Parker Harris and Furman Bowlin, for appellant. — The theory of the defense was two-fold: first, that the killing was done in self-defense, pure and simple; second, that appellant had never participated in any of the previous animosities and difficulties existing be tween George W. Hargrove, his father, and H.W. Spear, and was ignorant of the threats made by his said father against said Spear, and that although appellant may have known of the hostility entertained by his said Eather towards said Spear, and may have known that the combat between them was voluntary and mutual, yet if he did not join, by word, act, or intent, in the beginning of said conflict, and in fact disapproved of it, and when he saw his said father and brother shot down by said Spear and Smith, and saw Spear striking the prostrate form of his brother over the head with a pistol, if appellant, acting under the impulse of sudden and irresistible passion, then for the first time participated in the conflict and killed said Spear, he would not be guilty of more than manslaughter.
Upon these theories the case was tried, and, as we believe, influenced by errors committed by the court during the trial, and through statements made in the jury room by one of the jurors as to matters not in evidence, a compromise verdict was reached, and appellant was found guilty of murder in the second degree.
It was error for the court to admit in evidence and to compel defendant, upon his cross-examination as a witness, to testify to his having killed one Henry Tackett, for which killing he had been tried and convicted, but that the conviction had been set aside and he had been acquitted on a second trial. It was also error to compel him, as a witness, to testify as to whether or not he killed Bill Smith, who was killed in the same difficulty in which Spear was killed, and for whose killing defendant was then on trial; to which the defendant objected, that an indictment was then pending against defendant in this court for the murder of said Smith, and that he could not be compelled to criminate himself, and the defendant personally appealed to the court for protection, and claimed his privilege and refused to answer; but the court overruled these objections and compelled him to answer. Whereupon defendant admitted that he killed said Smith. The defendant
further objected to said question, upon the ground that it was immaterial, so far as the killing of Spear was concerned, and that it was only calculated to prejudice the defendant in his case.
We have carefully read the opinion by Judge Simkins in Carroll v. The State, 32 Texas Criminal Reports, 431. It is not decisive of either of the questions raised by our bill of exceptions. In that case the court held, that it was not error to allow the State on cross-examination to prove that one of the witnesses for the defense "was then under indictment for theft." In affirming the conviction, Judge Simkins limits such cross-examination "to transactions comparatively recent, bearing directly upon the present character of the witness, and essential to the true estimation of his testimony by the jury," and says: "It should be the care of the trial judge to confine the interrogatory to matters coming within said limitations, and promptly suppress all inquiry into matters not recent nor relevant to credit, otherwise the witness-box would become a source of scandal and an offense."
It was not shown that the trial and conviction of appellant for the murder of Tackett was recent. Its bearing upon the present character of the witness is not shown. Certainly it would not be permissible to assail the general reputation of a witness for truth and veracity in such an indefinite manner. Impeaching witnesses would be limited to the time of the trial. Evidence that at some indefinite period the character of a witness had been bad, in this respect, would be incompetent. The inquiry must be limited to the present status of the witness.
Even if it be permissible to prove that a witness has been tried and convicted, for the purpose of discrediting him, this can only be lawfully done by a production of the record itself, unless it be first shown that the record has been destroyed. The common law provides that the record is the best evidence of what it contains, and prohibits the introduction of secondary evidence. Our statute in express terms prohibits such a question for the purpose of disqualifying a juror. Willson's Crim. Stats., sec. 2284. To disqualify a convicted felon from testifying, the judgment of conviction must be shown. If this be done, and a pardon is relied upon to restore competency, the pardon must be produced. Willson's Crim. Stats., notes to sec. 2434. We are not aware of any reason why there should be a relaxation of the rules of evidence in such cases as this. This objection was not presented and passed upon in Carroll's case.
Even if it be permissible to prove that a witness has been tried and convicted of an offense, for the purpose of affecting his credibility, this character of evidence should be limited to cases where the convictions were sustained.
