Willis v. State

• Decision Date: 20 December 1905
• Citation: 90 S.W. 1100
• Parties: WILLIS v. STATE.
• Court: Texas Court of Criminal Appeals

90 S.W. 1100

WILLIS v. STATE.

Court of Criminal Appeals of Texas.

December 20, 1905.

Appeal from District Court, Ellis County; J. E. Dillard, Judge.

Henry Willis was convicted of manslaughter, and he appeals. Affirmed.

Templeton & Harding, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of manslaughter, and his punishment assessed at confinement in the penitentiary for a term of four years; hence this appeal. This is the second appeal. See 75 S. W. 790. The prosecution there, as here, was for killing Claude Shaw; and the facts proven on this trial are substantially the same proven on the former trial, to which reference is here made.

When A. Patterson (witness for defendant) was on the stand, he was examined as to H. M. Shaw and his three sons coming to his shop in the town of Ennis in 1902. He stated they stopped in front of his place of business and hitched their vehicle. H. M. Shaw came into witness' shop with a shotgun, and left it there. Something was said about having a case in court; and he stated that the parties then left, and he does not remember seeing any one of them any more that day, until late in the afternoon, when they returned, got the gun, placed it in the surrey, and left. Witness was then asked if he did not see some of the Shaws hanging around his shop more or less all day. He stated that he did not remember whether he did or not. He was then asked if he had not testified at the February term of the court, 1903, when this case was formerly on trial. Witness answered that he did. He was then again asked whether or not one of the Shaws lingered about his shop during the day. Witness again stated that he did not remember one way or the other. Appellant's counsel then proposed to refresh witness' recollection by reading from his statement at the former trial. The court ordered the jury to be retired, and defendant claimed the right to propound the question in the presence and hearing of the jury. After the retirement, the court permitted defendant to read to the witness what purported to be his testimony at the former trial on the question. It is shown that to one question witness answered that after leaving the gun there they all went off, but there would be one around there all the time; every now and then he would see one of them around there. After reading this in the presence of the court, appellant then asked witness if it refreshed his recollection on the point inquired about. Witness answered that it did not; that he still had no recollection upon the question one way or the other. Defendant then claimed the right to bring the jury back, and refresh his recollection before the jury by reading his testimony and asking him the question. This the court would not permit him to do; but he might question the witness in the presence of the jury what his present recollection was, if any, as to the point inquired about, and if his memory had been refreshed upon the question, and the jury could hear his said answer. Appellant desired further to ask the question whether or not he had testified on the former trial that one of the Shaws had remained around near the witness' place of business during the day. The court would not permit this. Appellant says he had a right to pursue this method, for the purpose of refreshing the recollection of the witness, and for the purpose of laying a predicate to contradict him, if he denied making the statement. In this action of the court there was no error. Appellant had full opportunity to refresh the recollection of his witness, and he was not authorized in this manner to lay a predicate, and then contradict his own witness. Where witness gave no testimony calculated to injure him, but simply failed to recollect a fact, he was not authorized to contradict him.

During the trial, appellant placed Mrs. Nin Willis on the stand, and proposed and could have proven by her that Lelia Shaw (deceased wife of Jim Shaw and sister of appellant) a short time before she separated from her husband, came to the house of witness (who was her sister-in-law and lived near by) crying, and stated that her husband (Jim Shaw) had choked her and had threatened her life, and that she was afraid of him, and further stated that Jim Shaw had mistreated her, and treated her so cruelly that she did not believe she could live with him any longer. On objection of the state, this testimony was excluded. Appellant insisted that it was admissible, inasmuch as appellant's theory involving mistreatment of Lelia Shaw by Jim Shaw had been attacked by the state, and that this testimony was competent to support the theory of the defendant. The court, in explaining this bill, says that the instance proposed to be proved by the witness was not referred to nor recorded in the written statement of Lelia Shaw; nor was it claimed or shown that defendant ever knew of said conversation. We think this sufficiently disposes of the matter without further discussion. What is said here is also applicable to the excluded testimony of Mrs. Joe Cave.

