Soderman v. State

• Decision Date: 07 November 1923
• Docket Number: (No. 7411.)
• Citation: 260 S.W. 607
• Parties: SODERMAN v. STATE.
• Court: Texas Court of Criminal Appeals

260 S.W. 607

SODERMAN v.STATE.

(No. 7411.)

Court of Criminal Appeals of Texas.

November 7, 1923.

Rehearing Denied March 26, 1924.

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Appeal from Criminal District Court, Dallas County; C. A. Pippen, Judge.

D. E. Soderman was convicted of manslaughter, and he appeals.Affirmed.

McLean, Scott & McLean and J. W. Kearby, all of Fort Worth, and W. W. Nelms, of Dallas, for appellant.

R. G. Storey, Asst. Atty. Gen., for the State.

MORROW, P. J.

The offense is manslaughter; punishment fixed at confinement in the penitentiary for a period of five years.

That the appellant, using a pistol, shot and killed the deceased, Powers, was proved without controversy.Powers owned and operated the Waldorf Hotel, situated in the city of Dallas.Appellant came into the lobby of the hotel and killed the deceased.

The theory of insanity was presented as a defense; and in mitigation it is claimed that the homicide was due to passion engendered by information that Powers had seduced the wife of the appellant.

Appellant introduced his wife as a witness.On cross-examination state's counsel propounded this question: "Did you or not know, Mrs. Soderman, that while in Casper, on a drunken spree, he(Mr. Soderman) had a difficulty with his brother-in-law?"To which she replied: "He was not on a drunken spree when he had any difficulty."She also testified on cross-examination that she had complained to her husband about his failure to take her out to places; that her husband replied that Powers could take her, as he seemed to have time to go.The direct examination of Mrs. Soderman is recorded in about 20 pages of the record.It embraces her relations with her husband during the entire period of their married life, covering some nine years.She told of the business and social relations of herself, her husband, the deceased and his wife.

The statute(article 795, C. C. P.) forbidding the wife to become a witness against her husband does not inhibit her cross-examination when she is introduced as a witness in his behalf.Her opportunity for observation and other questions tending to show the accuracy of her direct testimony may be inquired into, and the usual test of cross-examination applied to matters germane and pertinent to her direct examination.Creamer v. State, 34 Tex. 173, and other cases listed in Branch'sAnn. Tex. P. C. § 152.The cross-examination may not be extended into new subjects.Bluman v. State, 33 Tex. Cr. R. 64, 21 S. W. 1027, 26 S. W. 75, and other cases cited in section 152, supra.See, also, Johnson v. State(No. 7756)255 S. W. 416, not yet [officially] reported.

In describing the relations with her husband after she became enamored with Powers, she, on cross-examination, said:

"I begun to complain that he did not pay me any attention, didn't take me any place, and he was drinking.He had never drank to excess before that time."

In view of her testimony in appellant's behalf, the inquiry made by the state did not transgress the rule stated.

The testimony which appellant elicited from his wife on direct examination led to the conclusion that prior to the time that she began her illicit relations with the deceased he(appellant) had been sober, industrious, and successful in business, and that afterwards their relations were strained; that they quarreled when together, and that she complained to him about his lack of attention to her and about his drinking.During the cross-examination this question was asked:

"Q.Didn't he(the defendant) tell you that Hilton and Powers had robbed him; isn't that true, Mrs. Soderman?A.He made remarks like that.

"Q.Didn't he tell you further that he did not propose to stand for it?A.No; he did not."

