Newton v. State

• Decision Date: 15 March 1944
• Docket Number: No. 22679.,22679.
• Citation: 180 S.W.2d 946
• Parties: NEWTON v. STATE.
• Court: Texas Court of Criminal Appeals

180 S.W.2d 946

NEWTON v. STATE.

No. 22679.

Court of Criminal Appeals of Texas.

March 15, 1944.

Rehearing Denied June 14, 1944.

Appeal from District Court, Lamb County; C. D. Russell, Judge.

W. R. Newton was convicted of assault to murder, and he appeals.

Reversed and remanded.

J. Alton York, of Bryan, T. Wade Potter, of Littlefield, E. A. Camp, of Rockdale, E. B. Camp, of Cameron, and R. M. Lyles, of Angleton, for appellant.

Harold M. Lafont, Dist. Atty., of Plainview, E. A. Bills, of Littlefield, and Ernest S. Goens, State's Atty., of Austin, for the State.

BEAUCHAMP, Judge.

Appellant was assessed a penalty of seven years upon his conviction of the charge of assault to murder.

The prosecuting witness, Dr. Roy Hunt, and appellant had been acquainted with each other while students in medical college at Galveston. Appellant completed his course a year in advance of Dr. Hunt and took an internship at a hospital in Houston. During the following year, Dr. Hunt served an internship in the same hospital. At the hospital each became acquainted with Miss Ruth Nichols, a nurse who married appellant. This marriage took place on April 16, 1935. According to the evidence of Dr. Hunt she confided in him the fact of her marriage to Dr. Newton on the date of her resignation from the hospital. Dr. Hunt had associated with her frequently before this information came to him. Dr. Hunt later married and went to Littlefield to practice his profession while Dr. Newton had located in his home town of Cameron in Milam County and engaged in the practice of medicine. The internships were served in 1934 and 1935 respectively. No particular friendship existed between the two and no conflict had occurred. Littlefield and Cameron are something like four hundred miles apart and the parties had no communication with or from each other, directly or indirectly, during the period of time after their school days. So far as the record shows, Dr. Hunt and Mrs. Newton had no communication and they had not seen each other since she left the hospital following a visit after her resignation in 1935.

During the evening of May 20, 1942, Dr. Hunt had three telephone calls from a lady, giving her name as Mrs. Ruth Newton. The first call was at eight-thirty, the second at ten-thirty and the third at about twelve o'clock. The contents of these conversations are not in the record nor do we mean to suggest that they should have been offered. Neither is it shown whether or not the first two calls were local or long distance. During that evening, Dr. and Mrs. Hunt were entertaining some friends. When the third call was made at about twelve o'clock he told his wife and the friends who called him. The State was permitted over objections to introduce these visitors and Mrs. Hunt as witnesses, all of whom testified that Dr. Hunt at that time told them who was calling. Several bills of exception complain of this evidence and will be hereafter discussed.

Dr. Hunt testified that in answer to the call he went out on the highway in the direction of Lubbock to the point designated and there found a car on the right hand side of the road headed in the direction of Lubbock, with the parking lights on. He approached the car and addressed the lady at the wheel, calling her Ruth and remarking on the length of time since he had seen her. He was within a foot of her and was positive as to her voice and general appearance. He also identified her by her voice in the three telephone conversations. She asked him to come around and get into the car, saying she wanted to talk to him and that it would only take about two minutes. As he walked in front of the car and toward the right side, the lights were flashed on him in full force. He heard a noise in a ditch by the side of the road and upon looking, saw a man approaching him from the rear of the car whom he recognized as Dr. Newton. After a brief statement, Newton began shooting. The victim fell but managed to get up and make his escape by hiding in a furrow in the dark a short distance away. He described an apparent search for him which failed to reveal his whereabouts, after which the car drove off in the direction of Lubbock. This was between twelve and one o'clock at night on the morning of May 21st. He succeeded in getting to his car and drove back to Littlefield where he was operated on that night and survived wounds that were described as exceedingly dangerous. His statements identifying appellant and his wife were positive and unequivocal. Other witnesses identified the wife as the party who made a telephone call from a service station at about twelve o'clock on the night of the shooting.

