author: DAVIDSON, P. J. MORROW, J. PKENDEKGAST, ,T.

text:
    TAYLOR v. STATE.
    (No. 4365.)
    (Court of Criminal Appeals of Texas.
    May 23, 1917.)
    1. Homicide <&wkey;300(8), 309(4) — Trial — Instructions — Self-Defense" and MANSLAUGHTER.'
    In a prosecution for murder, evidence showing previous threats of deceased to kill defendant, the court should have charged the jury on the subject of manslaughter and self-defense viewed in the light of threats.
    2. Homicide <&wkey;157(3) — Admission of Evidence — Reconciliation.
    In a prosecution for murder, where the state had showed a reconciliation between deceased and defendant and its cessation, the state relying on the fact as tending to show that the killing was upon malice, the defendant could show the reasons therefor.
    3. Cbiminai, Law <&wkey;437 — Admission of Demonstrative Evidence — Homicide — Plat.
    A plat used in a prosecution for murder to show the location of the killing should correspond as nearly as possible with the real conditions and locations, at the time in question.
    4. Criminal Law <&wkey;404(4) — Admission of Demonstrative Evidence — Homicide — Clothing of Deceased.
    The clothing of deceased may be admitted in evidence in a prosecution for murder when serving useful purposes in the elucidation of disputed facts.
    5. Criminal Law &wkey;>1051 — Appeal—Preservation of Grounds of Review — Change of Venue.
    Assignment of error to change of venue will not be sustained, where appellant did not take exception when venue was changed. ,
    Prendergast, J., dissenting in part.
    Appeal from District Court, Bexar County; W. S. Anderson, Judge.
    E. B. Tajdor was convicted of murder, and appeals.
    Reversed and remanded.
    Ward & Bickett, of San Antonio, Hart & Patterson, of Austin, and Wilcox & Graves and A. S. Fisher, Jr., all of Georgetown, for appellant. W. O. Linden, of San Antonio, and E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

The verdict of the jury awarded appellant five years’ confinement in the penitentiary for murder.

The case was transferred from Travis to Williamson county, thence by the trial judge of his own motion on change of venue to Bexar county. After the conviction appellant raised the question of the invalidity of the order transferring the case from Williamson to Bexar county. This transfer order was based upon article 626, O. O. P., and article 3, § 45, of the Constitution. By the terms of the Constitution under the article supra power is vested in the court to change venue in civil and criminal cases, to be exercised only in such manner as shall be provided by law, and the Legislature shall pass laws for that purpose. In obedience to this mandate of the Constitution the Legislature enacted article 626, supra. In this article authority is granted district judges to change venue of their own motion of cases to any county in their own or an adjoining district. The statute is express in its limitation of this power, and confines it, as above stated, to a county in his own district or to some county in an adjoining district. There are other statutes making provisions for the transfer of cases on change of venue, but they do not apply here, and are unnecessary to be noticed. By the provisions of the Constitution it will be seen that it is not self-executing; therefore it became necessary for the Legislature to pass suitable laws and provide necessary rules of procedure to carry into effect such provisions of the Constitution. Outside of the granted authority under article 626, supra, the judge has not been clothed with authority to change venue of his own motion. Outside of the provisions of that article the! judge cannot so act. His orders, decrees, and judgments would not be authorized, but would be ultra vires and void. The Legislature having exclusive authority to provide for such changes of venue and the procedure to be followed, consequently it necessarily follows that the courts must confine their action within the given procedure and prescribed limitations. It may be well enough to state here that within the limitation set forth the! courts may exercise proper legal discretion, but discretion ends within the terms of the power granted. Discretion is never arbitrary, but must be legal and judicial, and not to be exercised outside! of, but always within, legal' bounds. This statute constitutes the authority and boundaries of judicial action and discretion. Beyond its terms a judge has no right to act, and there is to him confided no discretion outside of the provisions of the statute. Hipp v. Bizzle, 3 Tex. 21; Watts v. Holland, 56 Tex. 54; article 626, C. C. P.; article 3, § 45, of the Constitution; Ex parte Chase, 43 Ala. 303-310; Gibbons v. Ogden, 9 Wheaton, at page 66, 6 L. Ed. 23; State v. Cummings, 36 Mo. 263, 278; 3 Words and Phrases, pp. 2096-2098; Norris v. Clinkscales, 47 S. C. 488, 25 S. E. 797, 801.

