Henry v. State

ON MOTION FOR REHEARING.

GRAVES, Judge.

Appellant’s Bill of Exceptions No. 1 relates to the trial court’s failure to allow a certain doctor to detail what he had been told by appeffant relative to the symptoms of a disease from which he seemed to be suffering. We think this attempted delineation of such symptoms was hearsay and also a self-serving declaration and was not admissible as offered.

Bill of Exceptions No. 2 is incomplete. It reflects that a witness was asked if she was acquainted with the deceased’s reputation as being a quarrelsome, contentious, overbearing and dangerous man, to which question it is claimed the witness would have answered, “Yes”, but was not allowed to do so. The bill goes no further than that, and therefrom we are unable to see any injury to appellant. This bill does not show what her final answer would be as to whether such was good or bad. However, there are many other and further bills relating to the same subject, in all of which it seems that the trial court allowed appellant to prove that the deceased possessed a general reputation as a man of violence, but each time he refused to allow proof relative to the deceased’s reputation as being a. quarrelsome, contentious, overbearing and dangerous man. However, it is noted that the witnesses were allowed to testify that the deceased’s reputation as a man of violence alone was bad. All of these bills were qualified by the trial court with the statement that nowhere in appellant’s testimony is it shown that he knew the deceased’s reputation for being a quarrelsome,' contentious, overbearing and dangerous man.

*291Another bill complains because the trial court refused to allow appellant to prove that the deceased was a man of quick and violent temper. This bill is also qualified to the extent that nowhere in appellant’s testimony is it shown in those words that he knew of the deceased’s reputation as to these characteristics.

Again, in a further bill appellant attempted to prove by a witness who was acquainted with the deceased that from the witness’ knowledge and acquaintanceship with deceased, would he (the witness) consider the deceased a fighting, dangerous man of high temper ? Attached to said bill, we find the same qualification of the trial court as above set forth.

A further bill shows that after a witness had answered that deceased’s reputation as a man of violence was not good, he was then asked but not allowed to answer, would the witness consider the deceased as a fighting man of high temper or as a man slow to anger?

There are many more bills directed at the fact that the trial court refused to allow appellant to prove anything relative to the deceased’s characteristics save that of being a violent man, and to each bill is appended the same qualification of the trial judge that nowhere in the record is there found a statement in such words that “he, the defendant, was familiar with the general reputation of the deceased as a violent and fighting man.” Other qualifications to further bills along the same line merely change the characteristics of the deceased as quarre'some, contentious, overbearing and dangerous, and show appellant’s failure to testify that he was familiar with the deceased’s reputation for such characteristics.

We fear that the careful trial court has incorrectly limited the rule relative to threats as found in Article 1258, P. C., where threats have been proven, it is admissible to make inquiry as to whether the deceased was a man of violent or dangerous character, or a man of kind and inoffensive disposition, etc. This rule has been enlarged upon as shown in Horbach v. State, 43 Tex. 242; and it will be noted therefrom that if “the evidence exhibiting the acts of the deceased at the time of the killing constituted a predicate for the admission of the proof of the general character of the deceased as a violent and dangerous man, and that he was in the habit of carrying weapons”, such proof should be admitted upon the ground of self-defense. True it is that the qualifications to said bills state *292that appellant did not say in those words that he knew of such qualities on the part of the deceased, but he did testify that he knew and had heard of many difficulties and fights in which the deceased had engaged, and many such were testified to by him as well as by other witnesses.

As authority for the proposition that where self-defense is an issue, or who began the difficulty, the appellant may prove, for the purpose of showing who probably began the difficulty, that the deceased had the general reputation of being a violent and dangerous man. Such proof is admissible whether threats are involved or not. See Meeks v. State, 135 Tex. Cr. R. 170, 117 S. W. (2d) 454; and many cases cited on page 457.

We think it is abundantly shown by the proof that appellant knew of many of the acts attributed to the deceased that were utilized by the proffered witnesses in arriving at what they thought deceased’s reputation to be. Appellant himself testified to having heard of many such instances, and while he nowhere says that he knew what the effect of such conduct upon the deceased’s part was in forming the opinion of the witnesses as to the general reputation, and nowhere does he say that he knew what the people thought of such conduct in forming their opinions relative to deceased’s general reputation along certain lines, nevertheless, we think the testimony of appellant clearly shows that he was familiar with such acts upon the part of the deceased and that he may have had such in contemplation at the time he fired the fatal shots.

The reputation of deceased for the various qualities herein refused by the trial court does not rest upon the law of threats, as set forth in Art. 1258, P. C., but goes further and is based upon appellant’s right of self-defense, and as to who began the difficulty, and we express the opinion that same should have been allowed. See Young v. State, 78 Tex. Cr. R. 314, 180 S. W. 686, where it was held that it was error to exclude testimony that deceased had a bad reputation for peace and order, was a turbid ent and violent man, who would execute any threat made, and was reputed to carry a shotgun or rifle with him.

In Lacey v. State, 83 Tex. Cr. R. 607, 204 S. W. 433, it was held that on the issue of self-defense accused should have been allowed to show that deceased had the reputation of being a quarrelsome, contentious and overbearing man, and that the accused knew of such reputation.

*293See also Williams v. State, 14 Tex. Cr. App. 102, which was reversed for the failure to allow accused to show deceased’s reputation as a violent and dangerous man.

In Cole v. State, 48 Tex. Cr. R. 439, 88 S. W. 341, we said:

“The doctrine seems to be that under such circumstances (self-defense) appellant has the right to have in evidence any fact which tends to prove the bona tides of his belief, that he was in danger. In that respect he can rely on proof of the desperate character of his adversary, or on proof of some special act or communication by deceased to him, which indicates his dangerous character. Childers v. State, 30 Tex. Crim. App., 193; Dodson v. State, 70 S. W. Rep. 969.”

In Daniels v. State, 58 Tex. Cr. R. 569, 126 S. W. 1153, it was held error to refuse to allow the acused to prove that the injured party, in a difficulty, had the general character of being a ferocious, dangerous and high-tempered woman and bore such reputation in the town of Greenville, Hunt County, and that her reputation for peace and quietude was not good.

In Meeks v. State, supra, it was held that irrespective of threats, when self-defense is an issue, the deceased’s reputation for being a violent and dangerous man is admissible as going to show who probably began the difficulty, with many cases cited thereunder. This seems to be the rule in other states also.

Under this line of decisions, we are of the opinion that the trial court erred in limiting the testimony to the deceased’s reputation for violence alone.

It is again asserted that our original opinion was in error in upholding the trial court relative to his failure to sustain an exception to the court’s charge, as set forth therein. We remain of the opinion that such requested instruction would have been upon the weight of the evidence and was properly refused. Appellant’s right of self-defense was submitted to the jury upon a proper instruction, and in such defensive testimony, all matters of health and weakness of body were given in proof.

Being impressed with the error shown relative to the proof of the reputation of the deceased in certain matters, the appellant’s motion for a rehearing is granted, the affirmance hereof set aside, and the cause is now reversed and remanded