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TAYLOR V. STATE

115

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the hall and called, "Pa ;" that she did not “Willis Taylor was sitting down in the east remember hearing him say anything else. room near the north window, and got up and

went to the north window and said, 'Yonder She was asked if, when they walked out in they are for go], Pa; I don't remember which; the hall, she did not put her hands over her I think he said, "Yonder they are.' * * Не ears to keep from hearing the report of the [J. B. Taylor] came here this morning afoot, gun. She says after the shot she placed her and brought a double-barrel shotgun with him.

This is the gun that was on the bed in the west hands over her ears to keep from hearing

room.

* When J. B. Taylor and his son any more shots if they were fired. This Willis left the room, I placed my hands over witness had testified at the coroner's inquest my ears to keep from hearing the gun." and her testimony reduced to writing. The It was also error to permit Justice of the state was permitted to show her this written Peace Gaines to testify to the same facts. statement to refresh her memory and pro- As Mrs. Frank Taylor is a daughter-inpound to her certain questions with this end law of appellant, and consequently likely to in view. It is always permissible to refresh feel a deep interest in his trial, it may seem the memory of a witness. McLin v. State, a harsh rule of law to the state that under 48 Tex. Cr. R. 551, 90 S. W. 1107; Spangler such circumstances, she having testified to v. State, 41 Tex. Cr. R. 430, 55 S. W. 326. facts at the coroner's inquest which would But, after having attempted to do so, one have a strong tendency to show that Willis is not permitted to prove what his own wit- Taylor killed Gilley in accordance with a ness had testified on a former occasion, un- preconceived design of himself and appelless the witness swears to facts injurious to lant, and therefore was guilty of murder, his cause.

Mere failure to swear to facts and would have a strong tendency to show that one expects to prove by a witness fur- that appellant was a principal in the comnishes no grounds to prove that the witness mission of the offense, he being present, yet had so testified on a former occasion. At the state cannot prove she did so testify at common law one could not impeach his own the coroner's inquest, although she on the witness. By placing the witness on the trial declines to so testify; yet such is the stand he was supposed to vouch for the law. If, in addition to testifying that she truthfulness of the witness. Our Code has did not recollect so testifying, she had testiso far modified the rule that a party may fied to facts affirmatively hurtful to the attack the testimony of his own witness state, she could have been impeached, but when the facts stated by the witness called it was simply an instance where a witness by him are injurious to him, but in no oth- declined to testify to facts that she had once er instance can he attack a witness whom before testified to, and the state had a good he calls. Article 815, C. C. P. Mr. Branch, right to believe she would testify on this in his Criminal Law, has well stated the trial. The witness insisted she had no reccorrect rule, in section 866:

ollection of whether or not J. B. Taylor “Error to permit the state to impeach her own brought a gun with him that morning; that witness, where such witness merely fails to re- she does not recollect Willis Taylor going to member, or refuses to testify, or fails to make the north window and saying, "Yonder they out the state's case. proof is no ground for impeaching such wit-come, Pa,” just before the shooting, and ness. Bennett v. State, 24 Tex. App. 77, 5 that she had no recollection of putting her S. W. 527 [5 Am. St. Rep. 875); Dunagain hands over her ears as they went out of the v. State, 38 Tex. Cr. R. 614, 44 S. W. 148; Smith v. State, 45 Tex. Cr. R. 520,78 S. w. room to keep from hearing the shot. As be519; Scott v. State, 52 Tex. Cr. R. 165, 105 fore stated, at common law one could not S. W. 796; Wells v. State, 43 Tex. Cr. R. 451, impeach his own witness, and the Legisla67 S. W. 1020; Owens v. State, 46 Tex. Cr. R. 16, 79 S. W. 575; Hanna v. State, 46 Tex. ture has seen proper to modify this rule only Cr. R. 8, 79 S. W. 544; Ware v. State, 49 Tex. to the extent that one may impeach his own Cr. R. 415, 92 S. W. 1093; Skeen v. State, witness when, to his surprise, he not only

Cr. ; State, 51 Tex. Cr. R. 156, ioi s. w. 248: fails to testify as he expected, but instead Shackleford v. State, 27 S. W. 8; Finley v. thereof testifies to facts adversely to the inState, 47 S. W. 1015; Knight v. State, 65 S. W. terest of the person placing him on the wit89; Gibson v. State, 29 S. W. 471: Kessinger v. State, 71 S. W. 597; Erwin v. State, 32

ness stand. Tex. Cr. R. 519, 24 S. W. 904; Williford v.

