In complete reply to the brief and argument of appellant's attorneys, made the dissenting opinion herein, the stenographer is hereby directed to give immediately following this, the brief and argument of Hon. C.E. Lane, Assistant Attorney-General, and *Page 380 Messrs. Blount Strong, in behalf of the State, citing and quoting the authorities as given by them.
The said brief and argument of Hon. C.E. Lane, Assistant Attorney-General, and Messrs. Blount Strong for the State, is:
1. "In view of the fact that the opinion affirming this case so thoroughly and completely disposes of every question raised by appellant, we really deem it unnecessary to file a reply to the motion for rehearing filed herein; but in view of the fact that the opinion of affirmance is not concurred in by all members of the court, we desire to cite a few additional authorities.
"Attorneys for appellant in presenting the motion for rehearing seem to have a misconception of the purpose for which the testimony of the witness, Bill Lee, was introduced by the State. They seem to be laboring under the impression that this testimony was introduced by the State `for the purpose of showing that the brother of defendant was undertaking to tamper with the witness, Bill Lee, and to corruptly influence him to testify falsely in behalf of defendant,' and all the authorities cited in the motion for rehearing are cases of this character, and in our judgment, do not touch the real question presented. As stated by the court, in its opinion affirming this case, such was not the purpose of the testimony and there is nothing in the testimony that could possibly lead the jury to believe that such was the purpose, — the only purpose for which the testimony was offered and for which it could be possibly used by the jury was to show theinterest and bias of the witness, Philip Burnaman, in behalf of his brother, the defendant, and the trial court so stated to the jury when the testimony was admitted, using this language: `It only goes to the credibility of the witness.'
"We are aware of the rule that the trial court can only charge the jury in writing, yet in passing upon the proposition of whether or not the jury probably used this testimony for any other purpose to the detriment of the defendant, and especially in the absence of a requested special charge to limit this testimony, we believe the court is authorized to consider this, because under the authorites in the absence of a special charge it must, at least, reasonably appear that the jury, in all probability, did use the testimony improperly against thedefendant.
"That this testimony was clearly admissible to show the interest and bias of the witness, Philip Burnaman, and that to without laying a predicate, we call the court's attention to the following additional authorities: Earles v. State, 64 Tex. Crim. 537, 142 S.W. Rep., 1181; Pope v. State, 65 Tex. Crim. 51, 143 S.W. Rep., 611; Sexton v. State, 48 Tex. Crim. 497; Warren v. State, 54 Tex.Crim. Rep., 114 S.W. Rep., 380; Lowery v. State, 53 Tex.Crim. Rep., 110 S.W. Rep., 911; Burnett v. State, 53 Tex.Crim. Rep., 112 S.W. Rep., 74; Clark v. State, 43 S.W. Rep., 522; Sue v. State,52 Tex. Crim. 122, 105 S.W. Rep., 804; Renn v. State,64 Tex. Crim. 639, 143 S.W. Rep., 167; Burman v. State, *Page 381 67 Tex. Crim. 8, 148 S.W. Rep., 757; Sims v. State, 45 S.W. Rep., 705; Tow v. State, 22 Texas Crim. App., 175; Porch v. State, 50 Tex.Crim. Rep., 99 S.W. Rep., 102.
"In the case of Tow v. State, above cited, Judge Willson, speaking for the court, says: `After she (Mrs. Cowan) had testified on the trial, the defendant offered to prove that about two hours before the homicide she said that she made her son, James Cox (the deceased) clean up the shotgun and load it with twelve buck shot in each barrel and told him if defendant came on her premises to kill him. This proposed evidence upon objection made thereto by the State, was rejected. This ruling of the court was erroneous. If for no other purpose, the offered evidence was competent to disclose the unfriendly state of the witness's feeling towards the defendant and the malignant character of such feeling.'
"It is always competent to show the animus, the state offeeling of the witness towards the party against whom suchwitness testified, and in such examinations great latitude isallowed. (See Tow v. State, 22 Texas Crim. App., 175.)
"We call the court's attention to the fact that no predicate was laid before offering to prove these declarations of the witness, Mrs. Cowan. The court holds such declarations admissible as independent and original testimony to show bias, interest, etc.