In cases where a conviction has been set aside by the courts and an acquittal subsequently rendered, the judgment of conviction stands as though it had never been rendered, and it can not be lawfully used for
any purpose whatever. To allow evidence that an indictment is pending against a witness, for the purpose of affecting his credibility, is occupying exceedingly dangerous ground. A witness is responsible for and should be affected by his voluntary conduct. Therefore the character of his associations may be rightfully inquired into for the purpose of affecting his credit, for they are of his own choosing. But that a witness' credit should be affected by the pendency of an accusation, when no proof has been adduced in support thereof, and no opportunity has been allowed him to make his defense, is to our minds manifest wrong and injustice. We will say frankly that we do not agree with the doctrine of Carroll v. The State, for the reason that it substitutes assumption for testimony, and gives preference to the presumption of guilt over that of innocence. It presumes guilt from accusation, in violation of the statute, which declares that every person accused of crime shall be presumed to be innocent until proven to be guilty. It makes the credibility of a witness depend not upon what he is or has done, but upon the malice of some enemy who may have lodged an unfounded accusation against him, or upon the mistake of a grand jury in presenting an indictment upon insufficient or malicious evidence. If this is to be the settled practice in our State, we believe that it will become a means of great imposition and rank injustice. We have not made these criticisms upon Carroll v. The State because that decision stands in our way at the present time. We think that the distinctions between the point there decided and those now presented are clear, and that Carroll's case is not an authority against us. But we regard Carroll's case as wrong in principle; we look upon it as a dangerous departure from the path of justice and safety, and we feel that it is the duty of the bar of the State to deal honestly with the courts, and never to hesitate, in a respectful manner, to sound a note of warning at the approach of danger. We may be mistaken, but these are our views, and we give them to the court for what they are worth, be it much, little, or nothing.
But concede that we are wrong, and that a mere accusation without proof should be admitted to affect the credibility of a witness, it does not follow that an accusation, which has been tried and by a solemn judgment of the court pronounced false, should be so used. In this case the appellant was forced to testify that he had been tried and convicted for the murder of one Henry Tackett, but that the conviction had been set aside, and upon a subsequent trial he had been honorably acquitted. Our statute declares, that in case of a new trial "the former conviction shall be regarded as no presumption of guilt, nor shall it be alluded to in the argument." Willson's Crim. Stats., sec. 2556. A new trial having been granted, the conviction is adjudged to have been unlawful. It requires no argument to sustain the proposition that an unlawful conviction can not be lawfully used to the prejudice
of the party against whom it was rendered. When a new trial is granted the judgment of conviction becomes a nullity; it stands as though it had never been rendered. The court can not give it vitality for any purpose. To do so is to impeach the judguient setting it aside, as well as the subsequent judgment of acquittal. Even though it may be true that appellant was guilty of murder in killing Tackett, this is not a crime like that of theft and those of similar kind, which show a depraved nature, and therefore are relevant to character. A man can not steal and be other than corrupt. A man may kill, and still be a gentleman in every sense of the word and worthy of the highest credit. Sudden passion, wounded honor, insult to female relatives, and many other causes consistent with credit, often leads men of the purest character to take life, especially in our southern country.
Even under Carroll's case, if our other objections are not good, this evidence should have been rejected, because it was not relevant to credit, and did not bear "directly on the present character of the witness."
The bill of exceptions to the admission of the evidence that appellant killed Bill Smith presents a different question. This was not admitted to affect credibility, but as a part of the res gestæ. The question is this: Where several indictments for separate offends grow out of practically one transaction, can a witness in one of these cases be compelled to criminate himself as to an offense charged in another one of these indictments, because the matter inquired of transpired at the time of the transaction on account of which the separate offenses are charged, upon the ground that it is a part of the res gestæ? We place our objection to the evidence solely upon the ground of privilege. The bill of exceptions shows that appellant personally appealed to the court for protection, and claimed his privilege upon the ground that another indictment was then pending against him in the same court for the murder of said Smith, the said Smith and Spear being killed in the same conflict.