[6] In a couple of other bills it is shown State, 36 Tex. Cr. R. 425, 37 S. W. 761; Ozark that after appellant had testified in his own v. State, 51 Tex. Cr. R. 108, 100 S. W. 927; behalf he placed witnesses on the stand who Gill v. State, 36 Tex. Cr. R. 596, 38 S. W. 190; Largin v. State, 37 Tex. Cr. R.' 574, 40 s. w. say they had known him for 30 years; that 280; Thomas v. State, 14 Tex.” App. 72; appellant had lived in Smith county that Dawson v. State, 74 S. W. 912; Goss v. State, long, and his reputation during all that 57 Tex. Cr. R. 557, 124 S. W. 108."

time was that of a peaceable, la w-abiding Having attempted to refresh the witness citizen. On cross-examination state's counmemory by exhibiting to her a copy of the sel asked the witnesses if they had heard statement she made at the coroner's inquest, that appellant killed a man in Georgia beand she having denied making such state-fore he came to Texas. The first witness anment, it was error to permit the state to in- swered, "No," before the court could rule on troduce the following portions of her state- the objection that such circumstance was too however, sustained the objection when made. standpoint, it reasonably appeared to him Notwithstanding the court did so, when the that his life or the life of his son Willis was next witness took the stand, the prosecuting in danger, and this was the occasion of his officer again propounded the same question, doing such acts, he would not be guilty. and before an objection could be made the The court's charge as given did not aptly witness answered, “Yes,” and stated that he and tersely state all these propositions of had also heard that before appellant came law, but we are satisfied it is only necessary to Texas he was a member of the Jesse to call the court's attention to them and he James gang of outlaws. This was improper, will do so on another trial. and such testimony was wholly inadmissible There are some other verbal criticisms of for any purpose, being too remote in time to the charge that we do not deem it necessary affect his standing as a law-abiding citizen. to discuss, but will only add that the court If it was true that appellant had killed a used inappropriate language in the following man in Georgia more than 30 years ago, and paragraph: at that time was a member of the Jesse "If you shall find, or have a reasonable doubt James gang, yet if during the entire 30 years grade of homicide, and that he is not justified

thereof, that the defendant is guilty of some he has been a citizen of Smith county, Tex., under the charge of self-defense, you will achis life and conduct has been that of a peace- quit him of murder, and find him guilty of no able, law-abiding citizen, the remote circum- higher grade of offense than manslaughter." stances should not, and will not be permit- Appellant contends that paragraph sugted to be, explored as affecting his standing gests to the jury to find appellant guilty of as a citizen at this time.

manslaughter, even though they may have a [7, 8] These are all the bills in the record, reasonable doubt of his guilt of such offense. except the objections to the charge as given, A man who did not read the paragraph and the exceptions to the refusal to give a critically might be misled into such belief, number of special charges requested. Appel- but on another trial it cannot again arise as lant was found guilty of manslaughter only, appellant has been acquitted of murder, but and a number of exceptions would pass out, language of such doubtful construction but we do not deem it necessary to detail should not be used in applying the law of the various objections raised, nor give the reasonable doubt as between murder and 17 special charges requested and refused, manslaughter. but rather state simply the law as applica- The judgment is reversed, and the cause ble to the facts in this case.

