Redwine v. State

• Decision Date: 31 March 1920
• Docket Number: (No. 5648.)
• Citation: 221 S.W. 605
• Parties: REDWINE v. STATE.
• Court: Texas Court of Criminal Appeals

Page 605

221 S.W. 605

REDWINE v. STATE.

(No. 5648.)

Court of Criminal Appeals of Texas.

March 31, 1920.

On Motion for Rehearing, May 19, 1920.

Appeal from District Court, Eastland County; Joe Burkett, Judge.

Jewel Redwine was convicted of murder, and he appeals. Affirmed.

J. F. Cunningham, of Abilene, S. W. Bishop, of Waco, J. L. Alford, of Rising Star, B. W. Patterson, of Cisco, and J. R. Stubblefield, of Eastland, for appellant.

Alvin M. Owsley, Asst. Atty. Gen., for the State.

LATTIMORE, J.

Appellant was convicted of murder, in the district court of Eastland county, and his punishment fixed at 18 years in the penitentiary. This is his second appeal in this case, the former appeal appearing in 213 S. W. 636.

According to the uncontradicted evidence in the record, appellant, at the time of the homicide, was on the outside of a butcher shop, in the town of Gorman, in Eastland county, and deceased was on the inside of said shop. It appears that appellant, from his position on the outside, cursed deceased, and called him an opprobrious epithet, and told him to come out; also, that deceased took up a butcher's steel from the counter, and started out, and appellant then fired several shots through the screen of the window or door, killing deceased, who fell on the floor inside the shop. Deceased said to a party who came soon after the shooting: "Jewel Redwine shot me down like a dog and had no right to, and I am killed."

The appellant introduced no testimony on the trial, except that of his brother, to the effect that he had never been convicted of a crime.

But three questions are presented in appellant's brief, which we will notice in the order as presented:

By his bill of exception No. 3, it is shown that witness Todd, and a man named Parr, on the evening of the killing, were sitting on a box about a block from the scene of the homicide, and that appellant came to where they were, and sat with them and talked for a while; and presently invited Parr to come with him and get a drink of cider; that witness Todd went with them, and, after spending some little time at the barber shop, and all taking a drink of cider, witness and appellant returned to the place where they had been, sat down, and had some further conversation, in the course of which Todd was permitted to testify the following occurred, namely, that appellant stated as follows: "I took that son of a bitch up there to kill him, but he just talked so good I couldn't afford to," and that the witness Todd then remarked, "That is the wrong thing; I wouldn't think about that; that is the wrong idea;" and appellant "sorter grinned, and said, `That is what I aimed to do, and there is another son of a bitch I am going to kill in this town if he don't quit meddling with my business,' and called Eulon Ellis' name." (Eulon Ellis was the deceased.)

Appellant objected, for various reasons, to so much of this conversation as referred to any party other than deceased. The trial court admitted the entire statement, upon the theory that it was one continuous conversation, and that all of same was necessary to thoroughly understand that part relating to deceased, but told the jury that they should not consider that part of said statement which related to Parr.

It appears that the killing took place between sundown and dark, and that the conversation referred to between Todd and appellant was had on the same afternoon between 6 and 7 o'clock, and that nothing transpired between appellant and deceased after said conversation and before the killing, which is in any wise set up or claimed to have led up to or caused said homicide. We are not at all clear that this testimony was inadmissible as a statement showing a heart regardless of social duty, and fatally bent on mischief, and, therefore, as being evidence of malice on the part of appellant. See Miller v. State, 31 Tex. Cr. R. 636, 21 S. W. 925, 37 Am. St. Rep. 836; Mathis v. State, 34 Tex. Cr. R. 39, 28 S. W. 817; Taylor v. State, 44 Tex. Cr. R. 549, 72 S. W. 396; Godwin v. State, 38 Tex. Cr. R. 466, 43 S. W. 336.

From the testimony it would appear that within less than an hour after the conversation had with Todd, appellant shot and killed deceased. Just previous to the conversation mentioned, appellant had been with Parr on terms of apparent friendliness and was not angry when he made said statements, as far as the testimony shows. We are of opinion, however, that if there was anything in said statements relative to Parr, which was not admissible, it was rendered harmless by the court's action in withdrawing same from the consideration of the jury. Roberts v. State, 48 Tex. Cr. R. 210, 87 S. W. 147; Hatcher v. State, 43 Tex. Cr. R. 239, 65 S. W. 97; Trotter v. State, 37 Tex. Cr. R. 474, 36 S. W. 278; Jones v. State, 33 Tex. Cr. R. 8, 23 S. W. 793. The statement was not a threat against Parr, but was merely a statement of what appellant had intended to do, but did not do for the reasons given. We do not think this question is governed by the rules laid down in the cases cited by appellant, where the evidence admitted, and later attempted to be excluded, was of such prejudicial character as that its necessary effect was harmful to the accused. While there may be some cases in which the harm done is so great that the exclusion of the testimony will not suffice, these are the exceptions and the weight of authority is the other way. Sutton v. State, 2 Tex. App. 342; Nalley v. State, 28 Tex. App. 387, 13 S. W. 670; Morgan v. State, 31 Tex. App. 1, 18 S. W. 647; Jones v. State, 33 Tex. Cr. R. 7, 23 S. W. 793.

There is a lengthy bill of exceptions in the record, reserved to the action of the trial court in fining one of the attorneys for appellant, and requiring him to pay said fine before said trial proceeded, and said bill further contends that appellant was denied certain evidence in that connection. It appears from the record that the trial court directed counsel not to repeat a question which had been asked and answered several times, and which related to the testimony of a witness at a former trial. Upon his repeating the question again, the trial court assessed a fine of $25,...