Pryse v. State

• Decision Date: 18 November 1908
• Citation: 113 S.W. 938
• Court: Texas Court of Criminal Appeals
• Parties: PRYSE v. STATE.

113 S.W. 938

PRYSE v. STATE.

Court of Criminal Appeals of Texas.

November 18, 1908.

Appeal from District Court, Potter County; J. N. Browning, Judge.

J. M. Pryse was convicted of manslaughter, and he appeals. Reversed.

J. W. Crudgington and Reeder, Graham & Williams, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.

BROOKS, J.

Appellant was convicted of manslaughter, and his punishment assessed at two years' confinement in the penitentiary.

The evidence shows that appellant walked into a saloon in Amarillo and remained there the greater part of the day drinking. Appellant finally proposed to treat all in the house, among others, the deceased, who was a Mexican. After the parties took a drink, the appellant, having expressed a desire to go off on the train, was informed that he had but 10 minutes to reach the train. Appellant replied, "I want to talk to this party a while," and he and the deceased started back, and went into a little room at the back part of the saloon building, and in about a minute the shooting occurred. Appellant then walked out of the saloon without making a remark. The Mexican was found dead, and the justice of the peace who examined him found two small penknives in his pocket, closed up, a pencil, and a piece of paper. Appellant testified that deceased got hold of him and jerked him into this little room; that he had a pocketbook, with two $10 bills in it, in his hand; that deceased grabbed at it, and had hold of it, and also had a knife in his hand, and he, thinking deceased was trying to rob him, shot and killed him. There were no eyewitnesses to the transaction, save and except appellant and deceased.

Bill of exceptions No. 1 shows that, while appellant was testifying in his own behalf, state's counsel asked him the following questions: "Q. You didn't tell it when you came out of the room did you? A. No, sir. Q. That the Mexican was trying to rob you? A. No, sir. Q. Nor you didn't tell it in the examining trial? A. No, sir. Q. You didn't tell, either, that he was trying to rob you, or that he had a knife? A. No, sir. Q. You didn't tell anybody to search for it? A. No, sir." Thereupon defendant's counsel made the following statement: "I believe we can explain these things in our argument." To counsel's statement the court replied: "He has a right to ask him these questions." To which ruling of the court defendant's counsel then and there in open court excepted. Thereafter, and while the state's counsel was making his closing argument to the jury in this case, he referred to certain matters in his argument that the defendant's counsel thought not proper. Whereupon the defendant's counsel objected thereto, addressing his remarks in part to the state's counsel, upon which the state's counsel appealed to the court to prevent the defendant's counsel from interrupting him. The court requested defendant's counsel not to interrupt the state's counsel in his argument. Whereupon state's counsel told the jury that the defendant's story as told upon the witness stand was not reasonable wherein he told that he killed the Mexican in defense of his property and person, believing the same necessary at that time, for the reason that the defendant had not on his examining trial held in this case, or elsewhere, told before he testified from the stand in this trial that the Mexican was trying to rob him and drew a knife on him for that purpose, and that he killed the Mexican to prevent him from robbing him or taking his life, believing at the time it was necessary. Under the instructions of the court to defendant's counsel he did not interrupt the state's counsel by making an objection to this argument, but now presents bill of exceptions No. 1, covering the matters contained in this bill, and insists that under the circumstances the matters herein detailed were prejudicial to the rights of the defendant, and that defendant should have the benefit thereof; the same having been called to the court's attention in defendant's motion for a new trial.

This bill is explained by the court as follows: "As to the first paragraph of the bill, and the various questions and answers therein set out, I have to say: These questions were propounded by the district attorney on his cross-examination of the defendant, while defendant was on the stand testifying in his own behalf. The defendant's counsel casually looked up at the court and remarked in substance: `I believe we can explain these things in our argument.' And the court replied in substance: `He had the right to ask him the questions.' And I understood that to be all there was in it; in fact, I did not understand at the time that there was really any objection to the questions and answers above mentioned. As to the second paragraph of the bill, the court explains: While the district attorney was making his closing argument to the jury, one of defendant's counsel interrupted him several times, not as objections, but more as corrections of statement, which the district attorney was making as to what the testimony was. After several of these interruptions were made, the district attorney grew impatient and appealed to the court for protection against further interruption by defendant's counsel. Thereupon the court kindly but firmly directed defendant's counsel not to interrupt the district attorney again, except upon permission of the court, which direction was respectfully heeded by the counsel, and no further interruptions were made, nor was there any request for permission to interrupt, and no exception was taken to the remarks of the district attorney; in fact, the court heard no complaint until same was made in the motion for a new trial."

Clearly, under the explanation of the court, appellant has no bill of exceptions, since same shows he did not except. If a proper exception had been made to this testimony, it would not have been admissible to prove appellant's failure to testify on examining trial. McDaniel v. State, 46 Tex. Cr. R. 560, 81 S. W. 301; Wallace v. State, 46 Tex. Cr. R. 341, 81 S. W. 966; Wilkins v. State, 33 Tex. Cr. R. 320, 26 S. W. 409; Richardson v. State, 33 Tex. Cr. R. 518, 27 S. W. 139; Doors v. State (Tex. Cr. App.) 40 S. W. 311.

Bill of exceptions No. 2 shows that, after appellant stated he did not testify to certain facts on his examining trial, appellant's counsel sought to prove by him when and where he first made complaint to any person of his money being missing, and what he said about it at that time. State's counsel objected, because the matter sought to be elicited was self-serving, and could not be said to be cross-examination of what the state had brought out. The objection was sustained by the court. If permitted to answer, the appellant would have proven by his own testimony that within 10 or 15 minutes after he shot the Mexican, and immediately on reaching the jail, his person was searched by one C. J. Huskey, deputy sheriff, and certain articles on his person taken therefrom; that he then and there discovered that his pocketbook, which had contained two $10 bills, was not on his person, and that he (defendant) at that time informed said deputy sheriff that he had said pocketbook containing said bills in his hand at the time he entered the room in the saloon with the Mexican, and that immediately on...