As appellant remanded. testified that before Willis Taylor fired the gun deceased drew a pistol, etc., the court should have given in charge the law of self

MITCHELL V. STATE. (No. 3612.) defense as to Willis Taylor both from ap- (Court of Criminal Appeals of Texas. June 23, parent danger to himself and his father and

1915. State's Rehearing Denied Oct.

13, 1915.) the right to defend from danger viewed in

1. HOMICIDE Om47-MANSLAUGHTER-PROVOthe light of threats communicated, and told

CATION. the jury, if Willis Taylor was justifiable, ap- To reduce a killing to manslaughter, and pellant would be guilty of no offense, and in- upon defendant's belief of adultery between his structed them that, even though they found wife and deceased, the killing must take place Willis Taylor was not justifiable in killing become aware of the facts.

at the first meeting of the parties after he has deceased, yet they would find appellant not [Ed. Note. For other cases, see Homicide, guilty, unless they found beyond a reason- Cent. Dig. $ 71; Dec. Dig. Om47.] able doubt he was a principal in the com- 2. CRIMINAL LAW On 1159–REVIEW-QUESmission of the offense, and should also have TIONS OF FACT. instructed the jury, that, even though appellate court seldom feels authorized to reverse

The jury is the trier of facts, and an appellant was present and aided Willis Taylor, a criminal case solely on the ground of the or by his conduct, words or gestures en- insufficiency of the evidence, if the state's evicouraged Willis, to commit the offense, yet dence is worthy of credit, and, if true, supports

the verdict. if at the time he did so it reasonably appear

[Ed. Note. For other cases, see Criminal ed to him that his life or that of his son Law, Cent. Dig. $$ 3074_3083; Dec. Dig. Om Willis was in danger, and, acting under such 1159.] belief, he did acts that might otherwise con-3. HOMICIDE 309 – MANSLAUGHTER - INstitute him a principal, he would not be STRUCTIONS-PROPER PROVOCATION.

In a prosecution for murder, where the guilty; in other words, if Willis Taylor evidence showed that the killing was occasionwas justifiable, as viewed from his stand- ed by defendant's belief of adultery of his wife point, appellant would not be guilty. If Wil- with deceased, and that defendant, though he lis Taylor was guilty, unless the jury found had no knowledge of it, had information au

thorizing him to believe that it had occurred, beyond a reasonable doubt appellant was a that he had come in contact with deceased after principal in the commission of the offense, having such information, and that when he obhe would not be guilty, or if he did acts that served the efforts of deceased to renew such

relations he shot from the window of his house would constitute him a principal, yet in so and killed deceased near his store, an instrucdoing, viewing the matter from appellant's / tion that, if defendant's wife and deceased had Tex.)

MITCHELL V. STATE

117

been guilty of adultery before the killing, and proper relations existed between deceased that defendant had no knowledge thereof and and his wife, it is the law of this state that no information from which he could believe such to be the case, the mere fact of adultery would in order to reduce a killing to manslaughnot of itself reduce the killing to manslaughter, ter, when this ground is relied on, the killwas erroneous, as not fairly presenting the is- ing must take place at the first meeting of sues made.

the parties after he has become aware of the [Ed. Note.-For other cases, see Homicide,

facts. The state's theory is that, although Cent. Dig. SS 649, 650, 652–655; Dec. Dig. Om 309.)

the record discloses that perhaps the reason 4. HOMICIDE 309 – MANSLAUGHTER - IN- why appellant killed deceased was his belief STRUCTIONS-ADEQUATE CAUSE.

that improper relations existed between him Adultery with the wife may reduce a hom- and his wife, yet he had met deceased on icide to manslaughter, and accused, relying on several occasions after he came to such con.

to that effect.

clusion, and on the occasion in question åp[Ed. Note.- For other cases, see Homicide, pellant went upstairs in his residence, waitCent. Dig. $8 649, 650, 652–655; Dec. Dig. Om ed until deceased came out of his store, and 309.]

shot deceased from ambush when he was 5. HOMICIDE Om47-MANSLAUGHTER-PROVO- doing nothing more than standing talking to CATION.

Adultery of defendant's wife with deceased a friend. If this is true, the appellant would need not be such as to cause offense to the be guilty of murder, and we would not diswife, and where it is shown that she is equally turb the verdict on the ground of the insuffiat fault, yet, if the conduct is such as to be an ciency of the evidence. It is true, if we acoutrage against the husband, adequate cause would exist reducing the homicide to manslaugh- cept the defendant's theory of the case, and ter.

he has some evidence to support it, it would [Ed. Note.-For_other cases, see Homicide, be, as said by appellant's counsel, a typical Cent. Dig. § 71; Dec. Dig. Om 47.]

manslaughter case. 6. HOMICIDE O 47 - PROVOCATION - MAN

[2] But the jury is the trier of facts under SLAUGHTER.

