Melton v. State

• Citation: 83 S.W. 822
• Parties: MELTON v. STATE.
• Decision Date: 17 December 1904
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

83 S.W. 822

MELTON v. STATE.

Court of Criminal Appeals of Texas.

December 17, 1904.

Appeal from District Court, Kaufman County; J. E. Dillard, Judge.

Joe Melton was convicted of murder in the second degree, and he appeals. Reversed.

Young & Adams, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

This conviction is for murder in the second degree, the punishment being fixed at 15 years in the penitentiary.

The state introduced Mrs. Ellington (wife of deceased) as a witness, and had her to display before the jury the blood-stained clothing worn by her husband at the time of the homicide. Various objections were urged to the introduction of the bloody clothing. Under the authority of Cole v. State, 75 S. W. 527, 8 Tex. Ct. Rep. 141, this evidence should not have been introduced. It served no legitimate purpose; it did not aid in any way in solving any issue in the case. There was no question in regard to the location of the wounds, their effect and character. It is permissible to introduce the bloody clothing when their introduction serves to illustrate some point or solve some question or throw light upon some matter connected with the proper solution of the case, but under no other circumstances. The introduction of this evidence did not serve to assist in the development of any matter connected with the trial, and the testimony was to inflame the minds of the jury.

The state called John Ellington (brother of deceased) as a witness, and he testified that about the 29th of June, 1903, in a store in Kaufman, he had a conversation with appellant. Appellant asked the witness if he had heard that he (defendant) had charged a man for a drink of water. An affirmative reply was received. Defendant then stated, "I will kill any son of a bitch of Ellington there is who says that I charged a man for a drink of water." During the conversation the name of deceased was not mentioned. Various objections are urged to this, among others, that the alleged threat or conditional threat was not directed against deceased; it had no connection with him; his name was not mentioned, and especially so as the killing occurred about other and entirely different matters; and that the testimony was prejudicial, etc. We are of opinion the objection should have been sustained. If this conversation tended to connect deceased with the threat or implied threat in any manner, it would have been admissible, but it did not, and, so far as the bill shows, only tended to connect John Ellington with it. Nor is there any statement in the record disclosing that deceased ever had any connection with the matter, or had made any remarks about the matter, which was the subject of the conversation. Only John Ellington and wife were mentioned in the conversation referred to in the bill.

One of the issues raised by the evidence was manslaughter. This grew out of the fact that deceased used insulting language in the presence of and to defendant's wife in the absence of the defendant, and on the morning preceding the killing in the afternoon. The killing occurred at the first meeting after the insult had been given. The state then introduced several witnesses, who were permitted to testify that they knew the reputation of the deceased, and that such reputation was that he was courteous and urbane in the presence of and towards ladies. Appellant did not put in issue the reputation of deceased. This was error. For case directly in point, see Moore v. State (Tex. Cr. App.) 79 S. W. 565. The cases of Martin v. State, 70 S. W. 973, 6 Tex. Ct. Rep. 267, and Everett v. State, 30 Tex. Cr. R. 682, 18 S. W. 674, hold the contrary doctrine. The Martin Case is based upon the Everett Case, or, rather, refers to it as authority, and to Wharton's Crim. Ev. § 60. An inspection of the Martin Case and the citation from Wharton will show that they were discussing a different question, to wit, the right of a defendant to place his character or reputation in evidence. Here the question was the right of the state to prove the good character of a witness to whom was imputed insulting conduct towards a lady. If defendant had attacked the character of deceased in regard to his politeness or urbanity to ladies, then the state could have shown that he was polite and urbane to ladies. The Martin and Everett Cases are overruled. The citation of authorities in the case, except Everett's Case, are not in point. The Martin Case cites no authority in point, except Everett v. State, supra. The Everett Case was decided without citing any authorities, and none seem to have been relied on to support the position of the court in that case. By reason of the decision of the Moore Case, supra, which was rendered subsequent to the Martin and Everett Cases, there is a conflict in the decisions of this court on the question. After a careful review of this question and authorities, we are of opinion that it is safer and better to follow the well-known rule, and overrule the Martin and Everett Cases.

The court charged the jury, in regard to the issue of manslaughter, as follows: "The jury are further instructed, if they believe from...