"In the case of Clark v. State, above cited, Judge Hurt, speaking for the court, says: `It appears by bill of exceptions No. 6 that appellant introduced one Peter King, a negro, who testified to material facts for the defendant. Counsel for the State, on cross-examination, asked the witness, "If he did not, during the trial of this case, go to Jonas Williams (a negro witness for the State), and offer to give him $10 for the purpose of paying a fine assessed against Williams' daughter, at Scurry, Texas, if he (Williams) would not testify against him (King) at this trial?" King replied that he did not do so. Afterwards Jonas Williams was placed on the stand, and testified that Peter King had offered him $10, etc. Appellant objected to this testimony, and the court overruled the objections, and defendant excepted. This evidence was clearly admissible. Its object was to show the interest and anxiety of Peter King in behalf of appellant. The jury had a right to know what his feeling and interests were, so as to pass upon the credit to be given to his evidence. It was that character of testimony that would not be used by the jury for any other purpose than as going to the credit of Peter King.' (See Clark v. State, 43 S.W. Rep., 522.)
"In the case of Sexton v. State, above cited, this court, in an opinion delivered by Judge Davidson, held that it was permissible to elicit from a witness for defendant `that she (the witness) had lived in adultery with the defendant for five or six years,' and `that she knew the defendant had a living wife and child while she was living in adultery with him,' for the purpose of showing her motive and bias in the case then on trial for swindling of defendant, and the friendship and close relation *Page 382 to the defendant, and the opinion does nor show that this testimony was limited to the purpose for which it was introduced.
"In the case of Burnett v. State, above cited, Judge Ramsey, speaking for the court, says: `There can be, we think, no doubt that it is always permissible in every case where it can be shown by competent evidence to make proof of the hostile attitude of any witness in respect to any party for any cause before the court. Such evidence is clearly admissible for the purpose of affecting the credibility of a witness and the weight of their testimony,' citing Enc. of Evidence, vol. 2, page 406; Surrell v. State, 29 Texas Crim. App., 321; Watts v. State, 18 Texas Crim. App., 381. (See 112 S.W. Rep., 79.)
"In the case of Porch v. State, above cited, Judge Brooks, speaking for the court, says: `Of course, it is a well known rule of law that declarations and acts of witnesses out of the presence of appellant can not bind appellant; but this rule has its qualifications. Declarations of witnesses who testify for the State or defense, which show their bias, prejudice or favoritism, may be introduced for the purpose of showing said bias, prejudice or favoritism.' (See Porch v. State, 50 Tex.Crim. Rep., 99 S.W. Rep., 102.)
"In the case of Renn v. State, above cited, this court, speaking through Judge Harper, in a very able and well considered opinion, upon the identical question here involved, after citing numerous authorities in support of his position, and that of the majority of the court, quotes with approval the following from the American English Ency. of Law, vol. 30, page 1102:
"`Disparaging evidence of matters otherwise collateral, may be received when it tends to show the temper, disposition or conduct of the witness in relation to the cause or parties; and not only is this evidence admissible on cross-examination of the witness, but other witnesses may be questioned by the opposite party in relation thereto,' citing authorities.
"This case is not only directly in point on the admissibility of this testimony, but also directly in point on the proposition that it was not necessary to lay a predicate before same was admissible.
"In the case of Sue v. State, 52 Tex.Crim. Rep., 105 S.W. Rep., 804, the court, speaking through Judge Brooks, on the admissibility of this character of testimony, says: `Bill of exceptions No. 43 shows that while the witness, Dr. Shields, for the State was on the stand, the following questions were propounded to him by the State: "State whether or not the witness, John Daniels, a witness for the defendant, had told him (Shields) in the town of Winnsboro, about six months ago that if he (Shields) would assist him (Daniels) in testifying that the malt corn hauled to Shields' mill by the witness, Daniels, belonged to the witness, J.S. Warren; that they would send the old scoundrel (meaning Warren) to the penitentiary." Appellant objects to same because the same is irrelevant and immaterial and was an attempt by the State to impeach the witness, Daniels, upon an immaterial *Page 383 issue and has no connection whatever with the case and throws no light whatever upon same. This testimony was pertinent in that it showed animus on the part of the defense witness, Daniels, against the State and favoritism on his part to the appellant.'
"The court, in the same case, upon the question of limiting testimony of this character, says: `Bill of exceptions No. 45 complains that the court erred in its failure and refusal to limit the testimony of the witness, Alex Brice, wherein he testified that the defendant's witness, Will Lemmons, had said to him on the 8th or 9th of January, 1907, at Perryville, Texas, "that the State in this case is up against a hard proposition, as the defendant's attorney and his Uncle John Nixon and he (Lemmons) was all working for the defendant in this case and that this was a hard proposition for the State to go up against." This testimony could not possibly have been used for any purpose. Therefore, it was not necessary to limit the same. (Citing numerous authorities.) When testimony could not be illegitimately or rationally used for any other purpose, it is not error to refuse to limit same for that purpose.'
