Reagan v. State

• Decision Date: 21 May 1913
• Citation: 157 S.W. 483
• Parties: REAGAN v. STATE.
• Court: Texas Court of Criminal Appeals

157 S.W. 483

REAGAN v. STATE.

Court of Criminal Appeals of Texas.

May 21, 1913.

Appeal from District Court, Limestone County; H. B. Daviss, Judge.

Joe Reagan was convicted of murder in the second degree, and he appeals. Reversed and remanded.

Kennedy & Blackmon, of Groesbeck, and Williams & Williams, of Waco, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for 25 years.

In the first bill of exceptions it is shown that appellant objected to the introduction of the clothing worn by deceased at the time of the shooting. In the testimony there is a sharp conflict as to the position of deceased when the first shot was fired. Appellant contended that deceased was advancing on him with an open knife, while the contention of the state was that appellant shot deceased from ambush as he was going down the public road. Under these circumstances the shot holes in the clothing would be of material aid to the jury in determining which theory of the case was the correct one, and the court did not err in admitting the clothing in evidence.

Appellant's wife, Mrs. Joe Reagan, testified in his behalf, and on cross-examination she was asked by the state if on the morning of the shooting, and about the time of the shooting, she did not have a conversation with Mrs. Hewitt over the telephone, and which conversation was abruptly broken up. Mrs. Reagan had testified on direct examination to witnessing the shooting, and testified to facts in the first place which would tend to show her husband acted in self-defense, and, secondly, if not in defense of himself, then under circumstances which would reduce the offense to manslaughter. The state's contention was that she did not witness the shooting, but at the time was talking over the telephone to Mrs. Hewitt. This was not a cross-examination of the wife about a matter she had not testified to on direct examination, but was an effort to show the falsity of her testimony on direct examination, and was permissible. Neither did the court err in permitting Mrs. Hewitt to testify in regard to this telephone conversation in rebuttal. The testimony of the wife of one on trial, when a witness, is subject to attack the same as any other witness.

Dr. W. A. Bedford was a witness for the state, and testified to the nature and fatality of the wounds received by deceased. On cross-examination by defendant it was shown he was called by appellant, and then he was asked what appellant said to him about the difficulty. The witness would have answered, if permitted, that appellant at the time he called him stated "he had killed Henry Justice because he was at the time running on him with a knife." This testimony, if res gestæ, was very material to defendant's defense, as it would have supported the testimony of him and his wife on the trial as contradistinguished from the theory of the state as testified to by Mr. and Mrs. Plunkett and other witnesses for the state. The record discloses that at the time of the killing the doctor was in the town of Thornton, some miles away from the scene of the killing, and could not and did not know the time of the killing, nor the time that had elapsed from the time of the fatal shooting until he was called over the telephone by appellant. Mr. Reagan nor his wife, both of whom were witnesses, did not testify in regard to the length of time elapsing nor the circumstances attendant upon the calling of Dr. Bedford, and under the record before us we cannot say that the statement was made under circumstances which would bring it within the well-known rules governing res gestæ declarations. However, on another trial the court can be governed as the facts may then develop.

The only other bill of exceptions complains of the action of the court in refusing to order, after adjournment of court, the knife to be sent to this court as an exhibit. It appears that appellant introduced in evidence the knife he claimed was found by the body of the deceased, and which he said deceased was advancing on him with when he first shot. On the trial of the case appellant did not have the knife described by any witness, and seeks to cure this omission by having the knife sent to this court. The court in approving this bill attaches to it an explanation of considerable length, and we do not deem it necessary nor proper here to copy the explanation. Sufficient to say this would present no ground for reversal, as this is a matter within the discretion of the trial judge; and, if appellant was of the opinion he abused his discretion, he could have stated the circumstances in application to this court, requesting that we order the knife sent to this court, and if his application justified us in so doing we would have made such an order. And under the record before us there was no error in the court refusing to charge on presumptions arising from the use of a deadly weapon, if one was in the hands of deceased.

These are all the bills of exception in the record, but in the motion for new trial appellant devotes some 13 typewritten pages in the transcript to a criticism of the court's charge, taking up each paragraph separately, and attempting to point out some error therein. As to the charge on murder in the first degree, it is drawn in language frequently approved by this court; but, if this were not true, as appellant was convicted of murder in the second degree only, such matters would present no ground for reversal of the case.

The charge on murder in the second degree is not subject to the various criticisms leveled at it by appellant. It, too, is drawn in language frequently approved by this court. Puryear v. State, 56 Tex. Cr. R. 235, 118 S. W. 1042; Davis v. State, 57 Tex. Cr. R. 545, 124 S. W. 105; Pratt v. State, 59 Tex. Cr. R. 167, 127 S. W. 829; and Branch's Criminal Law, §§ 425, 426. The contention that this charge is subject to the same objections as the charges in the case of Roberts v. State, 156 S. W. 651, decided recently, but not yet officially reported, is not well taken. It is true that the portion of the charge defining murder in the second degree is the same in this case as in the Roberts Case, but the Roberts Case was not reversed because of any error in that part of the charge defining murder in the second degree. This definition has always been approved by this court. For a citation of authorities see Branch's Criminal Law, § 426. The error in the charge in the Roberts Case was in applying the law to the facts in the case, and in which his conviction for that degree was authorized. In that case, in applying the law, the court instructed the jury that "if they believed beyond a reasonable doubt the defendant, with implied malice, and not in defense of himself, shot and killed deceased, he would be guilty of murder in the second degree." The court held that inasmuch as the court so instructed the jury, and in that part of the charge used the words "and not in defense of himself," he should also have instructed the jury, "and not under circumstances reducing the offense to manslaughter as hereinafter defined," as manslaughter was in the case, and a failure to do so was prejudicial error. In this case no such omission occurs in the charge applying the law. The court instructed the jury as to the facts that would authorize a conviction, and stated, "and not in defense of himself, and not under circumstances which would reduce the offense to manslaughter, did unlawfully with implied malice shoot and thereby kill," etc.

The only serious questions...