Will G. Barber and B.G. Neighbors, for appellant. — As a general rule it is never permissible to prove a defendant guilty as charged, by showing that he was guilty of a like offense upon another occasion. Freedman v. State, 38 S.W. Rep., 993; Bain v. State, 44 S.W. Rep., 518; Long v. State, 47 S.W. Rep., 363; Barkman v. State, 52 S.W. Rep., 69; People v. Stewart (Cal.), 24 Pac. Rep., 722; Shaffner v. Commonwealth, 72 Pa. St., 60, 13 Am. Rep., 649.
A prior assault should never be admitted to prove motive or malice unless there is some logical connection between it and the particular act under investigation; and where it is remote in point of time, or the evidence affirmatively shows that before the assault in question the ill will or malice prompting the former assault had ceased to exist, then the assault itself should be excluded. Herman v. State, 75 Miss. 340 ; Barkman v. State (Texas), 52 S.W. Rep., 69; Dillin v. People, 8 Mich. 366 ; Shaffner v. Commonwealth, 72 Pa. St., 60, 13 Am. Rep., 649; Farris v. People (Ill.), 4 L.R.A., 582; State v. Jeffries (N.C.), 23 S.E. Rep., 163; Parkison v. People (Ill.), 10 L.R.A., 91; Pounds v. State, 43 Ga. 88 .
Evidence of an assault by defendant upon the mother of his wife, a year before the assault upon the wife, is not admissible upon the trial of defendant for the latter.
Even where it is admissible to prove extraneous and collateral crimes, the State should not be permitted to go into the detail thereof and show extremely cruel and outrageous conduct on part of defendant, thereby prejudicing the jury against defendant and his case. Green v. Commonwealth (Ky.), 33 S.W. Rep., 100.
Defendant's bills numbers 1, 2, and 3 show that the State proved the aggravated nature of previous assaults by defendant on his wife and her mother, the latter even being permitted to state that as a result of defendant's beating her she had become paralyzed and helpless. Ware v. State, 38 S.W. Rep., 198; Lawrence v. State, 84 Ala. 424 ; Stitt v. State, 91 Ala. 10 ; Hale v. State, 72 Miss. 140 ; Martin v. Commonwealth (Ky.), 19 S.W. Rep., 580; Commander v. State, 60 Ala. 1 ; Pinckard v. State, 13 Texas Crim. App., 468; Webb v. State, 35 S.W. Rep., 380.
The evidence being admitted only to prove malice, should have been limited to this purpose by the court's charge.
Where proof of extraneous crimes is admitted, it must always be limited, unless it is clear that the jury could not have used it for any improper purpose.
Former assaults by defendant upon his wife and her mother were not properly entitled to be used by the jury to increase the punishment to be assessed for the assault on trial, and the jury should have been so charged, especially when requested by defendant.
The malice which may have prompted the former assaults upon Sallie and her mother could not be transposed to or be used to supply or supplement the malice necessary to make assault to murder out of the assault charged.
Under these four propositions the following authorities are submitted:
(1) Evidence of this character having been admitted was limited in the following cases: Oneil v. State, 51 Kan. 651 ; Boyle v. State, 61 Wis. 440 ; Commonwealth v. Watkins, 9 Conn. 52 ; State v. Greene, 35 Conn.; Moore v. State, 28 Texas Crim. App., 377; Martin v. State, Id., 364; Johnson v. State, 29 Texas Crim. App., 152; Blackwell v. State, Id., 200; West v. State, 33 S.W. Rep., 227; Morrison v. State, 51 S.W. Rep., 36; Martin v. State, 53 S.W. Rep., 849; Green v. Commonwealth (Ky.), 33 S.W. Rep., 100; Commonwealth v. Bell, 31 Atl. Rep., 123; State v. Robinson, 48 Pac. Rep., 357; State v. Stice, 55 N.W. Rep., 17; State v. Lewis, 65 N.W. Rep., 245; State v. Hayes, 46 Pac. Rep., 752.
It is apparent from these and many other cases which might be cited that the courts have generally recognized not only the fairness but the necessity of limiting this character of evidence. The first four cases are wife murder and apply the proposition to practically identical facts with those in hand. They are not cases where the danger to be
guarded against was a conviction for some other offense instead of the one charged.
