Owen v. State

• Decision Date: 13 November 1907
• Citation: 105 S.W. 513
• Parties: OWEN v. STATE.
• Court: Texas Court of Criminal Appeals

105 S.W. 513

OWEN v. STATE.

Court of Criminal Appeals of Texas.

November 13, 1907.

Appeal from District Court, Wood County; R. W. Simpson, Judge.

John Owen was convicted of murder, and appeals. Affirmed.

M. D. Carlock, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was convicted of murder in the second degree, the punishment assessed being 48 years' confinement in the penitentiary, for the alleged murder of his wife.

The first bill of exceptions recites that, after appellant had entered his plea of not guilty and after the jury had been empaneled, he requested the court that he be allowed to state to the jury, in substance, his defense, in order that the jury might be fully informed of the nature and character and extent of his defense. To this the district attorney objected, and the court sustained the objection. Then follows in the bill matters that were intended to be stated to the jury. Article 697 of the Code of Criminal Procedure of 1895 provides, first, the indictment shall be read to the jury by the district or county attorney; second, the special pleas, if any, shall be read by the defendant's counsel, and, if the plea of not guilty is also relied upon, it shall be stated; third, that the counsel prosecuting for the state shall inform the jury the nature of the accusation and the facts which are expected to be shown by the state; fourth, the testimony on the part of the state shall be introduced; fifth, the nature of the defenses relied upon shall be stated by the counsel of the defendant, and what are the facts expected to be proved in their support; sixth, the testimony on the part of the defendant shall be introduced; and, seventh, rebutting testimony may be offered on the part of the state and of the defendant. In a subsequent article, it is provided that testimony may be introduced at any time before the argument of a cause is concluded, if it appears that it is necessary to a due administration of justice. In Holsey v. State, 24 Tex. App. 35, 5 S. W. 523, it was held that where the prosecution had failed to make a statement to the jury of the state's case, as provided in subdivision 3 above quoted, that it was not reversible error, unless it was shown or be made reasonable to appear that injury had been done the accused by such failure. We passed on a somewhat similar question to the one here involved at the present term in the case of Sue v. State, 105 S. W. 804. That case, however, is to be distinguished from this, in that appellant proposed to enter into an argument on the force and effect of his testimony in making the statement which was refused by the court. The substance of that case is that appellant would not have a right to argue his case, but simply make a statement of the issues and of the facts supporting such issues, and, further, in order to require a reversal, it must be shown that appellant suffered some injury, or that the force and effect of such refusal was reasonably calculated to injure his legal status and rights. Taking the bill here as stated in the record, we find that, when the jury were impaneled, the indictment read, and the plea of not guilty entered, appellant then proposed to make his statement. There was no error in the court refusing the statement at this stage of the proceedings. It may have been this peculiar condition of things that induced the court to refuse to permit the statement to be made. The statement was not again offered at the proper time, so far as the bill is concerned. Nor is there anything in the bill to make it appear that, in the due order of the proceedings, appellant offered to make the statement at the time authorized by the statute, or that the court refused to hear a statement or permit it to go the jury as provided by the statute. If it had been offered at the proper time, we would presume, in the absence of the contrary showing, that the court would have permitted the statement to have been made. As the bill presents the matter, we do not feel called upon to decide what would be the effect of a refusal at the proper time to hear such statement, but in passing, however, we would state wherever the statute provides a matter that may redound to the benefit of the accused on his trial, or that is authorized in his behalf, such provision of the statute should be complied with and enforced. Whatever the courts may think about such proceedings the Legislature has so provided, and the safe rule is to follow statutory enactments. To say the least of it, it will avoid questions for decisions upon appeal without any necessity for such questions.

Error is assigned with reference to the action of the court to permit the prosecution to prove that appellant cursed and abused his wife, the deceased, from about a year prior to the killing up to within a short time of the homicide. These bills are approved, with the explanation by the trial court that "the state's theory was a continuous course of ill treatment and manifestations of ill will toward his wife from the time of the marriage, and this character of evidence was admitted to show malice and ill will." There are two bills reserved to the ruling of the court permitting the witness to testify that at the defendant's house one day he heard defendant make a remark, speaking of his wife, the deceased, in reference to them going to the town of Lindale, and after this testimony was introduced the defendant said that, "when he got ready to leave, he would show them a trick." Objection was urged to this testimony. This was in the nature of a threat, and clearly admissible. The witness Willie Smith testified, over appellant's objection, that he had a conversation with appellant with reference to the deceased one day when they were going from Big Sandy in a hack, which was a day before defendant carried deceased and children to Tyler to a show some four or five months prior to the killing, in which conversation appellant stated that the deceased aggravated him sometimes when she would not live with him, so that he had a good notion of cutting her throat. Threats directly or indirectly made are admissible upon the question of motive or malice and intention of the party subsequently acting apparently or directly in line with the threat made. Evidence was introduced by the state showing that at times when appellant would be talking about his wife he was mad, or appeared to be mad and angered. Exception was reserved to this character of testimony. "It is well settled that any ordinary observer of a person is competent to testify whether or not he manifested anger or hatred toward another." 5 Enc. of Ev. p. 701; Miller v. State, 107 Ala. 40, 19 South. 37; Jenkins v. State, 82 Ala. 25, 2 South. 150; Carney v. State, 79 Ala. 14; Arnold v. Cofer, 135 Ala. 364, 33 South. 539; Fields v. State, 46 Fla. 84, 35 South. 185; State v. Shelton, 64 Iowa, 333, 20 N. W. 459; Stacy v. Portland Pub. Co., 68 Me. 279; State v. Buchler, 103 Mo. 203, 15 S. W. 331; Hardy v. Merrill, 56 N. H. 227, 22 Am. Rep. 441; State v. Pike, 49 N. H. 399, 6 Am. Rep. 533; State v. Edwards, 112 N. C. 901, 17 S. E. 521; Reeves v. State, 96 Ala. 33, 11 South. 296. The reason for the rule is thus stated: "Whether a person manifested anger or any other passion upon a particular occasion depends so largely upon the peculiar and indescribable appearance of the face and other indications at the moment that an eyewitness may be morally sure of the fact, and yet utterly unable to communicate to another such indicia with sufficient distinctness to give any satisfactory idea of the existing fact." Snow v. Boston R. R. Co., 65 Me. 230. In Reeves v. State, supra, it was held, in substance, where a party was being prosecuted for using indecent language in the presence of women, that a witness was properly permitted to testify that the defendant was talking mad. This same line of thought has been accentuated in this state in many decisions to the effect that, where matters are such that they cannot be detailed accurately by the witness so as to convey the real condition of things, such facts may be stated as near as...