Parker v. State

• Decision Date: 04 May 1904
• Parties: PARKER v. STATE.
• Court: Texas Court of Criminal Appeals

80 S.W. 1008

PARKER v. STATE.

Court of Criminal Appeals of Texas.

May 4, 1904.

Appeal from District Court, Marion County; P. A. Turner, Judge.

T. J. Parker was convicted of murder, and appeals. Reversed.

Sam D. Snodgrass, A. S. Zachry, and L. S. Schluter, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of 18 years; hence this appeal.

This case is one depending on circumstantial evidence; the theory of the state being that appellant was opposed to the marriage of his daughter to deceased, which occurred about 20 days before the homicide. The state's case depended on the identity of appellant as the person who committed the homicide. This involved a number of circumstances, which, it is insisted, pointed to appellant—such as former conduct of appellant toward deceased, particularly after intermarriage of deceased with his daughter; also tracks found at and near the place of the homicide, and leading to the home of appellant something like a mile or mile and a half distant; and the correspondence of such tracks with those of appellant; and the trailing of these tracks by witnesses, and also by a dog, from the scene of the homicide to the home of appellant. Appellant relied upon the want of testimony sufficient to connect him with the homicide. There is also testimony in the record tending to show appellant's condition of mind at the time of the alleged homicide, suggesting he was not in a sane condition of mind at that time, and also some evidence suggestive of alibi.

Appellant insists that the court committed error in admitting the testimony of J. D. Stafford as to tracks. The substance of his testimony, as taken from the bill, is as follows: That he found a track near the scene of the homicide leading from the direction of the killing toward defendant's house. The tracks seem to have been made by a worn everyday shoe; that he did not measure these tracks, nor did he measure the track or shoe of defendant after the homicide; that he saw the shoes defendant had on after the homicide, but did not believe said shoes would make the track he found on the ground; that they were better shoes, and would have made a better track, but the length and size of them were about the same; that he did not have defendant make a track and compare it with the track he found going from the scene of the killing in the direction of the house; that he just observed his foot; that he saw him make a track in the sand, and it was about the same size shoe as the other track; it looked to be about a No. 8. This was objected to by appellant on the ground that, in the absence of some measurement or some comparison of the tracks found on the ground and the shoe worn by defendant after his arrest, witness was not authorized to give his opinion as to the similarity of said tracks. In effect, we understand the contention urged by appellant to be that witness failed to detail any such facts, in connection with the tracks found on the ground and of shoe-tracks known by him to have been made by defendant, as would authorize him to give an opinion as to the similarity of the tracks on the ground and tracks made of shoes worn by defendant. In order to support his contention, appellant refers us to Gill v. State, 36 Tex. Cr. R. 594, 38 S. W. 190; Grant v. State, 42 Tex. Cr. R. 275, 58 S. W. 1025; Smith v. State (Tex. Cr. App.) 77 S. W. 455. On the same subject the state has referred us to a number of authorities, beginning with Thompson v. State, 19 Tex. App. 593. In Thompson's Case, which is followed by Clark v. State, 28 Tex. App. 195, 12 S. W. 729, 19 Am. St. Rep. 817, and other cases, it appears that the court, under a state of facts no stronger than here presented, permitted the witnesses to give their opinion to the jury as to the similarity of tracks found upon the ground and tracks made by defendant, or tracks that would be made by shoes known to be worn by him. In Clark's Case the court seems to predicate its opinion that the evidence was admissible under the authorities which authorize the witness to give a shorthand rendering of the facts. More recently, however, this court has held in a number of cases that, before a witness can give his opinion to the jury as to the similarity of the tracks, the witness must testify to something more than a mere casual observation of the tracks found at the locus in quo and tracks made by defendant and known to be his. Before he can give his opinion, the witness must have made some measurement of the tracks found upon the ground and the foot or shoe of defendant; or that he made some comparison between tracks found upon the ground and shoes known to be defendant's—as placing the shoes of defendant in tracks on the ground; or, if there are peculiarities in the tracks made upon the ground, such as worn places, or peculiar tacks, and such places or tacks were found upon the shoes known to belong to defendant, the witness can detail such facts, and can then give his opinion as to the matter of similarity between said tracks. McLain v. State, 30 Tex. App. 482, 17 S. W. 1092, 28 Am. St. Rep. 934; Rippey v. State, 29 Tex. App. 43, 14 S. W. 448; Grant v. State, 42 Tex. Cr. R. 275, 58 S. W. 1025; Moseley v. State, 67 S. W. 103, 4 Tex. Ct. Rep. 435; Thompson v. State, 77 S. W. 449, 8 Tex. Ct. Rep. 768; Smith v. State, 77 S. W. 453, 8 Tex. Ct. Rep. 843. It occurs to us that the above decisions announce the better doctrine, and we accordingly hold that the witness Stafford did not detail sufficient facts in order to give his opinion to the jury as to the similarity of the tracks made upon the ground and tracks known to be made by appellant. We would not be understood, however, as holding that the witness Stafford was not authorized to testify before the jury as to the tracks he found upon the ground, where he found them, and to what point they led, and the size thereof as they appeared to him, and other conditions and circumstances connected therewith. He could also testify before the jury as to the size, shape, etc., of any track or tracks that he may have seen defendant make after the homicide, and, without giving any opinion of his own, leave the jury to draw their own deductions therefrom. Ransom v. State, 70 S. W. 960, 6 Tex. Ct. Rep. 259.