Where defendant had reason to believe our system of jurisprudence, and it is selthat his wife had committed adultery with de- dom an appellate court feels authorized to ceased, and that the latter was then endeavoring reverse a case solely on the ground of the into have such relations renewed, and it rendered his mind incapable of cool reflection, he would sufficiency of the evidence, no matter what be guilty only of manslaughter on 'killing de- the court's individual opinion of the evidence ceased.

might be, if the state's evidence is worthy of [Ed. Note.-For other cases, see Homicide, credit, and, if true, will support the verdict Cent. Dig. § 71; Dec. Dig. Om 47.]

rendered. 7. WITNESSES Ow269—CROSS-EXAMINATIONSCOPE.

[3] The most serious question is, and virWhere defendant claimed provocation aris- tually the only question as made by the recing from the adultery of his wife with the de ord: Did the court properly submit the law ceased, and the wife at the trial admitted such of manslaughter as applicable to the evidence relations, the state on her cross-examination could prove her statements to the county at adduced on this trial? No other theory or torney immediately after the homicide that she idea can be gathered from the reading of this and deceased had been guilty of no misconduct, record other than that appellant killed debut could not elicit from her that defendant kept ceased because of his belief that improper rehis gun downstairs and slept there, where he shot deceased from an upstairs window, as tend-lations existed between deceased and his (aping to show preconceived killing, as not proper pellant's) wife. It would be a different quescross-examination.

tion, though he believed this, as to whether [Ed. Note.-For other cases, see Witnesses, the killing would occur under circumstances Cent. Dig. $$ 949–954; Dec. Dig. Om 269.]

which would reduce the offense to manslaughAppeal from District Court, Ellis County; ter. One cannot meet the wrongdoer freF. L. Hawkins, Judge.

quently, and, while brooding over his wrongs, J. C. Mitchell was convicted of murder, deliberately determine to slay him, and then and he appeals. Reversed and remanded.

kill him from ambush and hope to have the Farrar & McRae, of Waxahachie, for ap- offense reduced to manslaughter. Under such pellant. Tom Whipple, Co. Atty., of Wax- circumstances it would be a premeditated ahachie, and C. C. McDonald, Asst. Atty. killing, and not a killing from an impulse of Gen., for the State.

the character defined by the manslaughter

statute created by the wrong done or sight of HARPER J. Appellant was convicted of the wrongdoer. We say that there can be no murder, and his punishment assessed at ten doubt that the killing was occasioned by the years' confinement in the state penitentiary. belief of appellant that deceased and appel

[1] Appellant insists that the evidence in lant's wife were guilty of improper relathis case would only support a verdict for tions, because the record suggests no other manslaughter, and the court erred in sub-thought or motive, and the state's witnesses mitting the issue of murder. In this we themselves testify to such a state of facts as, think he is in error, for, although it is appar- we think, shows this beyond a shadow of a ent from the whole record that appellant kill- doubt. Mr. Odom, a state's witness, says ed deceased because of his belief that im-J that appellant came to him to borrow money to send his wife away, and he loaned it to the matter. Appellant and his wife had him for that purpose. He says:

words over this incident. Appellant says he "Defendant told me that his wife and Sparks went on with his farming until the day of were, he thought, too thick, and he had just the homicide, when he says, not feeling well, could not stand it any longer if he could not get he was lying down upstairs, and upon lookshed of the woman, and asked me if I would ing out the window saw deceased again makloan him the money. I told him if it was agree- ing signs, as he thought, to his wife, when able for all parties and would save trouble I he grabbed his gun and shot. would."

