Renn v. State

• Decision Date: 22 November 1911
• Parties: RENN v. STATE.
• Court: Texas Court of Criminal Appeals

143 S.W. 167

RENN v. STATE.

Court of Criminal Appeals of Texas.

November 22, 1911.

On Motion for Rehearing, January 24, 1912.

Appeal from District Court, Tarrant County; Jas. W. Swayne, Judge.

Ellis Renn was convicted of manslaughter, and he appeals. Affirmed

Mike E. Smith and Parker & Parker, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant was indicted, charged with the murder of Sebastian Collins. He was convicted of manslaughter. from which judgment he has appealed.

It appears from the record the deceased was intimate with the wife of defendant, whether criminally so or not is not disclosed by the record, but the intimacy had caused the separation of defendant and his wife; defendant believing the relations were improper. For some time before the killing, the defendant and deceased were on unfriendly terms. Defendant and two or three witnesses testify that deceased had made threats, and defendant testifies that he thought deceased was attempting to carry the threats into execution when he shot and killed him. The witnesses for the state testify there was to be a lodge meeting at the Temple building that night. Deceased said to a witness he thought he was going to apply for membership, when witness replied he had no application. Deceased remarked he would get an application, and started towards the stairway, when the shooting began. Deceased had no weapon, but had some papers in his hand.

In his first bill of exceptions, appellant objects to this witness being permitted to detail this conversation with deceased, as it was not shown that defendant heard it. The witness says, in answer to the question: "How long before he made that remark, that `if that was all he would go upstairs and get an application blank,' before the shooting began? `Just the time it would take him to walk that distance from where he was standing; it was less than half minute.'" We think the statement was admissible as res gestæ. The scene as it occurred should be presented to the jury as near as possible, both from the standpoint of the state and the defendant, that the jury might be enabled to draw proper deductions when all the testimony has been adduced. Merritt v. State, 39 Tex. Cr. R. 76, 45 S. W. 21; Greenl. on Ev. § 198; Underhill on Ev. § 93.

While the witness James Guinn was being cross-examined by appellant's counsel, in answer to the question, "You had known for five months of the difference between defendant and deceased?" the witness answered: "I won't say a difference between them. I knew that Renn was mistreating his wife, and she told it; and that night he and his wife was out to my house, and I found out that there was a difference, and that Renn was accusing Collins of his wife"—to which answer appellant objected, because it was not responsive to the question. The court excluded the answer, when appellant's counsel again questioned witness about how long he had known of the difference between defendant and deceased, when the witness said: "I cannot answer that without telling him—" when he was stopped by the court. The state's counsel insisted that the witness should be permitted to answer the question in his own way, while defendant insisted that he only wanted a direct answer, the court remarking during the colloquy, "I think the witness is trying to do the best he can," to which remark the defendant objected and reserved a bill of exception, when the court instructed the jury: "You will not consider that remark of the court. It was probably improper for the court to say that, but the idea of the court was different from what Judge Parker thinks it was. You need not consider any remark whatever made by the court with reference to this question." While, under article 767 of the Code of Criminal Procedure, it is improper for the court to comment upon testimony, yet this court has frequently held that such remark must be calculated to injure the defendant, to be ground for reversal of the case. McGee v. State, 37 Tex. Cr. R. 668, 40 S. W. 967; Clemmons v. State, 29 Tex. Cr. R. 279, 45 S. W. 911, 73 Am. St. Rep. 923; Rodriguez v. State, 23 Tex. App. 507, 5 S. W. 255. The remark we do not think resulted in any injury to the appellant, and especially so when they were at once instructed not to consider it.