Mr. Wharton says: "A witness will not be compelled to answer any question, the reply to which will supply evidence by which he could be convicted of a criminal offense." Whart. Crim. Ev., sec. 463. We could cite authorities indefinitely to the same effect. The appellant having voluntarily taken the witness stand, and the question as to his guilt for killing Spear being the point at issue, he could not refuse to answer any proper question upon the ground that it would criminate him for killing Spear. So far as the Spear case was concerned, he could not get the benefit of his own evidence upon facts favorable to himself and escape the burdens of what he knew detrimental to his interests. But when he is asked a question, the answer to which would involve him in another and separate criminal charge, quite a different question is presented.
Our contention is, that the evidence that appellant had been tried and convicted for killing Tackett, although subsequently acquitted, and that he killed Bill Smith, could not have any other effect than that of inflaming the minds of the jury against him. Even if this evidence was properly admitted, there was error in the action of the court in refusing to instruct the jury as to the purposes for which it was admitted, and in requiring them to confine their consideration of this evidence to these purposes. The court, in the explanation appended to this bill of exceptions, states that the reason why the instructions were refused was because the court stated the purpose for which the evidence was admitted at the time of its reception; and further, that the exception as to the refusal to give the instructions relative to the trial and conviction of appellant for the murder of Tackett was not made until after the jury had retired from the court room and had been considering their verdict for one night and a part of a day, and had come into the court room to ask an explanation of a portion of the instructions given, and were in the act of retiring again.
This explanation of the court involves two propositions, neither of which is the law. The first is, that where evidence of particular independent facts are admitted, and the purpose of their admission is explained at the time, it is not necessary for the court to repeat the explanation in the instructions. The second is, that it is too late to except to the refusal of the court to give special instructions after the jury have retired, or when they are retiring.
Both of these propositions have been denied by the decisions of this court. When there is evidence of another offense the court must instruct the jury with reference to the same, and the failure to do so is reversible error. Williamson v. The State, 30 Texas Crim. App., 332. The court may recall a jury at any time and give them additional instructions. Caston v. The State, 31 Tex.Crim. Rep.. An exception is in time where opportunity is given the judge to revise his charge and correct the error before the verdict is returned into court. Garrillo v. The State, 31 Tex.Crim. Rep..
Welhousen v. The State, 30 Texas Criminal Appeals, 626, was a conviction for theft. There was evidence tending to prove other thefts. In commenting upon this feature of the case, and after enumerating the circumstances under which such evidence might be admissible, Judge Hurt said: "If it is not so connected, or if connected it does not tend to serve one of the purposes mentioned, then it is not competent evidence, and it will be error to receive it, though restricted or withdrawn from the jury, for it is known to the profession and this court, from the results shown in hundreds of cases brought here, that if there be strong suspicion against the accused, though the evidence be not sufficient to authorize a conviction, and there is evidence of other offenses before the jury, convictions will follow, notwithstanding
such evidence, when admissible, is properly and carefully limited by the charge, or when inadmissible be entirely withdrawn from the jury."
With this testimony before us we feel that we can with confidence insist that, even if we are mistaken in our views as to the admissibility of the evidence complained of, we are still clearly entitled to a reversal of the judgment of conviction on account of the refusal of the trial judge to limit the jury, in the charge, to the purposes for which they could consider the evidence objected to.
With all of the earnestness of conviction we oppose the admissibility of such evidence. A final judgment of a court of competent jurisdiction, in a proper case against a witness, might with reason affect his credibility, for thereby the presumption of innocence would be destroyed, but for our lives we can not understand how a simple accusation, or how a judgment which has been set aside, and therefore held to be illegal, can raise any presumption against the credibility of a witness. With all respect for those who hold differently, to our minds such a ruling is repugnant to reason and common right; is subversive of elementary principles of law, and if established as a rule of practice will be a scandal and reproach upon our courts. It will result in injustice, and thereby bring the law itself into contempt.
We next invite the attention of the court to the error in the action of the trial court in refusing a new trial upon the ground that after the jury had retired to consider their verdict they received other evidence in addition to that testified to upon the witness stand.
