Shumate v. State

• Decision Date: 03 November 1897
• Citation: 42 S.W. 600
• Parties: SHUMATE v. STATE.
• Court: Texas Court of Criminal Appeals

42 S.W. 600

SHUMATE v. STATE.

Court of Criminal Appeals of Texas.

November 3, 1897.

Appeal from district court, Grayson county; Don A. Bliss, Judge.

Indictment of Leland Shumate for murder. Defendant was convicted of manslaughter, and he appeals. Reversed.

C. B. Randell, J. L. Cobb, and Hazlewood, Smith & Tolbert, for appellant. Silas Hare, Jr., G. P. Webb, C. L. Vowell, and Mann Trice, for the State.

DAVIDSON, J.

Appellant was convicted of manslaughter, and given two years in the penitentiary; hence this appeal.

The following bill of exceptions appears in the record, to wit: "Be it remembered that on the trial of the above-entitled cause, when the state was introducing its testimony, and was making its case in the first place, and the witnesses W. T. Salmon and Tom Fuller were on the witness stand, and had testified to the facts of the shooting, wounding, and killing of the deceased, that defendant asked said witnesses on cross-examination as to how a difficulty between Jim Shumate and deceased and one between Tom Fuller and Tom Shumate originated, and the circumstances of the origin of the difficulty between deceased and one Jim Shumate, and the other details of the said difficulties between deceased and Jim Shumate, and between Tom Fuller and Tom Shumate, to which testimony the state objected, on the ground that it was not cross-examination, and said objection was sustained by the court, and such testimony was at that time excluded. That after the state had closed its case, and when defendant was introducing his testimony, he introduced as a witness in this case Jim Shumate, who testified in detail to every circumstance of the trouble between himself and his two brothers, Tom and Leland, and the deceased Hugh Fuller and Sam Maxey and W. T. Salmon, including the details of the inception of the fight and of all the difficulty up to and including the circumstances of the shooting and killing. Afterwards, and in rebuttal, the state introduced Tom Fuller, W. T. Salmon, and Sam Maxey, who at that time testified in detail to all of the circumstances of the beginning of the altercation between deceased and Jim Shumate and others, and all of the circumstances of that difficulty from the beginning up to the circumstances of the shooting, but did not testify as to the circumstances of the shooting, and in said testimony contradicted the testimony of Jim Shumate in many important particulars. That, after the state had again closed its testimony, the defendant offered, as witnesses in his behalf, Tom Shumate and himself, the defendant, Leland Shumate, and proposed to show by them the circumstances of the origin of the altercation between Jim Shumate and deceased, and the beginning of the altercation and all of the circumstances of the same up to the fact of the shooting, to which testimony the state interposed the objection that the same was not in rebuttal, but was cumulative of Jim Shumate's testimony, which objection was sustained by the court, and said witnesses were not permitted to testify as to said matters. That if the said Tom Shumate and the said Leland Shumate, the defendant, had been permitted to testify as to the origin of the said difficulty, and as to the circumstances of the same up to the time of the shooting, they would have testified to substantially the same facts testified to herein by Jim Shumate, at the instance of the defendant, as appears in the transcript, to which action of the court in excluding the evidence of Tom Shumate and of Leland Shumate the defendant excepts, and tenders this, his bill of exceptions No. 19. This bill is approved with the explanation that the examination of the witnesses in chief was protracted by counsel to an extreme, tedious, and, as the court deemed, an unnecessary, length; and, when counsel for the defendant announced that the defendant closed his examination in chief, the court, anticipating that counsel for defendant were holding back some testimony which should be introduced in chief, gave fair warning that the examination would from that time on be confined strictly to rebuttal testimony. Notwithstanding this warning given by the court at the time, defendant never offered himself nor his brother Tom Shumate in chief. The witness Tom Shumate was allowed by the court to testify, and did testify, in behalf of the defendant in rebuttal; and the court stated to counsel for defendant that the defendant could testify to any facts in rebuttal if he desired to do so, but his testimony would be confined strictly to rebuttal. [Signed] Don A. Bliss, Judge."

