Riles v. State, 21612.

• Decision Date: 14 May 1941
• Docket Number: No. 21612.,21612.
• Citation: 150 S.W.2d 1043
• Parties: RILES v. STATE.
• Court: Texas Court of Criminal Appeals

150 S.W.2d 1043

RILES v. STATE.

No. 21612.

Court of Criminal Appeals of Texas.

May 14, 1941.

Appeal from District Court, Fannin County; A. S. Broadfoot, Judge.

Lee Riles was convicted of murder with malice, and he appeals.

Reversed and remanded.

Cunningham, Lipscomb & Cole, of Bonham, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

GRAVES, Judge.

Appellant was convicted of murder with malice, and given a term of ten years in the penitentiary.

The facts from the State's standpoint show an unprovoked killing by appellant of one Melvin Warren, after having made threats against this deceased person. The appellant evidently fired six shots from a pistol at Warren, three of them taking effect.

The appellant claimed self-defense, in that deceased was making an attack upon appellant with a pocket knife.

The court's charge was excepted to, and especially paragraph six thereof wherein the trial court embodied in his charge Art. 1257a of Vernon's Ann.P.C., which reads as follows: "In all prosecutions for felonious homicide the State or the defendant shall be permitted to offer testimony as to all relevant facts and circumstances surrounding the killing and the previous relationship existing between the accused and the deceased, together with all relevant facts and circumstances going to show the condition of the mind of the accused at the time of the homicide, which may be considered by the jury in determining the punishment to be assessed. Provided, however, that in all convictions under this Act and where the punishment assessed by the Jury does not exceed five years, the Defendant shall have the benefits of the suspended sentence act." The objections to such charge being that the same "was a charge upon a rule of evidence and upon the weight of the testimony."

It will be noticed that in the Crutchfield case, Crutchfield v. State, 110 Tex.Cr.R. 420, 10 S.W.2d 119, the accused objected to the trial court's charge because same failed to embody this Art. 1257a in the charge to the jury, and Judge Lattimore, in disposing of this complaint, merely said that such article was a rule of evidence, and he was not informed by such exception how such article could be embodied in the charge either for or against the accused.

We next find in the case of Hill v. State, 130 Tex.Cr.R. 585, 95 S.W.2d 106, 107, Judge Christian making the following observation relative to such article: "Over appellant's timely and proper objection, the court charged the provisions of article 1257a, Vernon's Ann.P.C. of Texas. Said article provides a statutory rule of evidence, and, in our opinion, should not be given in charge. We express no opinion as to whether the giving of said instruction constitutes reversible error, but suggest that upon another trial it be omitted from the charge of the court. See Crutchfield v. State, 110 Tex.Cr.R. 420, 10 S.W.(2d) 119." Again, in the late case of Jamison v. State, Tex.Cr.App., 148 S.W.2d 405, 410, in referring to such Art. 1257a, the same judge said: "This article provides a statutory rule of evidence, and should not be given in charge. Hill v. State, 130 Tex.Cr.R. 585, 95 S.W.2d 106. In Crutchfield v. State, 110 Tex.Cr.R. 420, 10 S.W.2d 119, 122, Judge Lattimore, speaking for the court, used language as follows: `Appellant's bill of exception No. 4 sets out that the court's charge was excepted to for failing to embrace the provisions of article 1257a of the new law of murder (Gen. & Sp.Acts 1927, c. 274), and for not applying said article to the defensive issues presented by the evidence on behalf of the defendant and his witnesses. Article 1257a seems to lay down only a rule as to what evidence may be introduced on the trial of a homicide case, and we are not informed by such exception how such article should be embodied in the charge either for or against the accused.'"

We are of the opinion that the trial court was in error in giving this charge to the jury. In the first place, this statute is a limitation on the use of certain testimony, and allows the jury to utilize such testimony as to all relevant facts and circumstances surrounding the killing and the previous relationship between the parties, only for the purpose of assessing the punishment of the accused. This we think is an undue limitation on such testimony. We think such circumstances and relationship between the parties could also be utilized by the jury when passing upon the whole case; oftentimes such might and does affect the guilt or innocence of the party upon trial, and would be pertinent proof relative thereto.

We do not think such rule of evidence was intended to nor should be given in charge to the jury, but as far as applicable should only operate as a guide to the court in the admission or rejection of testimony. In line with the ever strengthening trend of the above quoted cases, we hold that the giving of such rule of evidence in charge to the jury was error, and as such was sufficient to cause a reversal of this cause.

Appellant has a blanket objection to paragraphs fifteen, sixteen and eighteen of such charge because he states the same "are upon the weight of the evidence and incorrectly applies the law to the facts in the case." These paragraphs appear to us to be based upon the proven facts in the case, and to correctly apply the law to such facts. To set forth these charges would unduly lengthen this opinion, but suffice it to say we think they were not subject to the offered objections.

Bill No. 5 complains because the trial court provided a...