Subdivision 7 of article 777 of our Code of Criminal Procedure says, that new trials shall be granted "when the jury, after having retired to deliberate upon a case, have received other testimony." The state's counter affidavit shows that after the jury retired to deliberate upon the case they did receive other testimony of a highly prejudicial character to appellant.
This question is not open for argument. It is settled by the statute. But the decision of this court in the case of McWilliams v. The State, 32 Texas Criminal Reports, 269, places the question beyond dispute. In that case one of the jurors, in discussing the case, detailed to his fellow jurors conversations about the case which were not sworn to by any witness. He also stated to one of the jurors, C.C. Gears, that he knew enough to satisfy him that the defendant ought to be hung. The jurors to whom Young made these statements all swore that they were not influenced by anything he said in passing upon the case. In reversing the case, Judge Hurt, in rendering the unanimous decision of the court, said: "If the jury, after having retired to deliberate upon the case, shall receive other testimony, a new trial shall be granted; and the additional testimony being against the accused, we will not stop to inquire as to its effect upon the jury or jurors."
Appellant requested the court to instruct the jury, "that if G.W. Hargrove, Sr., father of the defendant, threatened the life of H.W. Spear, the deceased, prior to the day of the killing of said deceased, and for and on account of such threats said deceased attacked said Hargrove in such a manner as was reasonably calculated to induce said Hargrove to believe his life was in danger, said Hargrove, because of such threats, would not be cut off from his right of self-defense, and if he did so believe, then he had a right to act upon the reasonable appearance of danger as though he made no such threats."
This instruction was refused, and appellant excepted. It was in evidence that the elder Hargrove had repeatedly threatened to kill Spear. Smith v. The State, 15 Texas Crim. App., 347; Parker v. The State, 18 Texas Crim. App., 90; White v. The State, 23 Texas Crim. App., 164.
The appellant requested the court to instruct the jury as follows:
"The defendant had the right to go to Arlington in company with his father and brother on the day of the killing of deceased (Spear), on business, although he and they may have known at the time of the threats of the deceased towards defendant's father, and of his previous attempts to kill his said father, and the mere fact of their going to Arlington on said day can not be considered as a circumstance to prove defendant's guilt, unless you further find from the evidence in this case, beyond a reasonable doubt, that such was his and their specific purpose and intent at the time."
This instruction was refused by the court. Appellant duly reserved an exception to the action of the court in refusing to give this instruction. Appellant testified, that he accompanied his father and brother to Arlington on business on the day of the difficulty, and states fully what his business was, and the innocent intention of appellant in going. There is other evidence in the record strongly corroborative of appellant's statement. But be this as it may, it was the right of appellant to have the jury instructed upon every phase of the case favorable to him. This right is based upon two of our statutes. One declares that the court shall deliver to the jury a written charge, in which he shall distinctly set forth the law applicable to the case. Code Crim. Proc., art. 677. Where there is a failure to charge upon a theory favorable to the defense arising from the evidence, it can not be said that the court has distinctly set forth the law applicable to the case. It must be all of the law applicable to the case, whether it be favorable to State or defense. It matters not how incredible this evidence may be. That is not a question for the court. It is the sole and exclusive province of the jury to pass upon the question of the weight and credibility of the evidence. A defendant has a right to have instructions based upon defensive evidence, no matter what the evidence for the State may be. The court should instruct the jury upon the
hypothesis that the defendant's evidence may be true. Nally v. The State, 30 Texas Crim. App., 459; Carter v. The State, 30 Texas Crim. App., 556; Willson's Crim. Stats., sec. 2338.
But there is yet another view of this question. The Code of Criminal Procedure, art. 727, declares: "The defendant in a criminal case is presumed to be innocent until his guilt is established by legal evidence; and in case of reasonable doubt as to his guilt he is entitled to be acquitted." When the court instructs upon theories of guilt, and refuses to instruct upon theories of innocence arising from the evidence, the court in effect repeals this statute, and gives preference to the presumption of guilt rather than that of innocence.