Where authority ends the power to act ceases. Discretion to act under a giveta state of case must be within the controlling grant and therefore subordinate to the legislative authority. It can never rise superior to nor subordinate to legislative! grant of power. That power is the supreme test. If this be not true, the discretion, if it could be so termed, would not depend upon the granted authority. It would be superior to legislation and the Constitution, and would operate as an assumption of original power. To so hold would be destructive of governmental authority, and would make such assumption of authority a justification for the destruction of sovereignty. Our Constitution provides in article 1, § 10, for a trial by an impartial jury. This is held so sacred that it cannot be waived. Article 1, § 10, Const. Article 1, § 29, of the Constitution expressly provides that all laws in contravention of the Bill of Rights shall be null and void. A change of venue is a guaranty to the accused of a fair trial by an impartial jury. This is practically if not the main basis underlying both the Constitution and legislation for change of venue. Randle v. State, 34 Tex. Cr. R. 58. 28 S. W. 953. See, also, the Statutes.

This is not a question of venue, but is entirely one relating to a change of venue. Its whole basis is bottomed upon the theory that where venue is there may exist a reason for changing that venue. The Constitution was ordained and the statute enacted to get away from the influences and the reasons operating against a fair trial in the county of venue. If venue and change of venue mean the same thing, the statute which provides for a change of venue would be practically useless. Thdre cannot exist a possibility for changing venue until there has been venue fixed in some appropriate jurisdiction from which the case is sought to be transferred.

Yenue is necessary to the exercise of judicial authority. The term “change of venue” necessarily implies that the venue has been previously fixed in some jurisdiction. So it ought to be cldarly seen that the jurisdiction of the court in Bexar county did not and could not attach except by a change of venue, and under this record only by reason of the act of the judge under the provisions of article 626, supra. Bexar county did not and could not have original jurisdiction. The offense charged did not occur in that county, and the deceased did not die in that county; therefore Bexar county could not obtain or exercise jurisdiction by reason of venue. G. C. P. arts. 243, 258. Therefore the change of venue is all there is or that can be claimed for the exercise of jurisdiction by the court in Bexar county, and it, therefore, becomes a jurisdictional question.

There are three questions, as a general proposition, of jurisdiction: First, of the person; second, of the subject-matter; and, third, the power of the court to render the particular judgment it does render. Without a concurrence of these there can be no legal authority in the court to try the case or render a judgment. Ex parte Degener, 30 Tex. App. 566, 17 S. W. 1111. For collation of cases see 5 Rose Notes, p. 863. That case has been followed in a great number of cases and is now the settled law, 'not only by authority of the decisions, but by reason of its inherent strength and correctness. As article 626, supra, has defined and determined the! authority of the court, so that authority must remain and can only he exercised. Within its terms the judge may act; outside of those terms he cannot act, and any order outside of that statute he may . enter would be void. That the Legislature could have provided wider latitude of power is no reply to their failure or refusal so to do. Venue in this character of case is jurisdictional. The judge cannot exercise authority to try thd case except by reason of the change of venue. Outside of that he did not acquire, nor could he exercise, jurisdiction. He had to loot alone to the order of the district judge of Williamson county for his authority to act. Venue did not and could not attach in this case by any act of the grand jury of Bdxar county returning an indictment against appellant.

There is some contention that defendant waived his legal rights by not interposing objection in Williamson county when the order of transfer was made. It is not necessary to discuss that question herd, in view of what we have said. If the order was void, there was nothing to waive. The court was without authority to change the venue to Bexar county district court, and that court was without authority to render the judgment that was rendered. Ex parte Degener, 30 Tex. App. 566, 17 S. W. 1111. If the court had not authority, to make the order transferring the case, it brought nothing, and could bring nothing, suggesting the question of waiver on the^ part of defendant, and could confer no jurisdiction upon the Bexar county district court. Appellant’s failure to except to a void order is not a waiver, and could not make that order a valid judgment. While not expressly deciding this particular question, as it was not raised, our courts have recognized the limit of judicial authority and discretion as confined within the terms of this statute when the order is made by the judge of his own motion. For compilation of cases, see Harris’ Ann. Constitution, p. 291, note 4. If there is an exception to the above statement, it is found in Grooms v. State, 40 Tex. Cr. R. 327, 50 S. W. 370. That case, when looked at in the light of its statements, is not an exception, but recognizes the rule stated by the writer. That case may be better stated by quoting the language used by Judge Henderson. The venue of the case was changed by consent and agreement from Atascosa to Travis county. It will be noticed that Travis county had authority to entertain jurisdiction or venue of land forgery cases. The Grooms Case was a land forgery. Atascosa county had jurisdiction to try the offense as well under the statute. Quoting from that opinion Judge Henderson said:

