Mason v. State

• Decision Date: 01 March 1916
• Docket Number: (No. 3969.)
• Citation: 183 S.W. 1153
• Parties: MASON v. STATE.
• Court: Texas Court of Criminal Appeals

183 S.W. 1153

MASON v. STATE.

(No. 3969.)

Court of Criminal Appeals of Texas.

March 1, 1916.

Appeal from District Court, Johnson County; O. L. Lockett, Judge.

Will Mason was convicted of murder, and appeals. Reversed.

J. B. Haynes, of Cleburne, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.

DAVIDSON, J.

Appellant was convicted of murder. The jury assessed his punishment at six years' confinement in the penitentiary.

The record, so far as the statement of facts is concerned, is not materially different from what it was on the former appeal as reported in 72 Tex. Cr. R. 501, 163 S. W. 66.

By bill of exceptions No. 14 it is shown that while Mrs. Crook was testifying in behalf of the defendant, and after she had testified, in substance, that Oscar Shelton, the deceased, came to her house one morning about three weeks before the killing, and said to her, in substance:

"Mrs. Crook, I am mad, I am mad at Bill Mason. I get so mad I want to kill him; and that's not all; I am going to run him out of the neighborhood. I am going to get rid of him. I can't get along with him and never could"

—defendant's counsel at this time asked the witness the following question:

"At the time Oscar Shelton, deceased, was talking to you, and said that he was mad at Bill Mason, I will ask you whether or not he was mad, if you know?"

She would have answered:

"Yes; Oscar Shelton at the time was very mad."

This is claimed to be admissible and material testimony for the defendant, and the knowledge that the witness had as to whether or not the deceased was or was not mad was such knowledge that the witness could give by answering yes or no, and that it was not an opinion of the witness, but was such a fact as could be shown. The state objected because it was the opinion of the witness, and the court sustained the objection, excluding the testimony. The court qualifies this bill as follows: "Defendant was never told of this conversation." It would be immaterial whether defendant was told about the matter or not. It was a threat, and, if uncommunicated, it would tend to solve the question as to who began the difficulty, and this was a mooted question on the trial. Under the defendant's theory the deceased began the second difficulty, and all the testimony shows that he began the first difficulty, which occurred 15 or 20 minutes prior to the second difficulty which ended in the homicide. This testimony was clearly admissible. It is true, the deceased said to Mrs. Crook that he was mad and very mad, and made threats. We hardly think that this was sufficient ground, and the court does not put it upon that ground, nor did the state put it upon that ground. The state claimed it was an opinion, and the court says defendant was never told of it. The condition of the mind of the deceased at the time he made the threats was of grave import. If it was jocular, not serious, it would amount to a great deal less on its weight than if he was serious, determined, and mad and outraged with the defendant at the time he made the threats. This character of testimony has always been held admissible. It is not an opinion; it is the statement more of a fact than a conclusion. It is a sort of shorthand rendering of the fact. The facial expression, tone of the voice, and many other things of that sort in connection with statement and manner of the deceased at the time he made the statement would not be well conveyed to the minds of the jury by the witness. The fact that a man might be angry or in a good humor; that he is jocular and laughing, or serious in his statement— are matters that cannot well be conveyed to the minds of the jury. This is exemplified in many of the decisions, and in many ways.