Appellant's defense was that of an alibi. A large number of witnesses from his home town of Cameron testified to his good reputation and that they had seen him late in the afternoon of May 20th in Cameron at an hour making it impossible for him to reach Littlefield at twelve o'clock that night. Testifying in his own behalf, appellant denied his presence and denied that he was the person that shot Dr. Hunt and related a story of his leaving Cameron between five-thirty and six o'clock for a business trip to Houston where he spent the night. The Sheriff and the Sheriff's wife from Caldwell testified that both appellant and his wife were in Caldwell at a late hour on their way to Houston. A telephone call from officers at Littlefield to the officers at Cameron early May 21st, caused a search to be instituted for appellant and he and his wife were located in Houston at about eleven o'clock in the forenoon and taken into custody at about one o'clock in the afternoon and returned to Cameron and there delivered to the Sheriff from Littlefield.

If the State's evidence is to be relied upon and Dr. Hunt was in fact able to and did identify either Mrs. Newton or Dr. Newton, then the evidence produced by Dr. Newton on his alibi can not be true. Conversely, if he was at the places at the times stated by any of his witnesses he could not have been at Littlefield at the time of the assault. A sharp issue is directly drawn as to whether or not Dr. Hunt, however sincere in his belief, was in fact correct in identifying the parties as Dr. and Mrs. Newton. This is the real issue in the case. No denial is made of the fact that someone called him as related, representing herself to be Ruth Newton or that Dr. Hunt went to the place of the assault so believing. It, therefore, appears that the evidence given by the guests in Dr. Hunt's home to the effect that Dr. Hunt told them who called him became of extreme importance, not merely to corroborate Dr. Hunt in his testimony that he received a call, but also on the question of the identification of Mrs. Newton as the party who called him. The issue is as to whether or not she was in fact the party she represented herself to be. The question of law here presented is upon the admissibility of the testimony reflected by the bills and must be considered in the light of the issue before the court.

The bills relating to the testimony of each of the several witnesses are identical, at least in substance. We quote the question contained in Bill of Exception No. Nine, addressed to Mrs. Hunt: "State whether or not Dr. Hunt immediately upon hanging up the receiver of the telephone told you and the others present who called." The answer was: "He did." A similar question with the same answer is found in each bill taken to the witnesses testifying on the subject. These bills have given us much concern and it is our opinion that they reflect error. In the brief filed in behalf of the State by the district attorney we find no authorities cited supporting the contention that this testimony is admissible as res gestae statement. The brief says: "It was certainly permissible to prove by the State's witnesses that Ruth Newton was in Littlefield the night of the shooting." This will be conceded, but the question is whether or not the evidence received is proper for that purpose. A conversation had between Dr. Hunt and his guests in the absence of appellant could ordinarily bear no relationship to the guilt or innocence of appellant. Admittedly, the witnesses could not have been permitted to detail the things which Dr. Hunt said to them concerning the matter. This is so well recognized that citation of authorities would hardly seem necessary. From the State's brief we copy the following as grounds and explanation for the contention that the evidence is admissible: "The testimony of the witnesses Henry, Mrs. Roy E. Hunt, Dr. Janes and Broome is that after Roy E. Hunt talked over the telephone he told them whom he talked to. Now these witnesses did not tell the jury who Roy E. Hunt told them he talked with but merely stated to the jury that Hunt did tell them the name of the person with whom he talked without the witnesses repeating the name to the jury. There was no damage."

We hardly think that the question and answer considered with the record could be given the construction for which the State contends. They had as well have told the jury that Dr. Hunt told them that Mrs. Newton called and wanted to see him as to have said: "He did". In view of the question and of the answer in connection with the testimony which Dr. Hunt had given, it could have no other meaning to the jury, and presented to them that he at that time identified Mrs. Newton over the telephone just as he testified on the witness stand that he did. If the party making the call were some other person representing herself to be Mrs. Newton and had successfully created the impression on Dr. Hunt that she was Ruth Newton, the things would have occurred in the Hunt home in the same way they would have had it in fact been Mrs Newton. While the evidence was exceedingly damaging on the real issue in the case, it can not be properly accepted for the purpose and effect which it in reality had. The doctrine of res gestae is clearly not applicable. See Branch's...