“Article 553, supra, authorizes prosecutions for forgery of land titles to be prosecuted also in Travis county; that is Travis county, as well as the county where the land is situated has original jurisdiction. But the complaint here is that while the prosecution could have originated in Travis county, yet there was no authority to transfer the venue by agreement from Atascosa to Travis county; it being insisted in this connection that consent will not confer jurisdiction. Inasmuch as Travis county has original jurisdiction, it occurs to us that it was competent to transfer the jurisdiction from Atascosa to Travis county. If Travis county, under no circumstances, could entertain jurisdiction of the offense, then consent would not give jurisdiction.”

In that case Travis and Atascosa counties had jurisdiction or venue. In this case under no possible circumstances could Bexar county have jurisdiction originally, and could only acquire it, if at all, by transfer on change of venue. There is a broad distinguishing line drawn by Judge Henderson between the two cases. There is also another proposition that may be involved; that is, the party consented in that case, but Judge Henderson excludes the idea that would give jurisdiction by stating, if Travis county could in no event have original jurisdiction, then consent would not confer it. This case and that case is well distinguishable upon the theory of consent. In this case there was no consent, but a waiver is inferred and this inferred from silence when the order was made transferring on change of venue. The question involved is not really discussed in that case, and is not in point or authority here except as above stated. There is some reasoning indulged by that opinion as to why the judge acted independent of the agreement to change the venue, which the opinion states to be supposition. The only reason shown or given -was the agreement of parties. This was the only given reason for the judge’s action in changing the venue from one county having jurisdiction to another county authorized to exercise jurisdiction. The record in that case does not show the court changed the venue of his own motion. I do not believe that the Grooms Case is authority to support the ruling of the trial judge in transferring the case from Williamson to Bexar county. In this case it was transferred by the court of its own motion. In the Grooms Case it was transferred by consent, and to a county that could have had original jurisdiction. I do not care to notice this matter further. It seems that in all of those eases the court changed the venue within the terms and requirements of article 026, supra, either to a county in the district presided over by the judge making the transfer, or to some county in an adjoining district. In either event he is clothed with authority to make the order. In such ease it would be necessary to reserve exception because the discretion of the transferring judge was legally involved. In such state of case he may exercise judicial discretion, but this discretion must be judicial and within the terms of the law. The order of transfer to Bexar county was not in conformity with the provisions of the statute or within the power of the transferring judge. There are several adjoining districts to that in which Williamson county is situate, but Bexar county is not in one of those districts. We hold, therefore, that the court was without authority to make the order of his own motion under the provisions of the statute. Waiver was not in the ease, and appellant lost nothing by failing to except to the action of the court in Williamson county.

