This case is to be reversed on the sole ground that the trial judge refused to permit Sterling Bynum, one of appellant's witnesses, to tell the jury that he "thought," or his "impression" was, "that the deceased was attempting to draw his pistol" — simply that and nothing more.
Before I wrote the original opinion herein I fully investigated and thoroughly considered the question and the authorities. Since then, I have again done so. This has not changed my opinion, but confirmed it. *Page 606
The question was fully and accurately given in my original opinion, but I will here again briefly state it.
At the time appellant killed deceased, Bynum knew neither of them, and had nothing whatever to do with either, at the time, before or after the killing, and had absolutely nothing whatever to do with the difficulty between appellant and deceased at the time, before or after the killing, and knew nothing whatever about it. From Bynum's own testimony, deceased was some eighty feet distant, and had his back towards him, so it was physically impossible for Bynum to have seen deceased's right hand before or at the time appellant first shot deceased, and for that reason, if for no other, he should not have been permitted to tell the jury that he "thought" deceased "was attempting to draw his pistol," nor should he have been permitted to tell the jury his "impression" was, "deceased was attempting to draw his pistol," even though he was ready and willing to so swear. But if he had placed himself where he could have seen deceased's right hand, still he should not have been permitted to tell the jury what he "thought" nor what his "impression" was. Neither his "thought" nor his "impression" had anything whatever to do with this case, or any question in it. It was in no way any part of the transaction.
Mr. Wigmore has so clearly and forcibly illustrated and demonstrated this in his recent and most valuable work on Evidence, I will here quote him:
"Such a witness is told by the court: `That is mere opinion; we want what you know, not what you think or believe.' This is one phrase of contrast which the court might use, — the contest between knowing (i.e., personally observing) and opining (i.e., believing without sufficient observation). But there is another phrase: the judge might say, `We want not your opinion; have you any facts? For we can guess and opine as well as you can; tell us facts if you have them.' This demand for `facts' means, as before, some real or positive grounds of knowledge in the witness. The principle of objection which the judge has in mind is the same in both cases; he will have knowledge, not opinion, — facts, not opinion." (Vol. III, p. 2542.)
Again, on page 2550, he says: "The true theory, then, of the opinion rule, in the sense we are here to use, is simply that of the exclusion of supererogatory evidence. It is not that there is any fault to find with the witness himself or the sufficiency of his sources of knowledge or the positiveness of his impression; but simply that his testimony, otherwise unobjectionable, is not needed, is superfluous. Thus the principle of exclusion is in no sense one of testimonial qualifications, but one of auxiliary policy. The delay and waste avoided might be in a single instance trifling; but its seriousness and its unbearableness can be appreciated if we suppose that there were no evidential limits whatever of the above nature. The time taken in the rehearsal of an interminable multitude of opinion, the confusion of the main issues by an additional mass of testimonial differences and impeachments, and the tendency for the jury now and then to decide simply according to the preponderance *Page 607 of numbers and of influential names, — all these are possibilities, in the absence of some limit of the present nature."
And on page 2550 he says: "What we have to notice, in inquiring as to the scope and the effect of the principle, is, that it does not employ any mere shibboleth; it does not rest on a simple caprice, prejudice, or tradition; and, most of all, it does not exclude any specific class of witnesses or all testimony on a specific subject. It simply endeavors to save time and avoid confusing testimony by telling the witness: `The tribunal is on this subject in possession of the same materials of information as yourself; thus, as you can add nothing to our materials for judgment, your further testimony is unnecessary, and merely cumbers the proceedings.' It is this living principle which is (or ought to be) applied in each instance; nothing more definite than this is the test involved by the principle. . . . There is, thus, no special department of knowledge and no fixed formula involved. We are dealing merely with a broad principle that, whenever the point is reached at which the tribunal is being told that which it is itself entirely equipped to determine without the witness' aid on this point, his testimony is superfluous and is to be dispensed with."
In my opinion neither of the cases cited by appellant, and noted by Judge Harper, in his opinion, reversing this case, are in point. Take the Thomas case, 40 Tex. 36. In that case Thomas was indicted and tried for an assault to murder Wren. The court states the evidence:
"The evidence for the State was given by Wren, the party assaulted, and Hix, the bar-keeper, who had witnessed the whole transaction. Their testimony does not materially vary, and was, in substance, that the parties had been on friendly terms; they casually met in the bar-room, and were standing at the bar, leaning against it, with one Morris standing between them. Drinks were called for by Wren, and afterwards accused bantered him to play at cards. He answered, `Show your money'; to which accused replied, `I have as much money as you have.' Wren then said, `I am not going to be made a d__d fool of,' and thereupon the lie was given. Wren says it was first given by accused, but the bar-keeper did not recollect by which; but instantly Wren seized or attempted to seize a glass tumbler, of more than ordinary size, which was on the counter, when his arm was seized by the bar-keeper and firmly held. At the same time accused stepped around Morris, who was between them and, drawing his pistol, fired at Wren, powder-burning his face, drawing blood, and the force of the discharge or shot staggering him to the wall. Just as the accused drew his pistol the bar-keeper let go Wren's arm, because, as he testifies, `he thought accused was going to strike Wren.' This all occurred very quickly and suddenly. Wren, released by the bar-keeper, instantly seized the tumbler and threw it at accused, and also a bottle." The witness Hix, the bar-keeper, was an actor in the fight between Wren and Thomas. He first seized and held Wren's arm to keep him from striking Thomas with a large glass tumbler, but just as Thomas drew his pistol to shoot Wren he let go Wren's arm and it was proper for him to tell why he acted. It was a *Page 608 part of the transaction — that "he thought Thomas was going to shoot Wren," showed why he acted. What the court decided in that case is very different and inapplicable to the question in this. Besides, even in that case the Supreme Court said the exclusion of that and other evidence, "may not be so material as to require a reversal of the judgment, and we do not so decide."
So in the Cochran case, 28 Texas Crim. App., 422. The report of the case shows that the witness Wilshire was standing right by Cochran when McLennan, whom Cochran killed, and for whom he was on trial for murdering, advanced towards him, "with his left hand held out towards defendant and the billiard cue in his right hand, with big end up, holding it in striking position." This court, in that state of evidence held Wilshire ought to have been permitted to testify: "The reason he (the witness) passed from defendant's left side around behind his back to his right side, was that he (witness) expected that deceased would strike at defendant with that billiard cue, and that he feared deceased might miss defendant and hit him." Thus, Wilshire was an actor in the affair, and it was proper under the circumstances to tell whyhe acted. It was part of the transaction.
So in the Harrison case, 25 S.W. Rep., 284, this court held the witness Pierce was correctly permitted to tell he struck Harrison over the head with a chair to prevent Harrison from killing Thomas, for he thought Harrison intended to kill Thomas with the pistol which he was drawing from his pocket. Thus Pierce was anactor in the affair, and not a mere bystander, and under the circumstances it was proper to tell what caused his action. It was a part of the transaction.
It is useless to take up the other cases. They are all on the same line. None applicable to this case. The reading of the cases and text-books cited by Judge Harper will show they are wholly inapplicable to the question in this case. They are all on a different character of evidence under altogether a different state of facts. A reading of them will demonstrate this.
This case should be affirmed, not reversed. I respectfully dissent.
December 23, 1914.