(2) In the following, among other cases, it has been held reversible error to fail to limit the purpose of extraneous crimes and charges thereof: Taylor v. State, 22 Texas Crim. App., 529; Davidson v. State, Id., 372; Washington v. State, 23 Texas Crim. App., 336; Maines v. State, Id., 568; Davis v. State, Id., 210; Barton v. State, 28 Texas Crim. App., 483; Pinckard v. State, 13 Texas Crim. App., 468; Martin v. State, 35 S.W. Rep., 976; Higginbotham v. State, 24 Texas Crim. App., 505; Martin v. Commonwealth, 19 S.W. Rep., 580; Baker v. Commonwealth, 50 S.W. Rep., 54; People v. Schilling (Mich.), 68 N.W. Rep., 232; Commonwealth v. Shepard, 1 Allen, 575; State v. Lewis, 24 Pac. Rep., 914. See also Reno v. State, 25 Texas Crim. App., 103, and that line of cases.
The Hall case, 21 Southwestern Reporter, 368, is relied upon by the State's attorney as conclusive of the question presented. In that case, the particular reasons that we urge why the failure to limit the evidence as prejudicial were not presented nor was exception taken to the charge at time given; and the opinion clearly recognizes that the broad proposition contended for by the State here will not do. Referring to the rule, the opinion says one of the reasons therefor "is to guard him from prejudice that might occur on account of such crimes being admitted as evidence." It also seems to consider that the evidence there admitted was not of an independent offense (which will certainly not be contended here especially as to the assault on the mother). No authorities are cited on this branch of the opinion. On the admissibility of the evidence he cites two cases from 3 Parker Criminal Reports, 33; Grattan, 766; 88 Pennsylvania State, 291; Wharton's Criminal Evidence, section 51, and cases cited in note 3, and section 786, and cases cited in notes 3, 4, 5, and 6. Neither the Virginia, the Pennsylvania, nor the Criminal Report cases touch on the question as to limiting the evidence. Of the cases cited by Judge Davidson, as collated in the notes of Wharton referred to, only the following are in point, even as supporting the admissibility of the testimony: State v. Langford (N.C.), Busbee, 436; Commonwealth v. Watkins, 9 Conn. 52 ; State v. Greene, 35 Conn.; Johnson v. State, 17 Ala.; People v. Kern, 61 Cal. 244 . Several of the other cases cited do not seem to bear even remotely on the point. One case cited, Cole v. Commonwealth, as being in 2 Grattan, I fail to find there. Of the five cases fairly in point, only two (the Connecticut cases) touch on the question of whether this character of evidence should be limited, and they each clearly recognize and announce the necessity of limiting such evidence.
We call the court's attention to at least two unauthorized purposes for which it was very probably used, that is: First, to increase the punishment assessed; second, another purpose which this evidence was probably improperly used for was to supply the malice necessary to conviction. Here again let it be understood we are not now combatting
the admissibility of this evidence as tending to show the existence, at the time the pistol fired, of the malice necessary to make the assault an assault to murder. But suppose the jury, after considering this and all the other evidence, were not satisfied of the existence of malice aforethought at time the pistol fired, but were satisfied from the cruelty and aggravation characterizing the other assaults, that they were prompted by malice; was there not great danger that they would treat this as sufficient? The defendant undertook to guard against this, but the trial court seemed to take a different view of the law, and the very fact that this charge, when requested in open court, was refused, would probably lead the jury to accept as true the converse of the proposition.
It may be said that as the charge required the jury before convicting to find that the assault was committed unlawfully, with the specific intent to kill, and also to find the nonexistence of defendant's contention that the gun fired accidentally, the only excuse or justification offered, that from the finding of these facts the law would imply malice, and therefore no injury could have occurred to defendant. To this we reply that the malice must be found by the jury alone, and they must find this malice — this condition of mind — to exist at the very time the assault was committed. Malice aforethought must concur with every one of the other ingredients which the charge required to be found. Hayes v. State, 14 Texas Crim. App., 400; Ponton v. State, 34 S.W. Rep., 950. Under such a view there would be no necessity of submitting to the jury the question of malice at all, — it being sufficient to only require them to find the facts from which an implication of malice would be authorized. This, of course, would be error. Williams v. State, 3 Texas Crim. App., 316. While the charge properly defined malice and required the jury to find it, we contend it should have told them that the malice prompting former assaults would not meet the requirement, especially when this was requested.
Rob't A. John, Assistant Attorney-General, for the State. — Appellant's bills numbers 1, 2, and 3 involve the same point. The State upon the issue of malice proved by the witnesses Sallie Hamilton and Jennie Hamberger a course of ill treatment, quarrels, altercations, fights, and assaults existing between appellant and his divorced wife anterior to the homicide. Appellant insists that the evidence is not admissible for the several reasons assigned in the different bills. On that issue the State cites the case of Hall v. State, 31 Texas Criminal Reports, 565, as directly in point; and submits as a proposition, that on the trial of a husband for an assault upon his wife, the State has a right to prove a course of ill treatment by the husband of the wife on the issue of malice. Hall v. State, 31 Tex. Crim. 566 ; Whart. Crim. Ev., 9 ed., sec. 51, note 3.