Error is assigned on the failure of the court to charge on manslaughter and self-defense viewed in the light of threats. Briefly, the facts show that appellant and deceased were first cousins and had been raised together, and were on very friendly terms until about three years prior to the homicide, when deceased began systematic attentions to appellant’s wife. He became so persistent that she complained finally to appellant, her husband. This brought trouble at once between them. Appellant told deceased that if he did not desist such attentions, he would fill him with lead, or words to that effect. Deceased promised not to visit the home or wife of appellant any more, nor to pay further attention to her. Deceased made threats against the life of appellant in his absence and in his presence. These were shown upon the trial. On one occasion in a hotel in the city of Austin the deceased went to the room occupied by appellant and had a difficulty with him, having a knife in his hand at the time. It became crucial, and appellant picked up a chair to defend himself, and deceased went away;%remarking as he left that next time he would be ready for him. Another witness testified that deceased made threats against the life of appellant, which were conveyed to appellant not a great while before the homicide. Appellant testified that some time after the difficulty about the wife of appellant they again began speaking. This continued for a while, when deceased ceased speaking. It was after this that deceased made a threat to the witness Childress: It is in evidence that both deceased and appellant drank, and sometimes to excess. During the day preceding the homicide at night all the parties were in the city of Austin, they living some 12 or 15 miles east from that city near the little village called Webberville. Appellant and a friend left the city in an automobile belonging to appellant in the direction of his home, he diverting his course here and there to collect money from his patrons, people in whose families he practiced medicine. This carried him varying distances from the main road. About dark he came into the road leading to Webberville, not far from a store owned by the witness Littlepage. In the meantime deceased, who was going home near Webberville in a one-horse buggy, stopped something like 75 yards before reaching the store. At this point appellant passed in his car, and it is shown by some of the testimony that the car struck the left hind wheel of the buggy. The witnesses heard this, and so testified. Appellant said he did not know he had struck the buggy; that he saw it, but did not know who it belonged to, and paid no attention to it; that his car was making a great deal of noise by reason of the fact the left front tire was punctured and was running on a flat tire, and, the road being graveled, it thereby caused considerable noise, preventing him hearing anything the party at the buggy may have said. Witnesses show that deceased cursed those in the car as sons of a bitch for trying to run over or kill him. They differ as to the expression. Appellant’s car passed the store where there were several people, but did not stop. The lamps of the car were lighted. It was running slowly, 8 or 10 miles an hour, and making considerable noise by reason of running on a flat tire. They went about 300 yards or such matter beyond the store when appellant discovered the car was on fire. He stopped to put out the fire. In the meantime deceased had re.ached Little-page’s store, and was very angry about the way he had been treated with reference to passing his buggy, and said if he had a pistol he would kill the sons of a bitch in the car. Littlepage and others examined the buggy and found no injury about it. Deceased also said he could whip both of them. Littlepage undertook to detain deceased at his store until the auto should leave, but was unsuccessful. Finding that deceased was going to the auto, or in that direction, he asked his son, and perhaps others, to go to the car to prevent a difficulty. He said deceased was the maddest man he ever saw, and in his condition, and from the threats he made and language used, he was anticipating a difficulty. However, deceased got in his buggy and went on to where the auto was, and the difficulty ensued, and appellant killed him. It was at night. The witnesses differ about the relation and situation of the parties at the time. Some of the testimony shows deceased’s buggy passed to the right of the car, and the shooting occurred. Some of the testimony shows that deceased was out of the buggy at the time the shooting occurred, and was on the left-hand side, where appellant would sit when the car was moving. Appellant testified deceased was very angry when he came up, and asked, with epithets and opprobrious language in ratber an aggravated form, wby appellant ran over bim, or words to that effect, and was approaching him rapidly. He jerked his pistol and fired three shots. Deceased was on the ground, and some of the witnesses say he ran back toward the store during or as the shooting ceased, leaving his buggy at or near the auto. Appellant was asked by the state if he saw deceased make any demonstration as if to execute his threat, thereby seeking to show that deceased did not make a visible demonstration. The answer of appellant was that he did not see any; that he was not noticing; that he did not have time to see what deceased was doing; and that under the circumstances he thought his life was in danger, and he expected deceased to kill him as he had said on the first meeting, and this idea was enhanced if deceased was drinking, and under such circumstances one of them would be shot; that he did not stop to look to see anything, except in the dark his adversary was. approaching, cursing and abusing him In the manner and form indicated by the language-and as shown by the testimony, and, thinking his life was in danger from the circumstances, he immediately fired. Under this state of the record the court should have given charges upon the law of manslaughter as well as self-defense viewed from the standpoint of threats.

