McDougal v. State

• Decision Date: 18 April 1917
• Docket Number: (No. 4353.)
• Parties: McDOUGAL v. STATE.
• Court: Texas Court of Criminal Appeals

194 S.W. 944

McDOUGAL v. STATE.

(No. 4353.)

Court of Criminal Appeals of Texas.

April 18, 1917.

Dissenting Opinion May 7, 1917.

Appeal from District Court, Smith County; R. M. Smith, Judge.

Ira W. McDougal was convicted of murder, and he appeals. Reversed and remanded.

See, also, 185 S. W. 15.

Simpson, Lasseter & Gentry, of Tyler, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.

MORROW, J.

This appeal is from a conviction for the offense of murder, with punishment assessed at 19 years' confinement in the state penitentiary.

That appellant killed the deceased was a conceded fact, and his excuse was self-defense. This issue as well as manslaughter and provoking the difficulty were submitted to the jury. Appellant's wife was an eyewitness, and testified to facts tending to show that the deceased was the aggressor, or at least at the time of the homicide the deceased was attacking appellant with a knife with the declaration that he intended to kill him. On cross-examination it appeared that the appellant's wife had remained in Lindale, where the homicide took place, some little time, about a half hour, after the homicide, and then started for her home, four miles distant, and traveled in a wagon with her son, and while so traveling she met Isom Vickery and his wife traveling toward Lindale. The state's counsel asked her if on this occasion when her wagon was passing the vehicle in which Isom Vickery was traveling the latter did not say to her, "Who killed him?" and if she did not reply, saying: "Ira killed your papa because he sued him; I tried to keep him from it, but I couldn't do it." Objection was made to this testimony on the ground that it was not proper cross-examination of the wife, not germane to the direct examination, and called for an opinion of the witness. The objection was overruled, and, Mrs. McDougal having denied the conversation, the state's counsel proved by Isom Vickery and by Mrs. Isom Vickery that the conversation named did occur. This was objected to as hearsay and as undertaking to prove an opinion and conclusion and as being an inquiry not germane to the direct examination, which objections were overruled, and exception duly reserved.

We do not think that this expression comes within the rule stated in those cases in which it has been held that expressions constituting a shorthand rendition of the facts are admissible, though they bear the appearance of a mere opinion. These cases are cited in Branch's Ann. P. C. p. 1036, but they all recognize the law to be that, where the statement is a mere opinion, even though in a dying declaration, it cannot be admitted in evidence. This is illustrated in Manley's Case, 62 Tex. Cr. R. 392, 137 S. W. 1137. The dying declaration in that case contained the following:

"I was stabbed by one of the soldiers at the fair grounds to-day, and without any word or act of my own that could be regarded as hostile or a provocation."

The court held that the words "that could be regarded as hostile or a provocation" were the opinion or conclusion of the dying man and inadmissible.

In Sorrell's Case, 74 Tex. Cr. R. 505, 169 S. W. 303, the dying declaration contained the words:

"He was shot down like John Ross."

This was declared objectionable because an opinion. The same principle was adhered to in Drake v. State, 65 Tex. Cr. R. 282, 143 S. W. 1157, where the quotation from the dying declaration was that a coward shot him.

In Bateson's Case, 46 Tex. Cr. R. 35, 80 S. W. 88, the dying declaration contained the words:

"They murdered me without cause."

This court held that this statement should have been excluded. The rule is stated in Medina v. State, 43 Tex. Cr. R. 52, 63 S. W. 332, as follows:

"A dying declaration is admissible to show all the facts immediately connected with the homicide to which a witness, were he present, could testify. This would exclude narratives of past transactions and opinions or mere conclusions of the declarant" — citing Roberts v. State, 5 Tex. App. 141; Warren v. State, 9 Tex. App. 619, 35 Am. Rep. 745; 1 Greenl. Ev. § 159; Boyle v. State, 105 Ind. 469, 5 N. E. 203, 55 Am. Rep. 218; People v. Abbott, 4 Pac. 769.¹

In the Williams Case, 40 Tex. Cr. R. 570, 51 S. W. 226, the dying declaration said:

"When they came into the office I treated them perfectly gentlemanly. They added insult after insult."

The admission of this was held error.

The fact that, where the defendant uses his wife as a witness, the state may conduct a cross-examination germane to the direct examination is not in question. That is settled by the decisions of this state. Branch's Ann. P. C. § 152, p. 86. From the same author (page 87) we quote the limitation or qualification upon this rule:

"It is error to permit the state to go into new matter on cross-examination of the wife of defendant either for the purpose of impeachment or to draw out circumstances or statements adverse to defendant. Cross-examination is not a device by which the state is entitled to lay predicates as to matters about which the wife of defendant could not be cross-examined or contradicted, or to get before the jury her opinions of defendant's guilt, or her apprehensions of danger, or her hearsay statements as to new matter. [Citing cases.]