To condense: The state introduced witnesses, and proved the facts attending the shooting and death of the deceased, Fuller. The state did not go into the circumstances attending the origin of the difficulty between these parties, or any of them, but confined the testimony to the immediate facts attending the shooting and death of the deceased. Appellant proposed, in cross-examination of the state's witnesses, to go into the circumstances attending the origin of the difficulty. He was refused this privilege. After a careful perusal of the statement of facts, we believe that the difficulty in which the deceased lost his life was one entire transaction. It is true that the testimony shows some fighting between deceased and his brother, on the one side, and the brothers of defendant, on the other. There is some controversy between the state's evidence and defendant's testimony as to whether defendant was engaged in these prior difficulties; but all that occurred there was within a very brief space of time. There was hardly a cessation or lull in the fighting, from its beginning until the homicide was committed. It was all, in effect, one transaction, and it is impossible to understand the homicide itself without having before us all that occurred there between the parties immediately preceding it. The state undertook, however, under the sanction of the judge, to confine its testimony to the act of killing and the circumstances immediately surrounding it. We believe, under the rules of evidence prescribed for criminal cases, that it was the duty of the prosecution to have entirely developed the state's case before the defendant was called upon to put in any testimony; and it could not fairly develop its case until the state had put in evidence all that occurred between the respective parties on the night of the homicide. If this course had been pursued, then the defendant would have had the opportunity of cross-examining the state's witnesses upon the whole case before he was required to call the witnesses on his own behalf. He would have known exactly the shape of the state's case upon the entire transaction before introducing his own witnesses; but the court, instead of requiring this course to be pursued, cut the state's case in twain, and then would not even permit the defendant to cross-examine the state's witnesses upon the circumstances preceding the homicide on that occasion. Appellant did not choose to make the state's witnesses his own, but it appears, under the ruling of the court, was compelled to introduce his evidence as to the origin of the difficulty. He introduced one witness, and rested. The state was then permitted to introduce the same witnesses it had previously put upon the stand, and the defendant then proposed to introduce his brother Tom and himself in rebuttal of the state's testimony. The court declined to permit him to do this, and in explanation states that he had warned defendant previously that he would confine the evidence strictly to rebuttal, as he apprehended that defendant was saving something back. It occurs to us that the error was committed by the court in the first instance in allowing the prosecution to examine its witnesses only on a part of one transaction, and then in refusing to permit the defendant to cross-examine these state witnesses upon the entire transaction, including the most important part thereof, to wit, the origin of the difficulty; and, having committed this error against the defendant, it could not deprive him of the right to have the state develop its full case before he was required to close his testimony upon the issues made by the state; and, after the state had fully developed its case by its own witnesses, the defendant then had a right to introduce his witnesses, and to rebut the state's case, and he could not be deprived of this right by the arbitrary ruling of the judge in the first instance, and the court should have admitted the testimony of the appellant himself and his brother Tom Shumate.

The theory of the state was, and the testimony on its behalf tended to show, that the difficulty occurred at a party at night; that on the one side was the defendant and his two brothers and one Payne, and on the other side were the two Fuller brothers and Maxey; and that in said difficulty the defendant and his crowd were the aggressors, or, at least, they entered into the conflict, and fought willingly. Further it was contended that, however the difficulty may have originated, there was a lull in the difficulty, and the defendant interfered, and was stricken a blow by the deceased, and that he immediately retired from the conflict a short distance, procured a gun, and, when he returned, the deceased and his brother were engaged in a struggle, in which defendant's brother's (Tom's) life was in danger, and that the defendant then shot and killed the deceased, and that, at the least, such killing was manslaughter. On the part of the defendant it was insisted that the proof on his behalf showed that the deceased and his party were the aggressors and brought on the difficulty, and that be and his party fought purely in self-defense. It was...