Levy v. State

• Decision Date: 13 November 1889
• Parties: LEVY <I>v.</I> STATE.
• Court: Texas Court of Appeals

12 S.W. 596

LEVYv.

STATE.

Court of Appeals of Texas.

November 13, 1889.

Appeal from district court, Robertson county; J. N. HENDERSON, Judge.

M. H. Levy was convicted of manslaughter, and appeals.

Simmons & Crawford and Clark, Dyer & Bolinger, for appellant. Asst. Atty. Gen. Davidson, for the State.

WHITE, P. J.

We have maturely considered, weighed, and determined every question raised in the voluminous record before us, and so ably submitted in the brief and oral argument of distinguished counsel for appellant. Many of these questions will not be noticed, further than to remark that under well-settled rules and decisions they either fail to show any whatever, or, at most, none of them reversible, error in the rulings complained of. We only propose to discuss such matters as present the most serious issues in the case.

Defendant has been found guilty of manslaughter. Certain evidence with regard to uncommunicated threats was held inadmissible by the court. In our opinion, the excluded evidence, as set forth in the bill of exceptions, shows vituperative and abusive language about, rather than threats of violence against, defendant. It could only be cumulative of the great amount of similar evidence which was freely admitted by the court. If the proposed evidence could be fairly construed as threats, still, being uncommunicated, they could not possibly have influenced the conduct of defendant, or had any bearing upon, or afforded any presumption as to, his action in killing deceased, unless there had been a doubt as to which of the parties commenced the attack, in which case such uncommunicated threats would be admissible and proper evidence, for the purpose of showing that in all probability deceased made the attack, and his motive in doing so. Whart. Crim. Ev. (9th Ed.) § 757. Such evidence has also been held admissible to corroborate evidence of communicated threats previously admitted. Holler v. State, 37 Ind. 57; Horr & T. Cas. 568, 569. But such evidence could possibly have no weight in establishing manslaughter, or in mitigating its punishment, because manslaughter is predicable only upon "adequate cause," and facts unknown to defendant cannot enter into and become constituent elements or factors in creating "adequate cause." But, as stated above, the proposed evidence, as set forth, cannot, by any fair construction of language, be denominated "threats," or, indeed, anything more than vulgar and abusive epithets; and, such being their character, they were properly excluded, because uncommunicated, and affording no light as to the homicide. There was any amount of such evidence admitted.

Clothing worn by the deceased when he was shot was permitted to be produced in evidence before the jury. Such evidence was admissible and proper. King v. State, 13 Tex. App. 277; Hart v. State, 15 Tex. App. 203; Holley v. State, 75 Ala. 14; Jones v. State, 65 Ga. 508; People v. Hong Ah Duck, 61 Cal. 391; Com. v. Brown, 121 Mass. 69; McDonel v. State, 90 Ind. 320; Story v. State, 99 Ind. 413; People v. Knapp, 11 Pac. Rep. 793. Deceased's coat was identified, beyond question, as the one worn by him on the fatal occasion. It had been given to a negro, who had worn it since it had come into his possession. He had cut off the skirt of the coat, and his wife had sewed patches over the bullet holes in the side and breast; but there was not the slightest evidence that there had been any illegal or unwarranted tampering with the coat, nor is there any pretense that it did not show the character and location of the bullet holes, just as they appeared upon it the day of the homicide.

When defendant's witness Ditto was upon the stand, the prosecution, for the purpose of laying a predicate to contradict his testimony, on cross-examination, fixing time, place, and parties, asked if he did not tell Mat Oldham that he did not see the killing of Joiner by Levy, and that he knew nothing about it, to which the witness replied that he "did not remember whether he did or not." And again, fixing time, place, and parties, the witness was asked if he did not tell Mat Oldham that he did not see Levy shoot Joiner, and did not know anything about the killing, and was glad of it, as he did not wish to be a witness in the case. The witness replied that he "did not remember telling Mat Oldham any such thing." Mat Oldham was called by the state, to prove that the above statements were made by the said witness Ditto. Defendant objected to such contradictory evidence, upon the ground that it is only upon a denial, direct or qualified, by the witness that he had made such statements, that proof of his having done so was authorized and allowable. The court overruled the objection, and permitted the contradictory statements to be proved. This was not error. In Walker's Case, 17 Tex. App. 16, it was held that "when a witness denies, or fails to remember, that, on former occasions, he made statements inconsistent with his testimony on the trial, evidence that he did make such statements is admissible, upon the establishment of a proper and sufficient predicate."

Upon the admissibility of this character of evidence, the supreme court of Alabama say: "The rulings in such cases have not been uniform. Phillips, in his work on Evidence, says that TINDAL, C. J., in a case before him, [Pain v. Beeston, 1 Moody & R. 20,] `said he had never heard such evidence admitted in contradiction, except where the witness had expressly denied the statement, and he rejected the evidence; and, on another occasion, Lord ABINGER, C. B., [Long v. Hitchcock, 9 Car. & P. 619,] expressed a similar opinion. But PARKE, B., in a case before him, [Crowley v. Page, 7 Car. & P. 791,] held that contradictory statements of a witness could be introduced to impeach his evidence, though in order to lay a foundation for them, and to enable the witness to explain them, a proper predicate must be laid. * * * If the witness admits the conversation imputed to him, there is no necessity to give further evidence of it; but, if he says he does not recollect, that is not admission, and you may give in evidence on the other side to prove that the witness did say what was imputed, always supposing the statement to be relevant to the matter at issue.' 2 Phil. Ev. (4th Amer. Ed., with Cowen & Hill's and Edwards' Notes,) 959, 960. We agree with Mr. Phillips that the ruling of Baron PARKE is the most sound, and fittest to be followed. If the rule were otherwise, it might happen that,...