are innocent, stay, and I will do all that I can for you,'"—and that the defendant made no effort to get away. The general rule on this subject is that, when any part of an act, declaration, or conversation, etc., is given in evidence by one party, the whole of the same subject may be inquired into by the other. See Rev. Code Cr. Proc. art. 791. Under this rule, the state having adduced the circumstances of the parties squatting down in the stall, and engaging in conversation, all that was said, explanatory of such acts and conduct, was competent evidence; but, if the defendant had, in effect, the response of the defendant by his acts and conduct, the language he may have used, it occurs to us, is unnecessary. Now, he was told by his father, if he was guilty, to take his horse and leave, but, if not, to remain. He made no effort to leave, but remains, and this fact is testified to; and it is just as expressive as the verbal testimony, which was excluded, to the effect that he was innocent. He was told to leave, and the opportunity was afforded him, if he was guilty, but to remain if he was innocent. The voluntary choice by him of the alternative presented was as effectual an answer as if he had been permitted to state, before the jury, that he was innocent of the charge. The jury could have put no other construction upon this conduct.

2. Appellant complains that the court excluded from the jury that part of the deposition of T. P. McGuire relating to the financial condition of the deceased. Said excluded testimony is as follows: "During the time I knew him, he often complained about hard times, and not having any money, and having to sell property to buy anything he had at that time,—meaning the year 1887. He said he had no money. Parker always claimed to be out of money, except when he received the sum mentioned before, and would often speak of owing little debts, and wanting money to pay the same." By an inspection of this bill of exceptions, it will be seen that the appellant was permitted to go back to the year 1883, and prove by said witness the financial transactions of the deceased from that time up to the killing, and really all that was in the alleged excluded testimony was admitted. So far as the state was concerned in assigning the motive of the robbery, by showing that the deceased had money, it did not go back of the transaction which occurred about one month before the homicide, in which the deceased was shown to have sold some cattle for $189, and this fact was brought home to the knowledge of the appellant; and it was no rebuttal of the state's case, in the assignment of motive, to go back of that transaction, and show that, at a period long previous, the deceased complained of hard times and of a want of money. But, as has been stated, the court admitted a mass of this character of testimony.

3. Appellant contends that the court erred in permitting the state to ask the witness T. P. McGuire a number of questions relating to the insurance by him, at some previous time, of a stallion, for $2,000. We do not believe that it was legitimate for the state to show, as to this witness McGuire, that he was engaged in an attempt to swindle the insurance company, as going to discredit him before the jury. The cases do not go to this extent. The answers of the witness, however, tended to exculpate him from said charge, and we fail to see any error as to this matter.

4. A number of bills of exception are presented to the action of the district attorney, J. T. Daniels, in discussing the case before the jury. From these bills it is evident that said attorney repeatedly traveled out of the record, going to the extent of making assertions even against the record. The attention of the...