The court instructed the jury: After the loan was made appellant gave "If you believe from the evidence that dethe money to his wife, and she left. Mor. fendant's wife and the deceased had been guilty Odom says that appellant talked to him of carnal intercourse with each other prior to twice, and he seemed greatly troubled about dence, beyond a reasonable doubt, that the de

the killing, and you further believe from the evithe conduct of his wife and deceased. He fendant had no knowledge thereof, and no inand all other witnesses for the state, who formation from which he could reasonably belived in the community, show that the con-ed that the mere fact of defendant's wife and

lieve such to be the case, then you are instructduct of deceased and appellant's wife was a the deceased having had carnal connection with matter of common talk; that, while no one each other would not of itself reduce the killing knew that any act of intercourse had occur- to manslaughter. red, yet her frequent visits to the store and Appellant filed written objections to this their conduct towards each other, had caus- paragraph of the charge, and we think the ed in the community generally an impression objections well taken. It is an incorrect that everything was not exactly right. Ap- proposition of law as applicable to the evipellant sent his wife away, but she went dence in this case. It is true that there is only to Dallas. Two days thereafter deceas- no positive testimony *that appellant knew ed also went to Dallas, and the evidence that an act or acts of intercourse had taken would show to a moral certainty that de place, yet the record is replete with evidence ceased and appellant's wife were in the same that he knew of facts and circumstances and room in a hotel in Dallas. The testimony of had information that would authorize him to the hotel clerk and Mrs. Brown, housekeeper believe, and he did believe, that improper reof the hotel, show this, and Mrs. Brown lations existed, and that they were guilty of made them leave the hotel. Appellant's wife improper conduct. There is nothing in evinow admits that she and deceased occupied dence to base a finding that appellant “had the same room in the hotel, and there had no information from which he could reasoncarnal intercourse; that she went home with ably believe such to be the case.” The recdeceased (his wife being absent) and spent ord, and the entire record, shows that appelthe night with him. It is true appellant was lant was in possession of information that not apprised of this as a fact until after he led him to believe, and he did believe, that killed deceased. After this appellant's wife improper relations existed, and the killing came back home. Appellant insisted on her took place because of such belief; and in this leaving, telling her that she would disgrace instance we think the record discloses that their children by her course of conduct with his belief was well founded. This paragraph deceased. It is not a case where appellant is instructed a conviction for a higher grade alone shown to have had that opinion, but of offense than manslaughter on grounds unall the witnesses from that community who authorized by law under the evidence. As testify show that such was the common we view this record, there is but one ground

A state's witness, Mr. Dillehay, who that would authorize a conviction for a highstayed at deceased's store while he was gone er grade of offense than manslaughter, and to Dallas, went to appellant and explained that is that appellant did not slay deceased to him he would not have stayed at the store at the first meeting; for while appellant had for deceased if he had known he was going this information the record shows he had to Dallas, where appellant's wife was stay- come in contact with deceased since receiving; that deceased misled him, and led him ing such information, and, unless at the time to believe he was only going to Waxahachie. of the homicide deceased did the acts appelThis in and of itself was enough to let ap- lant contends he did do, and from such conpellant know that his neighbors held the duct appellant was led to believe that desame opinion which he held. Appellant says ceased was endeavoring to get his wife to rethat after his wife came home from Dallas, new such relations, then a jury would be and insisted on staying over his protest, he authorized to find him guilty of murder. On finally agreed that she could do so if she this issue the state has evidence that appelwould not go to deceased's store again, and lant's contention is not correct, but the issue have no further communication with him. should be fairly presented in the charge Appellant then says that a few days after that, if deceased made the signs appellant his wife's return to her home he saw de- contends he did, and this conduct, viewed in ceased making signs to her and waving a the light of the information appellant had handkerchief at her. The testimony of the received prior to that time, led appellant to state's witness Odom shows that deceased believe it was an effort on the part of deTex.)

MITCHELL V. STATE

119

relations, and this conduct raised such de- Without taking up each paragraph of the gree of anger, rage, or resentment as to ren-charge on manslaughter and the objections der his mind incapable of cool reflection, he urged thereto, we simply say that appellant would only be guilty of manslaughter.