The charge of the court is cumulative, and gives undue prominence to the idea that the killing of Spear was in mutual combat, or was the result of a previous agreement of this defendant and his father and brother, such instructions not being warranted by the facts or the law. Even if there had been evidence raising any one of these theories, still it would have been error for the court to have repeated and emphasized the instructions, as was done.
In Irvine v. The State, 20 Texas Criminal Appeals, 41, Presiding Judge White said: "In Taylor v. Townsend, 61 Tex. 144
[ 61 Tex. 144 ], the court, says: 'It is undoubtedly improper for a court to place, by frequent repetitions, too prominently before a jury any principle of law involved in the case.' [Citing Powell v. Messer, 18 Tex. 401 .] And especially is such rule important in a criminal case in order to guard against creating an impression upon the minds of the jury as to what may be the opinion of the court with regard to the facts to which the principle is applicable."
In Bonner v. The State, 29 Texas Criminal Appeals, 232, Presiding Judge White says: "In the second paragraph of the instructions the learned judge reiterates the law as to defendant provoking the difficulty, and tells the jury that if he did so he can not justify upon the ground of threats. This instruction was not responsive to the question of the jury, was unnecessary, and was objectionable, in that it was calculated to place too prominently before the jury this feature of the case." He then cites with approval Irvine's case.
In Hays v. Hays, 66 Tex. 609 , Chief Justice Willie says: "But be this as it may, this court has said that a judge ought not to repeat a principle already given in charge of the jury, when this would give it undue prominence. Powell v. Messer, 18 Tex. 401 ; Taylor v. Townsend, 61 Tex. 144 ."
The instructions of which we complain were not only repeated time and again in the instructions for the State, but were hung, as aforesaid, like a millstone around the neck of the instructions for the defendant. The trial judge could not have given greater prominence to his views of the case.
The court erred in refusing to instruct the jury upon the law of manslaughter.
Appellant's evidence shows that he tried to keep his father from going to Arlington, on account of the animosity existing between his said father and Spear. When assured that his father was compelled to go on business, he then agreed to accompany him, provided his father would not drink any during the trip, and would go down upon the 4 o'clock train and return that same evening. Knowing that his father was in danger of being attacked by Spear, he had a right to carry arms for protection. Otherwise, no man who is in danger of a serious conflict would ever dare to arm himself for his defense.
Now, grant that his father upon reaching Arlington did provoke the difficulty, although there is no evidence to that effect. 'Yet say that the State is correct, and that this was a mutual combat. How does the case stand? Here is a son who has advised against trouble, who has tried to keep his father out of a difficulty, who is not present for attack, who has no such purpose; a difficulty arises, the father is partly to blame for it, the son has no part in starting the fight. He does not participate in his father's purpose. At the time of the beginning of the fight he sincerely wants peace, but upon seeing his father and brother shot at, he is overcome by sudden and irresistible passion, and kills one or both of their assailants. Of what offense is he guilty? We answer, not more than manslaughter. The law makes allowances for the frailties and imperfections of human nature. It also recognizes the fact that blood is thicker than water. It recognizes the fact that it is not within the power of human endurance for a father to stand by and see his son assassinated, or for a son to be idle when his father is being butchered, even though the father or son may have been somewhat at fault. If a killing occurs under such circumstances, and results from the passion which it would necessarily engender, and if not the result of a preconceived purpose, then it would not be more than manslaughter.