"In the recent case of Burman v. State, 67 Tex.Crim. Rep., 148 S.W. Rep., 757, this court, speaking through Judge Harper, in passing upon the admissibility of this character of testimony says: `In bill No. 6 it is complained that the State was permitted to ask Myrtle Lindsenby, a witness for defendant, if Jim Burman, an uncle of defendant, had given her a pair of shoes. If it was a question of whether or not Jim Burman had attempted to bribe the witness, the defendant not being connected with it, it would, perhaps, have been inadmissible, but the objections were that it was calculated to prejudice defendant with the jury and to impeach the testimony of the witness. The relations existing between the parties, the state of their feelings, their bias and prejudice, have always been held to be admissible and if the testimony was adduced to show the relation existing between the Burman family and the witness it would he admissible for that purpose.' (Citing Earle v. State, 64 Tex.Crim. Rep., 142 S.W. Rep., 1181, and Pope v. State, 65 Tex.Crim. Rep., 143 S.W. Rep., 611.)
"It does not appear that any predicate was laid before this testimony was offered, but same was offered as original and independent testimony to show the bias and interest of the material witness for the defendant. It does not appear either that this testimony was limited for the purpose for which it was introduced.
"Mr. Branch in his Criminal Law, in discussing the admissibility of this class of testimony, section 461, page 545, says: `The motives which operate upon the mind of the witness when he testifies are never regarded as immaterial or collateral matters. A party may prove declarations of witnesses which tend to show bias, interest, prejudice or any other material state or status, which fairly construed might tend to affect his credibility,' citing the following authorities in support of this proposition: Mason v. State, 7 Texas Crim. App., 623; Sager v. State, 11 Texas Crim. App., 110; Bonnard v. State, 25 Texas Crim. *Page 384 App., 173; Bennett v. State, 28 Texas Crim. App., 539; Green v. State, 54 Tex.Crim. Rep.; Gelber v. State, 56 Tex. Crim. 460; Reddick v. State, 47 S.W. Rep., 993.
"These authorities conclusively settle the proposition that this testimony was clearly admissible for the purpose of showing the bias and interest of the witness, Philip Burnaman, who was a very material witness for appellant.
2. "We feel that we should apologize to the court for further burdening the record in this case, and we would not do so but for the fact that counsel for appellant, after this case was submitted on motion for rehearing, requested time of the court in which to file an additional brief, and as we understand were granted by the court until the 11th of the present month (June) to do so. No additional argument was filed by that date, hence if one is filed we will not have an opportunity, probably, to see it before this case is finally disposed of.
"We have carefully re-read the motion for rehearing filed in this case and most of the authorities cited therein, and after doing so we are still convinced, as we were when this case was originally submitted, that there is not a serious question raised by the record in this case, and it strikes us that counsel for appellant are rather seeking to drive this court to a retraction of the original opinion of affirmance, by constant insistence rather than by citation of authority in support of their contention.
"In our reply to the motion for rehearing we devoted most of same to argument and citation of authorities that the testimony of the witness, Lee, as to what the witness, Philip Burnaman, said to him was admissible for the purpose of showing the bias and interest of said witness. We did this for the reason that counsel for appellant seemed to rely principally upon the inadmissibility of this testimony for a reversal of this case. We believe the authorities cited by the court and in this reply on this proposition has even convinced counsel for appellant that this testimony was admissible for that purpose.
"In view of the fact that we are not apprised of just what the `additional argument' of counsel will be, we desire to refer, in a brief way, to the assignment of error that this testimony should have been limited by the trial court.
"Mr. Branch, in his Criminal Law, section 366, states the rule with reference to limiting testimony as follows: `If impeaching testimony could be used by the jury for purposes other than impeachment so as to exercise a strong, undue or improperinfluence with the jury as to the main issue, injurious andprejudicial to defendant, the charge must limit it so that no unwarranted results would ensue (citing numbers of authorties).'
"Judge Brooks, in the case of Sue v. State, 52 Tex. Crim. 102, lays down the rule as follows: `When testimony in a trial for murder could not have been legitimately or rationally used for any other *Page 385 purpose than that for which it was offered there was no error in failing to limit same to that purpose.'
"This rule is cited with approval in the case of Wright v. State, 56 Tex.Crim. Rep..
"Now the court will notice in the rule laid down by Mr. Branch and approved by this court, that the testimony must be such if not limited that it could exercise a strong, undue or improper influence with the jury as to the main issue injurious and prejudicial to defendant.