After the trouble between the parties with reference to the conduct of deceased towards appellant’s wife an elder brother of deceased, Baylor Burleson, brought about a partial reconciliation between them, and that this accounted for their speaking for some time. Baylor Burleson died. Deceased then refused further to recognize appellant. The court excluded this testimony of reconciliation and reasons for it. The previous trouble between them and failure to speak was introduced. The state shows that they later were speaking for a while, and that this ceased. The state having proved this, it was proper to show the reasons of their reconciliation and its cessation. The state was relying on the fact that they did speak for a while after the insulting conduct to eliminate manslaughter, or at least as a fact tending to show that all of that matter had passed, and the killing was upon malice. Having introduced this testimony, it was proper for appellant to meet and explain how and why this occurred.

Upon another trial if it is thought necessary or advisable to introduce a plat of the scene and location of the killing, that plat should be more in accord with the exact physical facts and conditions than that produced on this trial in the court below. The plat ought to correspond as nearly as is possible with the real conditions and locations at the time and scene of the tragedy.

Another objection was raised to the introduction or admission before the jury of the clothes of deceased. As the matter is presented by the bill of exceptions, we are not clear that the court was in error. The matter was in doubt as to where one of the bullets entered, and it was claimed that the introduction of the clothes would show. It was an issue as to whether this bullet entered from the front or the rear. Witnesses somewhat differed on the question. Dr. Wooten testified that it entered from the front and not the rear. It was thought or suggested by state’s counsel that the clothes would show. There was also quite a discussion in the testimony as to whether a certain hole in the front of the shirt was the result of a tear or shot. If the hole was caused by a bullet, it would have shown entrance in front. The other two wounds, as we understand the testimony, would indicate that they were made neither from the front nor the rear, but from the side. Upon another trial this matter with reference to the wounds may bo made more clear and distinct. The rule is that clothing may be admitted when they serve useful purposes in the elucidation of disputed facts. We are not prepared to say under the facts of this case as shown that the admission of the clothes was error.

For the reasons indicated, this judgment will be reversed, and the cause remanded.

PRENDERGAST, J., dissents.

MORROW, J.

The effect of appellant’s contention, under his assignment relating to the change of venue, is that the district court in Bexar county, in which his case was tried, was not a court of competent jurisdiction of the subject-matter, and that any judgment it might render either acquitting or convicting appellant would be void. If the court was without jurisdiction, then it could render no judgment binding either upon the state or the defendant. White’s C. C. P., § 539, p. 367; McLain v. State, 31 Tex. Cr. R. 558, 21 S. W. 365; McNeil v. State, 29 Tex. App. 48, 14 S. W. 393; Leach v. State, 36 Tex. Cr. R. 248, 36 S. W. 471.

There is no provision in the Constitution of this state fixing the venue of criminal cases, and the provision in the Constitution pf the United States concerning venue does not control prosecution of offenses against the laws of a state. Cox v. State, 8 Tex. App. 254, 34 Am. Rep. 746.

Venue in criminal cases, that is, the place or locality in which prosecutions are to begin, is provided in Vernon’s Code of Criminal Procedure, ch. 2, p. 123, and under that statute the prosecution for murder may begin in the county where the injury is inflicted, or that in which death occurs. Articles 241-258.

Generally speaking, there is a distinction between jurisdiction of the subject-matter and venue. Article 5, § 8, of the Constitution says:

“The district court shall have original jurisdiction in all criminal cases of the grade of felony.”

Section 45, art. 3, is as follows:

“The power to change the venue in civil and criminal cases shall be vested in the courts, to be exercised in such manner as shall be provided by law, and the Legislature shall pass laws for that purpose.”

The laws passed for this purpose are embodied in arts. 626 to 641 inclusive, Vernon’s O. O. P. Article 626 gives the district judge power, on his own motion, to change the venue to any county in 1ns own or an adjoining district. Article 634 provides:

“The order of the judge granting or refusing a change of venue shall not be revised upon appeal, unless the facts upon which the same was based are presented in a bill of exceptions prepared, signed, approved and filed at the term of court at which such order was made.”

Other provisions of the statute pertain to the manner of making application for change of venue and its controversion, and state various other circumstances under which change of venue may be granted upon the application of the parties. Article 629 is as follows:

“When an unsuccessful effort has been once made in any county to procure a jury for the trial of a felony and all reasonable moans have been used, if it be made to appear to the court by the written affidavit of the attorney for the state, or any other credible person, that no jury can probably be had in that county, the court may order a change of venue, and cause the reasons therefor to be placed upon the minutes of the proceedings.”