In Guffie v. The State, 8 Texas Criminal Appeals, 203, Judge Clark said: "A master, maliciously intending to kill another, takes his servants with him, and engages his adversary on meeting him. His servants, seeing their master engaged, rush to the rescue and kill his antagonist. In common law this may be murder in the master, but only manslaughter in the servants. The same principle applies to various other relations, including sometimes strangers; but, in law, hot blood is more naturally expected in a case of interference by a near relative or friend than in others more distantly removed. If, therefore, the defendant in this case, not intending to unite with his brother in making an unlawful attack upon the deceased, and not knowing the unlawful purpose of his brother, but awaiting an anticipated necessity for his interference in order to protect his brother from serious bodily
harm or death, threw up his gun and fired simultaneously with the discharge of the pistol by deceased at his brother, or, seeing the intention of deceased to fire upon his brother, and endeavoring to anticipate him, but failing, the deceased being too quick for him, and discharging his pistol first, the defendant is not guilty of any higher grade of felonious homicide than manslaughter, notwithstanding the defendant brother may have brought on the conflict with malicious intent. Or if the defendant, with no purpose of injuring the deceased, but desiring and attempting to stop the progress of the difficulty between his brother and the deceased, and with no purpose or intention to aid his brother in an unlawful and violent attack upon the deceased, saw his brother shot down in his presence, and in a fit of sudden passion, engendered by this adequate cause, he voluntarily slew the deceased upon the instant, then he is guilty of manslaughter, and should not be punished for any higher offense."
In the case at bar the jury should have been informed, that if appellant, with no purpose of injuring Spear, but desiring to prevent a difficulty between his father and Spear, and with no purpose or intention to aid his father in an unlawful and violent attack upon Spear, accompanied his father to Arlington, and there saw his father or his brother shot down in his presence, and in a fit of sudden passion, engendered by this adequate cause, he voluntarily entered the combat and slew Spear, he could not be convicted of a higher grade of offense than manslaughter.
Appellant denies that he went to Arlington with any intention to aid in an attack upon Spear. He says that he first exacted a promise from his father not to drink on the trip, and that at his suggestion a time was selected when they could arrive on the 4 o'clock train and leave on the 7 o'clock train. All of this was for the purpose of avoiding a difficulty with Spear. This evidence clearly raises the issue as to his pacific intentions in going to Arlington. The court ignores this, and suggests to the jury that he went there in pursuance of an agreement to kill Spear the next time that they should meet him; and even goes so far as to suggest that this agreement was made while appellant and his father and brother were on the way to Arlington. If appellant went to Arlington for the purpose which he testifies to, and without an intent to aid in an unlawful attack upon Spear, and after getting there his father began a difficulty with Spear, of which appellant did not approve and in which he did not join, and after said difficulty was begun, without fault upon the part of defendant, appellant, seeing his father or his brother shot down and beat over the head by Spear, in a fit of sudden passion, engendered by either of these adequate causes, entered into the difficulty and slew Spear, his offense would be manslaughter, and not murder. If his participation in an unlawful attack upon Spear was not premeditated, but "was under
the immediate influence of sudden passion there engendered by an adequate cause," then under the language of the statute he could not be guilty of murder. Penal Code, art. 593. The entire question depended upon the intention with which he entered the conflict, and frame of mind with which that intention was formed. His testimony is supported by the legal presumption that the last provocation was the cause of his act. According to his evidence, he had not participated in the previous animosities existing between his father and Spear, and the sole as well as the immediate cause of his conduct was that which occurred at the time.
Having given in this evidence, it matters not how incredible it may have appeared to the trial judge, or how many times it may have been contradicted, as it raised a presumption favorable to appellant the trial judge should have given an instruction upon the hypothesis that it was true. Crawford v. The People, 12 Colo. 293 .
We regret, to note that there appears to be a growing disposition upon the part of the courts to invade the province of the jury, and that too in the face of the statute which makes the jury the sole and exclusive judges of the credibility of the witness, the facts proven, and the weight of the evidence. The idea seems to be, that if the State makes out a prima facie case it is to be at once presumed that the defendant is guilty, and, being guilty, he is not entitled to the protection of the rules and principles of law usually governing such cases. The fact as to whether or not his trial is conducted strictly according to law, or contrary to law, is lost sight of or becomes immaterial, because he is guilty; and, being guilty, he has no right to complain that the law which governs in cases of this sort was not applied in his favor.
We respectfully submit that safety is only to be found in the impartial administration of the law. The disregard of a single legal right upon the ground of the supposed guilt of a defendant sets a precedent pregnant with danger to the administration of justice. If it can be done in one instance it will be repeated in another. As precedents increase the evil will grow, until finally the courts of our country will become engines of wrong and oppression.
No brief for the State found in the record.