"Under this rule the court must conclude from this record that the testimony of the witness, Lee, could legitimately andrationally be used by the jury to exercise a strong, undue orimproper influence with the jury in finding appellant guilty of the offense with which he was charged. That is that it was such testimony that the jury would, probably, use, if not limited, to establish the fact that appellant unlawfully killed deceased, and in passing upon this proposition this court must presume that the jury who tried this man was, at least, of average intelligence and had some regard for the oath administered to them and the charge of the court delivered to them.
"The testimony of the witness, Lee, in effect, was `that Philip Burnaman came to him on two different occasions and told him that they ought to get together on what appellant said to them just after the killing, as they would soon have to go to court,' and then repeated what he (Philip) understood appellant to say on that occasion, and the only reply made by the witness, Lee, was that he expected to tell the truth about the matter.
"This certainly does not show an attempt on the part of Philip Burnaman to bribe the witness, Lee, but it shows not only a great interest on the part of Philip in his brother but a strong bias in his favor. This does not fall in the class of cases cited by appellant at all. All those cases are where the friends and relatives had undertaken to improperly or corruptly influence the witness.
"Can it be said that there was anything in the conversation between the witness, Lee, and Philip Burnaman that tended, in any way, or could have been used in any way by the jury to establish the guilt of appellant for unlawfully killing deceased, which wasthe main issue to be established? Can it be said that the mere fact that Philip Burnaman was a brother of appellant and had this conversation with the witness, Lee, that an intelligent jury would presume that appellant was responsible for the conversation and would, therefore, override the charge of the court and send this man to the penitentiary on presumption instead of evidence? Juries in Texas are ordinarily men of average intelligence, of at least sufficient intelligence to understand and regard their oaths, and as said by Judge Brooks, in the Wright case, supra, `It is utterly irrational to presume that a sworn jury would disregard their oaths and convict a man of murder on the theory that they thought he had committed burglary.' *Page 386
"Outside of showing the interest of the witness, Philip Burnaman, what occurred between him and the witness, Lee, was favorable to appellant, for Philip stated on that occasion just what he testified to in the case, which was favorable to defendant, and it therefore tended to corroborate Philip's testimony, because it showed that he was making the same statement the day after the killing that he made on the trial. The witness Lee made no statement as to how he understood the matter, therefore the naked fact that Philip had this character of conversation with Lee is the one thing that appellant claimed that the jury could use to his disadvantage, and in order for this case to be reversed this court must determine that an intelligent jury, duly sworn, did permit this fact to exercise astrong, undue or improper influence in determining the guilt of appellant of manslaughter. To our minds, if the court will pardon the expression, it is absolutely absurd to impute to a jury any such want of common sense, and would, indeed, be going far into the field of imagination and speculation, and would write into the jurisprudence of this State a precedent, if followed, that would result in the improper reversal of many cases.
"The case of Clark v. State, 43 S.W. Rep., 522, is a case, in our judgment, disclosing facts which were much more calculated to injure the rights of appellant than the facts of the case at bar, and we desire to call the court's special attention to the opinion of Judge Hurt in this case, as follows:
"`It appears by bill of exception No. 6 that appellant introduced one Peter King, a negro, who testified to material facts for the defendant. Counsel for the State, on cross-examination, asked the witness, "If he did not during the trial of this case go to Jonas Williams (a negro witness, for the State) and offer to give him $10 for the purpose of paying a fine against Williams' daughter if he (Williams) would not testify against (we construe this to mean contrary) him (King) at thistrial?" King replied that he did not do so. Afterwards Jonas Williams was placed on the stand and testified that King had offered him $10, etc. Appellant objected to this testimony and the court overruled the objection and defendant excepted. This evidence was clearly admissible. Its object was to show the interest and anxiety of Peter King in behalf of appellant. The jury had a right to know what his feelings and interests were so as to pass upon the credit to be given his evidence. It was thatcharacter of testimony that would not be used by the jury for anyother purpose than as going to the credit of Peter King.'
"Certainly if the testimony set out above in the Clark case which was offered to show the interest of a defendant's witness should not have been limited by the court to the purpose for which it was offered, it will require no further argument that the testimony in the case at bar was not that character of testimony, requiring at the hands of the court a charge limiting same.
"In our reply to the motion for rehearing heretofore filed, we referred to and quoted from the case of Sue v. State,52 Tex. Crim. 122, *Page 387 105 S.W. Rep., 804, and we desire here again to call the court's particular attention to this case, and the authorities cited therein by Judge Brooks, on the question of it not being necessary to limit testimony of this character.