The general rule in this state often declared by the civil courts is that in civil cases the order of the court changing the venue will not be reviewed in the absence of exception taken at the time and duly preserved, and this rule has been applied in criminal cases in a number of jurisdictions as illustrated by the following cases: State v. Dodson, 72 Mo. 284; State v. Knight, 61 Mo. 373; State v. Potter, 16 Kan. 80; Leyner v. State, 8 Ind. 490; Gardner v. People, 3 Scam. (4 Ill.) 83; Brennan v. People, 15 Ill. 536; Kinkeade v. State, 45 Ark. 536; Hawes v. State, 88 Ala. 37, 7 South. 302; Éllick v. State, 1 Swan (Tenn.) 325.

It is insisted, however, that article 626, supra, providing that the district judge may, on his own motion, order a change of venue to any county in his own or an adjoining district, is a limitation upon the power to change the venue given the courts by section 45, art. 3, of the Constitution, and that, failing to exercise the power in the manner prescribed by article 626, it cannot exercise it at all, that an attempt to exercise it in any other manner would be void, and that the judgment rendered by the court to which it was transferred would be void, and consequently reviewable in this court, although consented to originally by the parties, or done without objection on their part. The only case in this state that has come to our attention, in which this statute, article 626, was considered, is Grooms v. State, 40 Tex. Or. E. 327, 50 S. W. 370. The facts are not identical with those in this record, but are sufficiently similar to justify a reference to the case. In that case there was a prosecution for forgery of a land title. The indictment was filed in Atascosa county where the offense was committed, and the case transferred by consent to Travis county, which was not in the same or an adjoining district. There was a statute, however, providing that the prosecution could have been begun in Travis county. The matter is disposed of by this court in the following language:

“But this article authorizes the change to be made to any county in his own or an adjacent district. Travis county is not in the district adjoining the district in which Atascosa county is situated. But article 619, however, authorizes that if it is shown in the application for a change of venue, or otherwise, all the counties adjoining that in which the prosecution is pending are subject to some valid objection, the cause may be removed to such county as the court may think proper. In support of the change of venue, it will be presumed that the court acted properly in making the change to Travis county, and that the court was informed by some means that the same reasons existed in the adjoining counties that existed in Atascosa county for the change of venue; and in such case it was authorized to change the venue to any other county as it might think proper.”

There is a statement in the opinion that consent will not give jurisdiction. The only cases referred to are those in the brief filed in that ease (page 323) and these are civil cases holding that jurisdiction of subject-matter cannot be acquired by consent. Not so with venue. Enc. of Pleading & Practice, vol. 22, p. 814.

The Constitution having fixed no venue for the trial of felonies, and having expressly vested the power to change the venue in the courts, and specifically declares that the district courts have jurisdiction to try all felonies, and the district court of Williamson county having ordered this cause transferred to the district court in Bexar county, and the appellant having made no objection either to the transfer of the cause or the trial of it, I do not think that the district court of Bexar county was without jurisdiction of the subject-matter so as to render its judgment void. I do not, therefore, believe that the assignment raising this question should be sustained. I do think, however, that there are other assignments in the record discussed in the opinion of the presiding judge which should result in the reversal and remanding of the cause.

PKENDEKGAST, ,T.

(dissenting). This case should be affirmed, not reversed. I am clearly of the opinion that under the Constitution and Statutes the court had the power and authority to change the venue to Bexar county. But even if changed erroneously, appellant clearly waived such error by not excepting by proper bill when the venue was changed.
      <gss>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: DAVIDSON, P. J. PRENDERGAST, J.