In qualifying the bill, the court said that there was no objection to the part of the question first quoted.It appears that there was a negative answer to the second, and that objection to it was promptly sustained.To the first question objection was necessary.Ward v. State, 70 Tex. Cr. R. 406, 159 S. W. 272;Willingham v. State, 94 Tex. Cr. R. 596, 252 S. W. 530;Gross v. State, 61 Tex. Cr. R. 182, 135 S. W. 373, 33 L. R. A. (N. S.) 477;Johnson v. State(No. 7556)259 S. W. ___, not yet [officially] reported.To the second the objection was sustained.It is not plain from our examination of the record that the inquiries were not within the scope of the original examination of the witness.She testified to conversations with the appellant touching Powers and concerning appellant's business affairs.Certainly, the bill of exceptions fails to show that the inquiry was foreign to the matter of the direct examination, and, in the absence of such an averment in the bill, the presumption is in favor of the correctness of the court's ruling on the matter before it.Golden v. State, 66 Tex. Cr. R. 262, 146 S. W. 946;Brown v. State, 65 Tex. Cr. R. 121, 144 S. W. 265.The grounds of objection stated in the bill are not equivalent to an averment of fact approved by the court.Conger v. State, 63 Tex. Cr. R. 312, 140 S. W. 1112, and authorities there collated.Mrs. Soderman was further asked on cross-examination if it was not true that she did not tell of the illicit relations with Powers until they had gone to El Paso, and appellant had been drinking, and that his conduct was such that she had gone to her mother in Chicago and come back and separated, and that he was living at one hotel and she at another.The court, in his qualification, states that there was no objection to the question, but merely to the method of examination.The matter is clearly pertinent to the direct examination wherein she testified to the divorce and several separations from appellant and to the time and manner of imputing to him information of her relations with Powers.

The witness Wood, a police officer, tesified that he arrested the appellant at a rooming house on April 7th; that appellant's wife was locked up in her room, and that appellant was raving; that he had seriously assaulted his wife, and injured her; that he stated to the officer that his wife had confessed to him her infidelity and criminal intercourse with a man named Powers, and that this was the cause of his having assaulted her; that he was put in jail by another officer.Wood gave the opinion that the appellant was insane.Complaint was made of the failure of the court to permit the witness to testify that he had filed a charge of lunacy against the appellant.Police Officer York was with Wood.He saw the appellant at the same time and heard some of his remarks.By him appellant offered to prove that he(appellant) had stated that his wife had been assaulted by him because she had confessed her infidelity.This declaration was proved by Wood without objection as a part of the predicate for the witness' opinion that appellant was insane.York did not give an opinion touching insanity, but the declaration which he would have imputed to appellant apparently was offered as proof that appellant's wife had confessed to him her illicit relations with the deceased.She testified to such fact on the trial; so did the appellant.Neither was impeached on the subject by proof of conflicting statements out of court, and, under the record as made, we are aware of no rule of evidence which would sustain the admission of the declaration in evidence.As proof of the confession of the wife, the declaration of appellant was obviously hearsay.It was cumulative of the proof of the same fact by Wood, and upon an issue which was not controverted by any direct proof.Moreover, for the purpose stated, it was relevant alone on the issue of manslaughter, upon which the jury found in favor of appellant.

Several bills of exception are in the form of questions and answers.No reason is given nor discovered for not putting them in narrative form.They are not adequate to call any matter in review, but if considered they reveal no error.One relates to the rejection of the opinion of a witness on the issue of insanity, who detailed no conversation, remark, act, or demeanor of the appellant qualifying him to give an opinion.Williams v. State, 37 Tex. Cr. R. 349, 39 S. W. 687;Plummer v. State, 86 Tex. Cr. R. 487, 218 S. W. 499.Another such bill refers to the testimony of Mrs. Hochter concerning the habits of the appellant with regard to the use of intoxicants, and bears on the issue presented by the direct testimony of appellant's wife.

Testimony on behalf of the appellant was introduced through his wife relating her version of a conversation and transaction occurring at the time when she was in a room of the hotel with the deceased.Her testimony put Mrs. Hochter present during a part of the transaction, and rendered competent the testimony of Mrs. Hochter to relate her recollection of the interview.Our statute seems conclusive on the subject.It says:

"When part of an act, declaration or conversation * * * is given in evidence by one party, the whole on the same subject may be inquired into by the other."C. C. P. art. 811;Vernon's Tex. Crim. Stat. vol. 2, p. 759, and authorities collated.

There were addressed to the court's charge on manslaughter some objections, but not pointing out any faults that we have perceived.The grade of the homicide was reduced to manslaughter by the verdict, and thus any defects in the charge which were not calculated to prejudice some other defensive issue would not be of consequence.Munos v. State, 58 Tex. Cr. R. 147, 124 S. W. 941;Neyland v. State, 79 Tex. Cr. R. 652, 187 S. W. 196;Cooper v. State, 93 Tex. Cr. R. 75, 247 S. W. 549.

This court is not able to concur in appellant's position that the information that deceased had had illicit relations with appellant's wife precluded any verdict higher than manslaughter.Such information coming to appellant was adequate cause for passion reducing the homicide to...