Plew v. State

• Decision Date: 29 April 1896
• Citation: 35 S.W. 366
• Parties: PLEW v. STATE.
• Court: Texas Court of Criminal Appeals

35 S.W. 366

PLEW v. STATE.

Court of Criminal Appeals of Texas.

April 29, 1896.

Appeal from district court, Dallas county; Charles F. Clint, Judge.

Will Plew was convicted of an assault with intent to kill, and appealed. Reversed.

J. O. Davis, for appellant. Mann Trice, for the State.

HURT, P. J.

Appellant was convicted of an assault with intent to murder, and given five years in the penitentiary, and prosecutes this appeal.

1. Appellant made a motion to continue this case, which the court overruled; but he reserved no bill of exceptions thereto, and the same is not in condition to be reviewed by us.

2. On the trial of the case the defendant proposed to prove by the witness E. B. Taylor that he knew the general reputation of Collier, in the community in which he lived, as being that of a quarrelsome and pugnacious man, and that he had such reputation. The court refused to allow the witness to answer said question, and the defendant excepted. The bill itself does not show the pertinency or materiality of said testimony. If we look to the record in the case, the fact that Collier may have been a quarrelsome and pugnacious man would not affect any issue in the case. That he was a dangerous man was proved by several witnesses without objection.

3. On the trial of the case the appellant took his fourth bill of exceptions, which reads as follows: "Be it remembered that the state asked the prosecuting witness `why Will Plew shot him,' to which he answered he did not know; `all I laid it to was, I was a witness in a horse case,'—to which defendant excepted because said answer was only a conclusion of the witness, and because it was not shown that defendant had any connection with, or interest in, any horse case, and because it was not shown that defendant was ever prosecuted in any such case, nor that such was, or ever had been, pending against him, which objection the court overruled. And let it also be remembered that on cross-examination of said witness the defendant, for the purpose of showing that defendant was not a party to the case mentioned by said witness in his direct examination, asked, `Was Will Plew a party to the suit mentioned by you?' `What was his connection with it?'—which was objected to by the state, and objection sustained. That defendant expected to prove by said witness that he was not a party to any suit in court, nor a witness in any such suit, and was not in any way interested therein." The court, in approving said bill, approved the same as to the first error complained of. If it be conceded that this action of the court was equivalent to a refusal to allow the second portion of said bill, let us see what effect the action of the court in admitting the testimony offered by the state, from the witness Plew, was calculated to have upon the case. The circumstances of the shooting show, on the part of the state, a state of ill feeling existing between the defendant, Will Plew, and the witness Collier, for some time antedating the assault, and the state's evidence shows at the time of the shooting an unprovoked attempt to kill the witness Collier. Unquestionably, it was allowable for the state to prove that some motive of a malicious character actuated the defendant. But, the witness being interrogated as to the cause, he first stated that he did not know what the cause was, and then stated that he laid it to the fact that he was a witness in a horse case. This answer was evidently obnoxious, and the first objection interposed by the appellant was that it was not the statement of a fact, but a conclusion of the witness; and, second, it was such a conclusion of the witness as was calculated to produce the impression on the jury that the defendant was somehow interested in a horse case,—possibly in the theft of a horse.—and that the prosecuting witness, Collier, was a witness against him in said horse case. This evidence was very likely to impress the jury to the prejudice and disadvantage of the defendant. It was offered by the state for the purpose of assigning a motive for the shooting, and the jury would very naturally make an inference against the defendant, and put a construction upon it unfavorable to him; and in view of the fact that the verdict was for five years, instead of the lowest punishment, we cannot say but that this character of testimony may have influenced the jury. Even if we could say that it had no influence with them in reaching a conclusion of guilt, yet we cannot say that it may not have actuated them in assessing the punishment. If the vague and indefinite action of the court in approving the first part of said bill is not construed to mean a disallowance of the latter portion thereof, then the action of the court must be considered as doubly erroneous; for the...