"As heretofore stated, this court to grant this motion for rehearing must be convinced that the jury permitted this testimony to exercise a strong, undue or improper influence as to the main issue and that they could, legitimately and rationally, use it for that purpose, and in this connection we call the court's special attention to the fact that the record shows in this case that at the time the trial court admitted this testimony he stated in the presence and hearing of the jury the specific purpose for which it was admitted, and while we understand that charges in felony cases to a jury must be in writing, yet we submit that in passing upon the proposition as to whether or not the failure to limit this testimony did cause the jury to permit same to exercise an improper influence on them in the consideration of the case, that this court can and should take into consideration this statement of the trial court at the time he admitted the testimony, for the reason that it absolutely destroys the proposition asserted by appellant, that the jury did use this testimony for some other purpose than that for which it was admitted.
"Judge Brooks, while on the bench, rendered an opinion in which he held that a verbal declaration of this kind could and should be taken into consideration in passing upon the proposition as to whether appellant was probably injured by the failure to limit testimony. The writer of this read this opinion within the last two weeks, but we have so far been unable to put our hands on it again, and, therefore, will be unable to cite it, but without reference to this opinion by Judge Brooks, it seems to us to be a sound proposition of law, that this court is fully authorized to take into consideration the entire record in the case in passing upon this matter.
"No special charge was requested by appellant limiting this testimony and this court has repeatedly held, in the absence of a special charge, that it must be apparent that injury was done the defendant by failure of the court in its main charge to charge on any particular phase in the case.
"In addition to the authorities cited above and those cited in our reply to the motion for rehearing heretofore filed, we call the court's attention to the following additional authorities: Blanco v. State, 57 S.W. Rep., 828; Waters v. State,54 Tex. Crim. 322; Wright v. State, 56 Tex.Crim. Rep.; Treadaway v. State, 65 Tex.Crim. Rep., 144 S.W. Rep., 655; Harrelson v. State, 60 Tex.Crim. Rep.; Branch's Crim. Law, sec. 873, p. 555, last subdivision.
"We submit that this court can not, reasonably, arrive at the conclusion that the jury in this case could, legitimately andrationally, use this testimony in establishing the main issue, and that said testimony did exercise a strong, undue or improper influence with the jury for said *Page 388 purpose, and therefore there was no error in failing to limit said testimony. Certainly none in the absence of a requested special charge.
"We submit that the appellant in this case, from the record before this court, has had a fair and impartial trial at the hands of an intelligent jury; that his punishment is, indeed, lenient for the crime committed, and that the motion for rehearing should, we earnestly insist, under the authorities, be overruled.
3. "That the trial court properly charged on defendant's right to continue to shoot so long as it reasonably appeared to him that he was in danger, etc., we cite the following additional authorities: Clark v. State, 56 Tex.Crim. Rep.; Smith v. State, 57 Tex.Crim. Rep.; Swain v. State, 48 Tex. Crim. 98; Branch's Crim. Law, sec. 452, p. 278.
"Under these authorities — in fact, under the unbroken line of decisions in this State — it would have been reversible error under the facts in this record for the trial court to have failed to have given the charge which was given on the right of defendant to continue to shoot so long as it reasonably appeared to him that he was in danger.
"On the proposition that the trial court properly charged the jury in this same paragraph of his charge that defendant did not have the right to continue to shoot after the danger ceased, as viewed from his standpoint, we call the court's attention to the opinion of this court, speaking through Judge Harper, in the case of Renn v. State, 64 Tex.Crim. Rep., 143 S.W. Rep., 167.
"It is certainly an elementary proposition of law that defendant has not the right to continue to shoot and inflict wounds that hasten or contribute to the death of the deceased after the danger has ceased as viewed from his standpoint, and this is what the trial court told the jury in the case at bar, and the trial court only instructed the jury on this phase of the law in connection with his charge presenting one phase of manslaughter.
"If the trial court had not given the latter part of the paragraph of the charge on this subject, as follows, `And if such first shot was fired in self-defense and defendant fired other shots into the head or body of deceased, thereby producing or hastening the death of deceased, when it no longer reasonably appeared to him that he was in danger, then such latter shots could not be in self-defense, but the offense in such event would be no higher than manslaughter,' the jury might have found from the evidence that the first shot was fired in self-defense, but that other shots which hastened or contributed to the death of deceased were fired not in self-defense, and have found the defendant guilty of murder in the second degree, — hence it was incumbent upon the trial court to give the portion of the charge above quoted. But in justice to the State, the court should have required the jury to find that the ingredients of manslaughter existed at the time of the firing of the last shots before they would be justified in reducing the offense to manslaughter, but instead of so doing he simply charged the jury that under *Page 389 such circumstances defendant could be guilty of no higher offense than manslaughter, and certainly the defendant can not complain at this charge as it was presenting one phase of the case raised by the facts in a most favorable light to him. We therefore submit that there is nothing in the contention of appellant on this charge."