We hardly deem it necessary at this late date to cite authorities in support of this proposition. One of the late cases is to be found reported in Duke v. State, 61 Tex. Cr. R. 441, 134 S. W. 705. This was important, it seems, under the facts of this case. The evidence shows that deceased had, on different occasions, threatened to kill or run appellant out of the country, and up to within a very short time of the day of the homicide these threats had been made. On the morning of the trouble the parties were picking cotton, the deceased coming in later than appellant, and the facts show he picked rapidly and caught up with appellant, who was picking cotton ahead of him, and as soon as he caught up with him he took off his cotton sack and went to where appellant was and raised trouble with him; that he had a rock in his hand, and grabbed appellant by his shirt collar and tore his shirt. Appellant also caught deceased by the collar. He also had a rock in his hand. They were separated by one of the witnesses, who testified, and in fact this seems not to have been a controverted fact. Appellant went away, he said, to have deceased arrested, and, after going to the house where he was living, changed his mind, and said he would go back and talk the matter over and see if they could not adjust the trouble. He seemed to be afraid of the deceased. The state, however, met this by showing by a witness that appellant, when he started away, said he would come back and have it out with the deceased. There is also a controversy as to why appellant went to the house. The state's contention is, which they introduced evidence to sustain, that he went to the house after his pistol. Appellant's testimony along this line was that he had his pistol with him in his coat, which was on a cultivator; that he put on his coat and went to the house. There is also evidence pro and con as to what occurred when appellant returned. His side of it would make the deceased again the aggressor. The state's theory of it was that appellant came back and renewed the difficulty. Under all these circumstances we think this testimony was clearly admissible.

While Albert Mason was testifying for the defendant he stated, among other things, that he was in the field picking cotton where the shooting of deceased by appellant occurred; that after the first difficulty in the field between defendant and deceased, defendant went off and afterwards returned and walked up pretty close to deceased and said something; that deceased pulled off his sack and stooped down like he was picking up something, and after he got up he had a rock in his hand, which he drew back, and appellant shot. At this juncture defendant's counsel asked the witness the following question:

"At the time Oscar Shelton had his hand drawn back with a rock in his hand, as you have just stated, and while Will Mason was standing near him, did it make any impression on your mind, and, if so, what was that impression?"

Witness would have answered:

"Yes; it did make an impression on my mind, and that impression was that Oscar Shelton was going to immediately attack Will Mason with the rock, and that he was going to immediately strike him with the rock."

This was offered as a part of the res gestæ, and because it was an original impression of the witness, viewing the facts as he saw them at the time of the occurrence, and for which no evidence could be well substituted, and that it was a part of the transaction, illustrating the effect likely to be produced by the conduct and acts of the deceased upon the mind of the defendant at the time of the shooting. The state objected because immaterial, irrelevant, leading, suggestive, and calling for the conclusion of the witness, which was sustained by the court. The court signs this bill by stating that this witness was some distance away, and his statement would be simply an opinion when the jury had all the facts and were in as good a position to form an opinion as the witness. This question came before us in the case of Latham v. State, 172 S. W. 797, and was fully reviewed in an opinion on rehearing by Judge Harper. That case fully sustains the position of appellant. The court was in error. It is unnecessary to review the Latham Case, or the authorities cited. It announces the correct rule.

These are the two main propositions stressed by appellant in his brief. He also urges that the charge is not in accord with the law nor with the rulings of this court on former appeal. Looking to another trial, and without reviewing seriatim these questions, it may be advisable to call the court's attention to the language employed in the charges. The charge on provoking a difficulty, to say the least of it, is very inartistically drawn. In this connection the court charged the jury, in connection with self-defense, that:

"If you believe beyond a reasonable doubt that the defendant, after he and deceased were separated in the first difficulty in the field, left where the deceased was and afterwards returned to the deceased armed with a pistol and went to where the deceased was picking cotton, and by his acts or words, or by both words and acts, made with the intent and purpose of provoking a difficulty with the deceased, and with the apparent intention of killing the deceased or of inflicting upon him serious bodily injury, and that such acts or words or both together, if any there were, were reasonably calculated to provoke the deceased to make an attack on the defendant, or to cause the deceased to attempt or to threaten to do so; and if the same was so used by defendant or made with such apparent intent, and if you find that under such provocation, if any, the deceased made a demonstration which reasonably indicated to the defendant that he was then in danger of death or of such serious bodily injury at the hands of the deceased; or if you believe that said acts or words, or both taken together, were reasonably calculated to provoke, and did provoke, the deceased to make an attack on the defendant— then you are instructed that the defendant could not justify the homicide on the ground of self-defense; and if he then shot and killed the deceased, under such circumstances, with...