Wharton v. State

The rule is both sound and reasonable that complaints in bills of exception in murder cases of the reception of testimony as to the bad condition of the body and organs generally of the deceased at any time between the shooting and his death, must bring forward something more informative than that such testimony was admitted over objection that same was immaterial, irrelevant and prejudicial. The trial court did not agree to the soundness of such complaint when he overruled same. In Thompson v. State, 90 Tex.Crim. Rep.,234 S.W. 401, 405, we said: "A bill of exception so framed as to compel this court to search the statement of facts in order to find out what is therein referred to and meant, is ordinarily held by us insufficient and defective."

This court always presumes correctness in the rulings of the trial courts until the contrary is demonstrated. In this case we would not only have to go to other parts of the record to supplement bills of exception 1, 2, 3 and 10, but would have to read all of the facts and sift them only in the light of such broad objections, before we could pass on same. This we are not required to do. It would be reasonable on the trial of one charged with murder, when the record shows a shooting on September 7th and death of October 26th following, that issues might arise upon which either the State or the defense could legitimately call for testimony as to the condition of the body and organs of the injured party, or his wounds, at any time between the shooting and death. We call appellant's attention to the case of Simpson v. State, 97 Tex.Crim. Rep.,263 S.W. 273, in which testimony somewhat similar to that here complained of was held admissible.

Appellant's theory of the case was self-defense. As rebutting this, and also as a part of the res gestae, it was permissible to show appellant followed the deceased into the store of Martinez and there shot him as he lay on the floor with his hands upraised, and that before he fired the last shot Martinez said to appellant not to shoot any more, the man was down. Mr. Branch cites cases in Sec. 87 of his annotated P. C. upholding the admissibility of the statements of third parties as res gestae when same illustrate the feelings, motives and acts of the principal actors. See Humphrey v. State, 47 Tex. Crim. 262,83 S.W. 187.

Bill of exception 14 fails to show what, if any, answer was made by the witness to whom same was propounded. For aught we know he may have answered in the negative, and the question presents in its mere form no such hurtful matter as calls for a reversal. If the objection be to the testimony and not to the form of the question, it should appear from the bill not only that the question was asked but also that it was answered and how. Alexander v. State, 82 Tex.Crim. Rep., *Page 446 199 S.W. 292; Jackson v. State, 28 Texas App., 143, 12 S.W. 701; Rodgers v. State, 34 Tex.Crim. Rep., 31 S.W. 650.

The opposite party has the right, under our practice, in cross-examining witnesses to good character, to ask with reference to specific instances which reflect unfavorably on the trait involved. See Sec. 184, Branch's Annotated P. C.; Forrester v. State, 38 Tex.Crim. Rep., 42 S.W. 400; Stull v. State, 47 Tex.Crim. Rep., 84 S.W. 1059. We are not prepared to say that under this rule it would not be permissible to ask a witness in a murder case, who has testified to the good general reputation of the accused as a peaceable, law-abiding citizen, if he has not heard that the accused had been implicated in other murder charges. In no event would we hold that the mere asking of such question, and its withdrawal upon objection, would establish that a hurtful and improper question had been purposely asked by the State.

Relative to the statement of appellant claimed by the State to have been made to his wife when he first saw her after the shooting, but while under arrest, we note that appellant testified as to his own mental condition between the time of the shooting and when he made bond, as follows: "I was suffering and hurting and nervous." Again when asked if he was laboring under pain and excitement during that time, he said, "Yes, I will leave it to you," evidently referring to the prosecuting attorney shown by the testimony to have been present during said time. Under this record we fail to see any error in the disposition in our former opinion of appellant's objection to testimony as to what he said to his wife.

Paragraph five of the court's charge set forth the usual and customary definition of malice aforethought. This was excepted to for its failure to tell the jury that sudden anger, rage, resentment, fear or terror, in the mind of the accused at the time of the homicide, would be a sufficient provocation to excuse or justify the accused in his conduct at the time charged in the indictment; and would also be sufficient to show that the defendant acted without malice aforethought. If we comprehend this complaint it seems without merit. Such a charge as suggested would clearly be on the weight of the evidence. Gatlin v. State, 113 Tex.Crim. Rep., 20 S.W.2d 431. It is the duty of trial courts under our present murder statute to let in testimony as to all relevant facts and circumstances surrounding the killing, and all such facts and circumstances going to show the condition of the mind of the accused at the time, etc., which may be considered by the jury in determiningthe punishment to be assessed. In the instant case apparently all such facts and circumstances were admitted in evidence, and the court told the jury in his charge, after defining malice aforethought, that unless from all the facts and circumstances in evidence before them they believed beyond a reasonable doubt that the accused was actuated by malice aforethought, *Page 447 they could not assess a punishment of more than five years. This we believe to be the character of charge applicable to the use to be made by the jury of such facts, etc., as is contemplated by the statute.

We fear appellant overlooked in his criticism of the court's charge on apparent danger the statement in same as follows: "Or if at said time it reasonably appeared to the defendant, viewed from his standpoint alone, that said Boatright had made, was making, or was about to make an attack upon him," etc. Clearly this part of the court's charge brings this case within the rule laid down in the cases cited in appellant's motion. See Carlile v. State, 112 Texas Crim Rep., 554, 18 S.W.2d 163; id. 90 Tex.Crim. Rep., 232 S.W. 822. As we understand the charge the court did tell the jury that if appellant believed, viewed from his standpoint alone, that the deceased was about to make an attack upon him, causing him to fear for his life or serious bodily injury, that he would have the right to defend himself.

We have again examined the record with reference to the sufficiency of the testimony to justify the jury in finding appellant guilty of murder with malice aforethought, and are unable to bring ourselves to believe said record deficient in this particular. We have viewed the other complaints made in appellant's motion, and are of opinion that none of them call for favorable action on the part of this court.

The motion for rehearing will be overruled.

Overruled.