"If the state goes into new matter on cross-examination, the witness becomes, for the time being, a state witness. The state is not entitled on cross-examination of the wife of the defendant to go into new matter, and thereby make the wife of defendant a witness for the state against her husband. The wife of the defendant may be cross-examined by the state only as to such matters as naturally spring out of and appertain to her testimony given on her direct examination. [Citing cases.]"

The subject here emphasized is that the opinion as to the guilt or innocence of a defendant on trial or to the cause of the homicide is not admissible in evidence. In Marsh's Case, 54 Tex. Cr. R. 148, 112 S. W. 323, the wife of the appellant while on the stand as a witness for him was on cross-examination asked by the prosecution if she had not said to Will Brown on an occasion named that it was nothing in the world that caused the trouble except a foolish remark of Kathleen Adams. Upon her denying this statement, Will Brown was put upon the stand for the state, and testified that she made it. His testimony was limited in the court's charge to impeaching purposes. Judge Ramsey, delivering the unanimous opinion of the court, held this proceeding error. We quote from him as follows:

"It formed no part of the transaction or the conversation or matter inquired of from Mrs. Marsh on her original examination. It wholly related to another transaction subsequent to the killing, and was not receivable either for the purpose of impeachment or as a circumstance adverse to appellant. Again, we think the testimony was objectionable in that it called for the opinion of the witness as to the killing. For full discussion of this matter see Richards v. State, 53 Tex. Cr. R. 400, 110 S. W. 432; Jones v. State, 38 Tex. Cr. R. 87, 40 S. W. 807; Id., 41 S. W. 638, 70 Am. St. Rep. 719; Messer v. State, 43 Tex. Cr. R. 97, 63 S. W. 643; Washington v. State, 17 Tex. App. 197; Hoover v. State, 35 Tex. Cr. R. 342, 33 S. W. 337; Gaines v. State, 38 Tex. Cr. R. 202, 42 S. W. 385; Creamer v. State, 34 Tex. 173; Greenwood v. State, 35 Tex. 587; Merritt v. State, 39 Tex. Cr. R. 70, 45 S. W. 21; Johnson v. State, 28 Tex. App. 17, 11 S. W. 667; Hamilton v. State, 36 Tex. Cr. R. 372, 37 S. W. 431; Owen v. State, 7 Tex. App. 329; Red v. State, 39 Tex. Cr. R. 414 ; Bluman v. State, 33 Tex. Cr. R. 43, 21 S. W. 1027 ."

In Taylor's Case, 74 Tex. Cr. R. 3, 167 S. W. 61, the majority of the court expressed the opinion that the Marsh Case, supra, was not sound, and that it should be overruled so far as it was in conflict with the Taylor Case, supra, and the decisions there cited. The decisions cited are those which establish the rule that a wife may be cross-examined on matters brought out on her direct examination. In the Taylor Case it was not contended that the testimony of the wife constituted her opinion, but the difference between the majority of this court in writing that opinion and Judge Ramsey in writing the opinion in the Marsh Case, supra, involved the extent to which cross-examination of the wife might go. In substance, as we understand it, the correctness of the rule as quoted from Branch's Ann. P. C. above was not involved, but its application only. We therefore assume that that part of the Marsh Case in which Judge Ramsey holds that the wife's opinion as to the cause of the homicide is not admissible is not in conflict either with the Taylor Case or the authorities therein cited. In Drake's Case, 29 Tex. App. 276, 15 S. W. 730, this court, in an opinion by Judge Willson, on rehearing, disposed of substantially the same character of testimony in the following language:

"It did not involve facts in evidence, but merely the conclusion of the witness. It was not the statement of a fact, but of a conclusion — a mere opinion or belief of the witness. It was therefore a statement collateral to the issue as we understand the authorities upon this subject. In addition to the citations of authorities in our former opinion bearing upon this question, we refer to Wharton's Criminal Evidence, § 482, 1 Wharton on Evidence, § 551, and 1 Greenleaf's Evidence, § 449. As to the second proposition, we held, and still hold, that the statement inquired about involved the opinion merely of the witness. A statement of opinion merely cannot be used to impeach a witness, except when opinion is an issue or where the opinion stated goes to show bias of the witness. Whart. Crim. Ev. § 482; 1 Greenl. Ev. § 449; Holmes v. Anderson, 18 Barb. [N. Y.] 420."

In Watson's Case, 50 Tex. Cr. R. 171, 95 S. W. 115, a witness who had testified to facts showing self-defense was impeached by showing...