State's counsel acted improperly in asking one of the defendant's witnesses if he had not been arrested for whipping his wife, if he had not been arrested for adultery, and if he had not been arrested for committing an aggravated assault on his wife. The court sustained the objections of defendant to each of these questions, and we are at a loss to know why counsel for the state will insist on asking questions of this character. However, as the court promptly sustained the objections, the question arises, Was it such error as would be hurtful to defendant? for, as said by Judge Davidson, in Fitzpatrick v. State, 37 Tex. Cr. R. 30, 38 S. W. 808 (in which case the defendant was compelled to answer that he had been convicted of an assault and fined) "notwithstanding this impeaching testimony should not have been admitted, was it of a character to injure or impair the rights of appellant?"—and under the record in that case it was held harmless error. It is not very slight error that should call for a reversal of a case; it is only such errors as might and probably did work injury to the defendant. This witness did not claim to have seen the difficulty, and was not a witness to defendant's plea of self-defense, and, inasmuch as the defendant was only found guilty of manslaughter, we do not think the error was such that the case should be reversed. However, such practice should not be indulged in, and if from the whole record, even though the questions are not required to be answered, it appears that the jury was probably influenced by such improper conduct, we would reverse and remand for another trial.

The appellant having taken the stand and testified in his own behalf, there was no error in permitting the state to introduce his evidence at the habeas corpus trial in rebutbal, for the purpose of impeachment. Collins v. State, 39 Tex. Cr. R. 441, 46 S. W. 933; Preston v. State, 41 Tex. Cr. R. 308, 53 S. W. 127, 881.

Bills of exception Nos. 5, 6, 7, 8, 9, and 11 all relate to the impeachment of the defendant's witness Will Vaughn. Vaughn testified for the defendant that deceased, Collins, actually carried a pistol, and often left it at his barber shop, and had left it there the morning of the day of the killing; that late in the afternoon deceased came to the shop and got the pistol. Before leaving with it, he had asked witness for oil to clean his pistol. He let him have it and deceased took the pistol to pieces and cleaned and oiled it, when the witness says the following conversation took place: "During the time that he was oiling the gun, I asked him his object for oiling up. `Old boy, you kind of fixing up a little, aren't you?' and he says: `Yes; I am expecting to use it.' I says, `You think you will go out shooting at target practice?' He says: `No; I don't.' He says, `Renn has said something to me I don't like, and I am going to whip him to-night, or kill him.' I says: `Collins, the very idea you talk that way! I am ashamed of you, knowing how close you are, even to have to talk like you would even do a thing like that. Would you infringe on my feelings, me a friend like I am?' He says: `That doesn't matter. My mind is ready composed, and I will not be deposed.'" The witness testified that Ruby Morrow was working for him, and was present when this conversation took place with deceased; that he told defendant, Renn, about this conversation the same evening, and only a short time before the shooting. On cross-examination, he was asked if he had testified that the name of the girl who was there was Ruby Morrow, and he answered: "Yes; I said that was the girl"—but he added that he had six or eight girls there during the year. He was also asked if, on the night of the killing and a short time thereafter, he (witness) had not told Nick Lightfoot that "Renn had killed Collins, and that Renn [defendant] was in his barber shop that evening, and had told him [Vaughn] that he was going to kill Collins [deceased] that night," which statement witness denied. He was also asked if, subsequent to this time, in the presence of Mr. Wilkinson and Ed Loving, he did not deny making the statement to Lightfoot, and at said time said "he did not know anything about the case at all," which statement was denied by the witness. He was also asked, on cross-examination, if the following conversation did not take place between witness and Renn, in the presence of Adam Sims: If a short time before the killing Ellis Renn (defendant) did not walk into his (Vaughn's) barber shop, and say: "I have made up my mind to do it. I have just got to do it"—and witness Vaughn replied to Renn: "Well, you can have my last dollar." All of which was denied by the witness. Again, on cross-examination, he was asked if, in the presence of the said witness, he did remark when the shooting was heard, "I guess that is Renn now."

In rebuttal, the state was permitted to prove by E. H. Morrow that he was the father of Ruby Morrow; that she was dead, but at the time Renn killed Collins she was not in Vaughn's shop in Ft. Worth, but was in McGregor, Tex., teaching music; and proved by Nick Lightfoot that Vaughn, on the night of the killing, had told him that "Renn had killed Collins, and Renn had told him (Vaughn) that he was going to kill Collins that night;" and by Sims that he was present and heard Renn (defendant) tell witness Vaughn: "I have made up my mind to do it. I have just got to do it"—and Vaughn said to him, "Well, you can have my last dollar" and at the time of the shooting remarkeo "I guess that is Renn now;" and by the witness Lightfoot that when he asked Vaughn, subsequently, in the presence of Wilkinson...