Tippett v. State

• Decision Date: 17 February 1897
• Citation: 39 S.W. 120
• Parties: TIPPETT v. STATE.
• Court: Texas Court of Criminal Appeals

Page 120

39 S.W. 120

TIPPETT v. STATE.

Court of Criminal Appeals of Texas.

February 17, 1897.

Appeal from district court, McLennan county; Sam R. Scott, Judge.

Lewis Tippett was convicted of murder in the second degree, and appeals. Reversed.

Samuel H. Clayton, for appellant. Mann Trice, for the State.

HENDERSON, J.

Appellant was convicted of murder in the second degree, and given 10 years in the penitentiary, and prosecutes this appeal.

Appellant and deceased lived in the country, several miles from the city of Waco, on the same farm or inclosure, 200 or 300 yards apart. On the day of the homicide, both had been to Waco, and, on their return home in the evening, the testimony indicates that both were under the influence of liquor. They were seen by parties on the way from Waco to their homes quarreling, and, when they got near their respective homes, the testimony shows that both parties stopped at one Prince Tippett's house, and they had two fights there, in which the deceased evidently, on both occasions, got the better of the defendant. Prince Tippett's house is situated on one side of the railroad, and across, on the other side, are the houses of the defendant and deceased. After crossing the railroad going from Prince Tippett's, there was a gate opening into the farm or inclosure where defendant and deceased lived. Defendant lived some 30 or 40 yards from this gate, and deceased 200 or 300 yards beyond, in the same direction; that is, in going from said gate to the deceased's house, along a turnrow, one would have to pass near the house of the defendant. There was a little path from said turnrow leading to defendant's house. After the difficulties at Prince Tippett's between the parties, the defendant appears to have gone on home. A short time thereafter, deceased started to his home. His little boy, about 10 years of age, was with him; and deceased was leading his horse, having in his hands at the time some chickens and a can. The little boy was riding the horse. The deceased opened the gate and lead the horse in; and about this juncture the defendant, with a gun in his hand, came off of his gallery around the lot, which is at the side of the gallery, and which fronted the path deceased was traveling towards his home, and said to deceased: "Come on. I am ready." The deceased proceeded by the turnrow, and, when he got to where the path turned off from the turnrow towards the defendant's house, he proceeded up that path. According to some of the witnesses, he waved his left hand over his head, and had his right hand behind him. He got within a few feet of the defendant, when the defendant fired and killed him. According to the defendant's witnesses, when defendant came out with the gun deceased said to his boy and others who were standing around there: "Watch me, boy, what I am going to do. I am going to make him eat up that gun." And they further stated that when deceased turned off the turnrow, onto the path that led to where defendant was, defendant had his gun in his hand, with the muzzle pointing down, and, when deceased approached near defendant, he told him to stop or he would kill him, and, when deceased got nearly within reaching distance of the defendant, he raised his gun and fired, killing deceased. There is some testimony in the record showing, on the part of the state, some threats made against deceased that afternoon by the defendant, before he reached home. Ed Rowe says: "Defendant tried to borrow a gun or a pistol from him, and he said he wanted to kill the deceased; that he did not allow anybody to talk about his brother's daughter; and that he was going to wake up things that night, and, if he did not let him have his gun or pistol, that he had one at home that never failed." There is some testimony in the record, from the defendant's witnesses, showing that deceased had a pistol that evening, and one or two of the witnesses testified that he had a pistol at the time he was killed. No pistol, however, was found on the deceased's person, or near where he was killed, by those who reached the body shortly after the killing, and who testified in the case on this subject. The testimony does not show, in the difficulties which occurred at Prince Tippett's house, who was the aggressor, but it is shown that in both fights deceased got the better of the defendant. In both instances the testimony indicates that deceased got defendant down and was choking him, and was pulled off of defendant by other parties.

1. On the trial of the case, appellant reserved a bill of exceptions to the action of the court in excluding the testimony of Steve Ragland, explanatory of testimony drawn from said witness by the state, on cross-examination, to the effect that there were three indictments then pending against said witness for the theft of three head of cattle; the contention of the defendant being that Steve Ragland was an important witness on defendant's behalf, and that the purpose and object of the state were to impeach said witness' credit before the jury by proving that he was then under indictment for cattle theft, and, in order to meet this proof and dissipate the imputation thus made to rest upon said witness, he ought to have been permitted to prove by said witness that the three cattle he was charged with having stolen under three separate indictments were all bona fide purchases by him from one Jeff Green, and that he paid a valuable price therefor, and did not even know they were stolen property at the time he purchased them. The court excluded this testimony, and appellant claims that it was error. He furthermore appends to his motion for a new trial the certificate of the district clerk showing that said Ragland had, since the conviction of defendant, been tried on said charges of cattle theft, and acquitted in one case, and the other two cases dismissed; and he claims that a new trial should have been granted, so that he might have availed himself of this testimony.

The question of the admissibility of the character of testimony offered by the state to impeach the witness Ragland has been heretofore discussed by this court. In some of our states it is held that testimony showing that a witness is under a charge of a criminal offense is not admissible for the purpose of impeaching him, on the ground that until there is proof of conviction the witness is protected by the legal presumption of innocence. In Carroll v. State, 32 Tex. Cr. R. 431, 24 S. W. 100, this character of evidence was held admissible in this state; and see the question also discussed in Brittain v. State (Tex. Cr. App.) 37 S. W. 758. So we take it that it is now well settled that the state can introduce this character of testimony for the purpose of impeaching a witness. But the question is now presented, we believe, for the first time, in this court, whether or not, after the state has, in the first instance, on cross-examination, adduced this impeaching testimony, it is permissible for the defendant, on the re-examination of said witness, to show the groundlessness of the charge contained in the indictment. The reason of the ruling for authorizing this character of testimony to impeach a witness on behalf of the state is well expressed by Campbell, J., in Wilbur v. Flood, 16 Mich. 43, 8 Cr. Law Mag. p. 86. He says:...