Stringfellow v. State

• Decision Date: 20 March 1901
• Parties: STRINGFELLOW v. STATE.
• Court: Texas Court of Criminal Appeals

61 S.W. 719

STRINGFELLOW v. STATE.

Court of Criminal Appeals of Texas.

March 20, 1901.

Appeal from district court, Caldwell county; H. Teichmueller, Judge.

Earl Stringfellow was convicted of murder in the second degree, and appeals. Reversed.

A. B. Storey and W. M. Walton, for appellant. D. E. Simmons, Acting Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was convicted of murder in the second degree, and his punishment assessed at eight years' confinement in the penitentiary.

The judgment should be reversed because the witness Pickel was not permitted to testify as shown by bill of exceptions. On a former trial Pickel took down the testimony as a sworn stenographer. On the trial which resulted in this conviction several of the witnesses materially changed their testimony. In order to contradict them, the predicate was laid as to their former testimony. Pickel was introduced for the purpose of impeachment. Being questioned with regard to the testimony of said witnesses, he was unable to reproduce their testimony from memory. He was permitted to refresh his memory from his stenographic notes, and stated that in taking down the testimony he did not charge his memory with it, his sole object and purpose being to get it correctly in his notes; that his mind was directed to that matter, and not to recollecting what the testimony was, and he could not, therefore, after reading the notes, be sufficiently definite in his recollection to reproduce said testimony. He testified, however, that he took the testimony correctly, and these notes showed exactly what the witnesses did testify, and to this he would swear. In other words, he was willing to swear, and would have sworn, if permitted, that the testimony taken by him was correctly taken, and exactly what the witnesses had stated. Under this predicate appellant proposed to introduce the stenographic notes in contradiction of said witnesses. This being refused, appellant excepted. While the question is not so presented, perhaps, as to require a reversal upon the proposition, for want of a sufficient bill, still the question is before us; and, as the case will be reversed upon other grounds, we deem it not improper to call the trial court's attention to the matter. As presented, this evidence should have been admitted. Kimbrough's Case, 28 Tex. App. 367, 13 S. W. 218; Jones, Ev., for collation of authorities.

Exception was reserved to the action of the court submitting the issue of mutual combat. We are of opinion this issue was not suggested by the testimony. A brief statement of the substance of the evidence bearing immediately upon this question will show that appellant and a friend in a restaurant were discussing a Mr. Riley, an uncle of appellant. Some remark had been made about Mr. Riley that was distasteful to deceased, whose presence was unknown to appellant at the time the remark was made. Deceased immediately became insulting in language and conduct to appellant, on account of said remark, and matters looked as if there would be a personal encounter. Friends interfered. Appellant resumed his seat at the lunch counter, and deceased was carried away by a friend. He was gone a short time, when he reappeared in front of the restaurant. Appellant was still seated at the lunch counter. Deceased remarked to appellant that he would not or could not come out there and repeat what he had previously stated. What the prior language was is left in considerable doubt and confusion, if in fact it was known to the witnesses. Appellant went to the sidewalk, and a quarrel ensued. Exactly what was said is left in serious confusion, though there was quite a crowd standing about. The state's theory was that, when deceased suggested to appellant to come upon the sidewalk, he (appellant) immediately drew a knife from his pocket, opened it as he approached deceased, and immediately began a furious assault upon him; that deceased was standing with his hands by his sides, having done nothing, nor offered any resistance. This is the substance of the state's case. Defendant's theory was that when he went upon the sidewalk words ensued, which he did not recollect; that deceased finally remarked that "Riley was a better man than appellant or his God-damn father," whereupon appellant replied that "he was a damn liar." Deceased then, with his left hand, struck or pushed appellant backward, so that he partially fell; and, as he straightened up, deceased struck him on the head one or more blows with a very heavy walking stick. The effect of one of the licks was to raise a knot on appellant's head, as the witnesses say, about the size of a hen's egg. The inference from the testimony, if not a direct statement, was that the deceased was so close to appellant that he could not strike him with the stick after pushing him back, and this was the reason for using his left hand in so doing; that, immediately after deceased struck appellant the second blow with the stick, appellant succeeded in opening his knife, and the death grapple ensued. The parties closed, and, as the witnesses term it, "were clinched and fighting"; appellant striking with the knife whenever and wherever the opportunity afforded. The physician testified that the wounds were not of such serious nature as necessarily would cause death,—in fact, that death was the result of the nervous shock, rather than the wounds. This evidence does not raise the issue of mutual combat. Rosborough v. State, 21 Tex. App. 672, 1 S. W. 459; Kelly v. State, 27 Tex. App. 562, 11 S. W. 627; Waldon v. State, 34 Tex. Cr. R. 92, 29 S. W. 273; Maines v. State, 35 Tex. Cr. R. 113, 31 S. W. 667; Red v. State, 39 Tex. Cr. R. 414, 46 S. W. 408; Schauer v. State (Tyler term, 1900) 60 S. W. 249. But suppose we are wrong in this position; then the exception of appellant was well taken, to the effect that, having charged upon mutual combat, the court should have gone further, and applied the rules of mutual combat to the facts in evidence. If this was a challenge and an acceptance to fight with fists or engage in an ordinary personal rencounter, without intending to kill, the offense could not be greater than manslaughter. If the combat was entered into for the purpose of killing, it might be murder, and the jury should have been informed in regard to this phaseof the law. The charge on mutual combat is a limitation upon the right of self-defense, and the charge as given left the jury to grope its way in darkness as to the attitude of appellant under this phase of the charge.

One of the grounds of the motion for new trial challenges the competency of Hanks, one of the jurors who tried the cause. It is made to appear, without contradiction, that Hanks and deceased married first cousins; that the wife of deceased died some years prior to the trial, leaving two sons as the issue of that marriage. These sons were private prosecutors in this case. Appellant was ignorant of these facts until after the conviction. The juror answered on his voir dire that he was not related to defendant or deceased by consanguinity or affinity within the prohibited degree. Except for the issue resultant of the marriage between deceased and his wife, the death of said wife would have terminated the relationship. Under the authorities, it seems that by reason of the issue the relationship is extended beyond the death of the spouse. Under the law, as it is understood in this state, Hanks and deceased, by reason of their wives being first cousins, were related by affinity. Page v. State, 22 Tex. App. 557, 3 S. W. 745; Powers v. State, 27 Tex. App. 700, 11 S. W. 646. See, also, Foot v. Morgan, 1 Hill, 654; Dearmond v. Dearmond, 10 Ind. 191; Kelly v. Neely, 12 Ark. 657, 56 Am. Dec. 289. The contention by the state that the relationship ceased on the death of the wife of the deceased would be well taken in the absence of issue of the marriage; but as applied to this case the insistment is incorrect, because of the birth and surviving of the children of the marriage. The proposition that the relationship exists by reason of the issue is supported by the weight of authority. Jaques v. Commonwealth, 10 Grat. 690; Bigelow v. Sprague, 140 Mass. 425, 5 N. E. 144; 1 Am. & Eng. Enc. Law (New Ed.) pp. 912, 913; 17 Am. & Eng. Enc. Law (New Ed.) p. 1125. Thus it will be seen that deceased, Monkhouse, was related to the juror Hanks within the prohibited degree. So the juror Hanks was also related to George and William Monkhouse, sons of deceased by the first wife. Not only so, but they were private prosecutors; and the grounds of challenge to the juror Hanks should have been sustained, and a new trial should have been granted on this account.

It is not necessary to discuss the application for continuance,...