Appellant introduced J. C. Willis (father of defendant), and proved by him that he knew nothing of an attempted reconciliation between Jim Shaw and his wife, and the exchange of letters between them, as shown by the records. The state then asked said witness, on cross-examination, if it was not a fact that, at some time between the separation of Lelia Shaw from her husband and her death, one W. W. Montgomery handed to witness a letter written by Jim Shaw and addressed to his wife, Lelia. This was objected to on the ground of immateriality, and that it related to matters of which defendant had no knowledge, and, if it was offered as a predicate to contradict, was immaterial. Witness answered that said Montgomery did not give him any such letter. Montgomery was then placed on the stand, and over objections of appellant the state proved by him that, some time between the separation of Jim Shaw and Lelia Shaw and her death, witness handed to J. C. Willis (the father of Lelia) a letter written by Jim Shaw, addressed to Lelia. This was objected to on the ground that it proposed to impeach J. C. Willis upon an immaterial point. Appellant seems to have deemed it material in the examination in chief of the witness Willis to show that no attempted reconciliation occurred between Jim Shaw and his wife and no exchange of letters between them occurred. We can see its materiality in one point of view; that is, it was competent for the defendant to prove that Jim Shaw, if he did mistreat his wife while they were living together, never attempted to atone for it prior to her death, and that she died without any attempt on his part at reconciliation, and that he never wrote any letter to her. Defendant reinforces this idea by showing that no letters passed between them. We believe it was competent to contradict the witness on this point.

The state introduced Rance Pittman as a witness, and proved by him that, a short time after the death of Lelia Willis, he met Jack Willis on the streets of Ennis, and that Jack told him that Henry Willis desired him to come up to J. C. Willis' house the next day. This was objected to on the ground that it was prejudicial to defendant, because it was the theory of the state that defendant had been informed of the contents of the written statement of his sister shortly after her death, and that this was shown by the fact that this witness then read the statement, so that the hearsay testimony was especially prejudicial to defendant. Now all we understand by this bill is that the invitation of Henry Willis to the witness Pittman to come to his father's house the next day was objected to. No reason whatever is assigned for the invitation. It may be that something occurred the next day at the house of J. C. Willis that was objectionable, but we do not understand the bill to raise this. What occurred at the house the next day is not objected to.

H. M. Shaw was introduced by the state, and testified that he went with his wagon, shortly after the shooting, for Jim and Claude Shaw, as soon as he learned they were shot, and when he got there he was told by Claude Shaw, in his dying declaration, how the shooting occurred, and after detailing what Claude Shaw said as to how the shooting began and ended, and what was done by defendant and Jim and Claude Shaw, the state asked the witness if Claude Shaw said anything else, and, if so, what was it? Defendant objected to this on the ground that it was irrelevant, hearsay, and prejudicial. The court overruled the same, and the witness answered that Claude Shaw begged him (witness) to knock him in the head. So far as we are advised, this may have been res gestæ. However, we believe it was admissible as a part of the dying declaration. It was necessary for the state to show, at the time the statement was made by Claude Shaw, that he was then conscious of approaching death and had no hope of recovery. The bill does not negative this idea, and we can well see how such testimony would be competent as tending to show that the deceased, Claude, then had no hope of recovery.

It was competent for the state to show that appellant's witness, John Autry, had been charged with the offense of forgery, as going to discredit him.

We believe it was also proper, under the circumstances, to show that Farrar was county attorney on the occasion of the former trial, and represented the state, and show how he came to be employed, as he was familiar with the case. Under the circumstances shown by the bill and explanation of the court, we also think the court did not act improperly in stating that it was competent for the state to employ private counsel, who was entitled to all respect and regard in the conduct of the case, as the county attorney. This was justified, as explained by the court, by repeated remarks of appellant's counsel to the effect that Mr. Farrar was...