Appellant also assigns as error the action of the court permitting the witness Lucas Edmunds to testify as to tracks. This witness stated, in substance: That he found a track near the scene of the killing, and followed it to where defendant lived. That said tracks appeared to be made by a No. 8 or 9 shoe, and appeared to be shoes that were worn and run down to some extent. That he did not see the track all the way from the scene of the homicide to where appellant lived; that he began in about 40 yards of the south end of the house, where deceased was killed, and followed the track to the branch, about 150 yards from said house. That here he lost the track for some 50 yards, and struck it again, and followed it pretty regularly until they reached the woodland. That they were unable to find any tracks in the woodland, except one or two. Said woodland was about 400 or 500 yards across. After passing out of the woodland, they found one other track, about 50 or 75 yards from defendant's house. The tracks witness found along the way looked like the other tracks that he found near the place of the homicide. That he thought they were the same tracks. That there was something about the tracks that would attract attention, and this peculiarity was in all the tracks he found. This testimony was objected to on the part of appellant because witness was not sufficiently definite about the size and appearance of said tracks to give his opinion that the track found in the woodland was the same track found near defendant's house; and that it was not shown that witness took any measurement of the tracks, and he stated he did not know whether it was made by a No. 8 or 9 shoe, and that he did not detail any peculiarities about the tracks. However, the court, in explanation of the bill, states that the witness said that the tracks he followed "appeared to have been made by a tolerably old and worn shoe, and one of the shoes was a little turned; but one shoe was turned a little worse than the other, and it appeared that it was an old shoe, a work shoe. Some of the witnesses measured the track. It had rained that day. The track that was trailed had been rained on. All other tracks were fresh, and made since the rain. The track was trailed from about 40 yards of the scene of the killing almost continuously to the wood lot that surrounded the dwelling house of defendant. The witness described the size and appearance of the tracks and their peculiarity." It will be observed that this witness, according to the bill, did not undertake to give his opinion as to the similarity of the tracks he trailed upon the ground with shoes known to be worn by defendant, or tracks known to be made by him, but merely testified before the jury that he trailed certain tracks from near the scene of the homicide to or near appellant's home, describing said tracks, and the tracks he trailed appeared to his mind to be the same tracks. In our opinion, this testimony was admissible as a circumstance tending in some degree to connect appellant with the offense. He was shown by other witnesses to have worn an 8 or 9 shoe, and this witness trailed certain tracks which appeared to him to have been made by a No. 8 or 9 shoe from near the homicide to or near appellant's home. We do not believe the admission of this testimony conflicts with any of the opinions referred to, but is in accord with Ransom's Case, supra. As heretofore stated, this was a case depending on circumstantial evidence, and every circumstance which might tend in any degree to identify appella...