The contention that the assault made by appellant upon Jennie Hamburger (the mother of the injured party) is not admissible,
because immaterial and irrelevant, is not tenable, as from an inspection of the facts authenticated by the bills, it will be seen that in each instance the assault made upon the mother-in-law was when she was interceding to prevent appellant from abusing his wife, and was a part of the res gestae of the abuse, which is not a collateral inquiry, but is direct in its nature, and therefore is part of the res gestae of the assault; or in other words, res gestae of the malice involved, and is admissible. In every instance the assault made upon the mother succeeded and was a part of the assault upon the injured party, his divorced wife.
The fourth bill complains of the action of the court in failing to limit the previous assaults made upon the injured party, his divorced wife, to the issue of malice, and specifically instruct the jury that they could not consider said previous assaults, altercations, and quarrels for any purpose. The court said in the Hall case, supra, Judge Davidson rendering the opinion, that the trial court in that case did not err in omitting to restrict evidence of previous assaults, altercations, and quarrels to the issue of motive or malice. The following language is quoted: "The authorities cited by appellant sustain the proposition that when independent, contemporaneous crimes, or crimes showing system, are adduced and relied on to connect the accused with the offense on trial, or to develop the res gestae, or to show intent, they should be restricted to their proper office by appropriate instruction. The rule grows of the necessity of protecting the accused against conviction of an offense not charged in the indictment, and to guard him from prejudice that might occur on account of such crimes being admitted as evidence. But the evidence under discussion is a part and parcel of this case, belongs to and grows out of it, is not an independent offense, and does not come within the rule invoked by appellant. Judge Wilson, in the Leeper and Powell case, states the rule in reference to limiting extraneous matter to be based upon the proposition asserted in the Hall case, and says that "when the apparent extraneous matter bears directly upon the issue, that it should not be restricted for any specific purpose, and illustrates it in that case by showing that, the appellant being charged with murder, and the antecedent crimes introduced to show motive being an assault to murder, it could not have possibly misled the jury, and to have caused them to consider it for any other purpose than for which it was introduced. By an inspection of the charge of the court in this case it will be seen that appellant's guilt is limited to that assault alleged in the indictment, i.e., the assault made with the pistol. No extraneous assaults on the issue of motive was committed with the pistol. Therefore the jury could not have been confused and misled. Their limitation to find defendant guilty of the assault committed with the pistol sufficiently restricts the evidence introduced, in so far as the jury weighed antecedent assaults as an aggravation of the one for which defendant was tried. This was not only legitimate and proper, but was the very purpose for which the same was introduced; that is,
to show malice, and the showing of malice was to be used by the State to aggravate the assault and to make it one with intent to murder.
As to bill number 5, appellant complains that the court failed to apply the reasonable doubt directly and the degrees of the offense involved, to wit, an aggravated assault and an assault to murder. An inspection of the charge does not bear out appellant in this contention. Section 7 of the charge applies the law of assault with intent to murder properly, and instructs the jury, if they believe that the elements of assault with intent to murder are shown, to find defendant guilty of that offense. Section 8 reads as follows: "If you believe from the evidence that Jesse Hamilton did assault Sallie Hamilton, but with no intention of killing her, or if you have a reasonable doubt of his assaulting her with such intention to kill her, you will find defendant guilty of an aggravated assault, and assess his punishment accordingly." This gives appellant the benefit of the reasonable doubt, should any exist, between the two grades of assault involved.
The sixth bill complains of the action of the court in not charging that, at the time the gun was fired by appellant, he had in his mind the deliberately formed intent to kill Sallie Hamilton. This is not the law. "Sedate and deliberate mind and formed design" is an element of murder in the first degree, but the jury could have found that the sudden attempt to kill, unexplained and not based upon adequate cause, would constitute an assault with intent to murder, it being the incompleted act of murder in the second degree.
As to the evidence not being sufficient, the State insists that the verdict of the jury is amply sustained by the evidence. Appellant said to his wife, after having had previous trouble, altercations, etc., "Yes, I will fix you," and fired the pistol at her, powder-burning the side of her face; and subsequent to this attempt to kill her, flees the country and becomes a fugitive from justice. The expression "Yes, God damn you, I will fix you," shows both deliberation and the specific intent to kill. The fact that the injured party dodged when appellant was in the act of firing, and the ball missed her, although it went close enough to powder-burn the face, does not destroy the contention of the State that the intention was specific to take the life. His defense was strenuously urged, and adroitly presented, but the jury evidently did not believe the same. This was their province.