is correct in his contention that it does not [4] Adultery with the wife is declared by present the law as applicable to the facts of the statute to be adequate cause, and the this case. court should have so instructed the jury, and An act of adultery is shown, and yet the he erred in refusing to do so at appellant's court does not tell the jury that this, in request. The court, in defining “adequate law, is adequate cause. It may be the court cause,” instructed the jury:

did not do so because appellant does not tes“You are charged that insulting conduct of tify that he knew the act had occurred, but the person killed towards the wife of the party doing the killing is adequate cause; provided appellant says that after Dillehay had told the killing occurs immediately upon the hap- him about deceased going to Dallas as soon pening of the insulting conduct or so soon there- as his wife had gone there he believed it as after as the party killing may meet with the party killed after having learned of such in- firmly as if he had been present and witsulting conduct."

nessed it; and, while he may be said to have [5] Appellant introduced testimony tending

condoned the act by agreeing to continue to strongly to show that deceased and his wife live with her, yet, if the deceased subsehad been guilty of adultery, if it did not con- quently did acts which led him to believe, and clusively show that fact; yet the evidence he did believe, that deceased was endeavorand all the evidence would tend to show that ing to have the relations renewed, and he this was with the connivance and consent of killed him while he was engaged in such an his wife. As said in Garrett v. State, 36 act, the adequate cause of the adulterous act Tex. Cr. R. 230, 36 S. W. 454, the conduct would become a part and parcel of the act need not be such as to cause offense to the fe- when deceased was attempting to have the remale herself, and in a case like this, where it

lations renewed. As said before, there is is shown that the wife is equally at fault but one theory upon which the state would be with the deceased, it ought to be made clear entitled to a verdict for a graver offense than to the jury in the charge that, even though manslaughter, and that is that appellant had the wife takes no offense, and the conduct come in contact with deceased since the adulis no offense to her, yet, if the conduct is terous conduct, and he did not act at that such as to be an insult and outrage against time, and deceased at the time he was slain the husband, adequate cause would exist.

was not engaged in conduct which would lead [6] Appellant testifies to a course of con- appellant to believe that he was then endeavduct continuing from April until the homi- oring to renew such relations with his wife. cide, at one time appellant becoming so in- The case was not presented to the jury from censed at the conduct of deceased and his this standpoint, but a jury under the charge wife as to cause him to force his wife to was authorized to convict of murder, even leave home, and when she returned, although though they might have believed that it thus she agreed to cease all relations with the de- appeared to appellant. The court should tell ceased, yet, if what appellant says is true, the jury that adultery with the wife is adehe witnessed deceased attempting on two quate cause, and, if appellant did not know occasions to induce her to renew such rela- | of the adulterous relations, yet the conduct tions, the last time being when he killed him; of the parties was such as to lead him to beand if appellant believed their conduct had lieve that such relations existed, and deceasbeen improper, and he had condoned the ed was endeavoring at the time to have the past, yet if he was caused to believe, and in relations renewed, or it so appeared to defact did believe, that deceased was endeavor- fendant, and this rendered the mind of appeling at the time he shot to have the relations lant incapable of cool reflection, he would be renewed, this would be such insult to him, if guilty of only manslaughter. As appellant it caused anger or resentment, as would re- was found guilty of murder and given ten duce the offense to manslaughter. Even years in the penitentiary, and the law of though deceased had not attempted to renew manslaughter was not correctly applied to the relations, the matter would be real to the facts in the case, this will necessitate a him if he so believed from the acts of de- reversal of the judgment; and, as the case ceased, and the charge should be so framed will be reversed, we will call attention to as to so inform the jury. Jones v. State, 33 another matter. Tex. Cr. R. 492, 26 S. W. 1082, 47 Am. St. [7] As the wife of appellant was introducRep. 46; Messer v. State, 43 Tex. Cr. R. 97, ed as a witness, and she admitted the adul63 S. W. 643; Canister v. State, 46 Tex. Cr. terous relations, the state on cross-examinaR, 223, 79 S. W. 24; Bays v. State, 50 Tex. tion was and should have been permitted Cr. R. 551, 99 S. W. 561; Gillespie v. State, to prove her statements to the county attor53 Tex. Cr. R. 168, 109 S. W. 158. In Miles ney immediately after the homicide, when v. State, 18 Tex. App. 168, the court discuss- she told him that she and the deceased had es the principles underlying this character been guilty of no improper conduct. This of case, and without quoting therefrom we was legitimate cross-examination. But the

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