license: Public Domain

text:
    HUEY v. STATE.
    (No. 4429.)
    (Court of Criminal Appeals of Texas.
    April 18, 1917.
    On Motion for Rehearing, June 27, 1917.
    Dissenting Opinion July 25, 1917.)
    1. Criminal Law &wkey;>404(4) — Demonstrative Evidence — Clothing.
    The bloody clothes of deceased are admissible in evidence only when they tend to solve some disputed fact or explain issues about which there is doubt.
    2. Criminal Law <&wkey;417(2) — Evidence—Declarations in Defendant's Absence.
    T. cannot testify to occurrences at and before the homicide on the strength of what V/. told T. after the homicide and in defendant’s absence.
    On Motion for Rehearing.
    8. Criminal Law <&wkey;404(4) — Demonstrative Evidence — Clothing.
    There being no question on the location of deceased’s wound, his bloody clothing is not admissible thereon.
    4. Witnesses <@^>414(1) — Corroboration— Competency op Evidence.
    - W. cannot be corroborated as to what occurred at or before the homicide as to who made certain tracks by testimony of T. that W. after the homicide, and in defendant’s absence, told him such things.
    5. Criminal Law &wkey;387 — Evidence—Negative Testimony.
    To meet testimony of defendant that deceased cursed and swore at him, testimony that deceased had a year before joined the church is inadmissible.
    Premdergast, J., dissenting.
    Appeal from District Court, Cooke County; C. E. Spencer, Judge.
    I. A. Huey was convicted, and appeals.
    Reversed and remanded.
    Culp, Culp & Culp, of Gainesville, for appellant.' Garnett & Garnett, of Gainesville, and E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of murder, his punishment being assessed at 99 years’ confinement in the penitentiary.

It is unnecessary, we think, to give anything like a statement of the facts. The state relied largely upon the testimony of Williams to the effect that when he walked to where the parties were engaged in the difficulty he heard them talking. His testimony and that of defendant is at variance as to who began the conversation that finally led to the trouble. The great preponderance of the testimony shows that the parties were friendly up to the time of the killing, and that appellant was a renter of the deceased. One of the witnesses testified to the effect that appellant expressed some dissatisfaction because deceased did not accompany him to the town of St. Joe on Saturday to assist him in raising some money previous to the homicide on Monday. Deceased was building a fence separating the pasture from the farm land. Appellant and other hands had been assisting him. It is in evidence that deceased, the landlord, was to pasture the stock of his tenants free, among others the stock of appellant. Appellant was asked if he would further assist in building the fence on Monday, to which he assented, and went to the place of the homicide for that purpose, taking a single-barrel shotgun. He accounts for taking the shotgun by stating that he would find squirrels and rabbits in passing through some timbered land, and would use the gun for the purpose of killing these. When he reached the place of the homicide he laid it down a few steps from the fence in some young corn in which was also growing some Johnson grass. This was about 8 to 12 steps from the fence on the south side. Deceased drove up in his wagon on the north side of the fence. A conversation occurred in which deceased informed appellant that he would have to pay 50 cents a month pasturage on his stock or keep them out of the pasture. Appellant reminded him of the fact that the contract was that he was to have pasturage free. A wordy altercation became a little incisive. Deceased jumped out of his wagon with a double-edged axe. Appellant says he got the axe out of the wagon; while Williams says he picked it up from the ground. He drew the axe in a striking attitude, and appellant stepped back and got his . gun and approached within a few steps of deceased. Williams says at this time deceased had his axe handle in his hand with the axe part of it down by his leg or side, while appellant says he had it drawn back over his shoulder in a striking attitude. He fired the gun from down by his side without raising it to his shoulder, the load of shot taking effect in appellant’s abdomen about 2 or 2y2 inches to the right of the middle line of the stomach, which resulted fatally. The axe was found about 2 or 3 feet from deceased’s body; some of the testimony showing it was near his feet. Appellant and Williams both left. Appellant surrendered to the officers, and Williams went around and secured some nearby neighbors and returned to the scene of the tragedy. It seems that the son of deceased had been to the body before these parties arrived. Two other young men were also present. The wound was described as having entered as before stated, going straight in and about an inch to an inch and a half in diameter. The gun was loaded with No. 6 shot. This would indicate that the muzzle of the gun was not very far distant from deceased when it was fired. There was no controversy or question as to the wound and that it entered from the front and at the point designated. This did not become an issue, and there was no other evidence as to the place of the wound. Appellant made no contention that the wound entered otherwise than in .the front, and his contention was further that deceased was facing him at the time with an axe drawn hack above and over his shoulder. The testimony describing tbe wounds Is stated because of a bill of exceptions reserved to tbe action of tbe court permitting tbe exhibition of the bloody shirt and pants to tbe jury while tbe widow of the deceased was on tbe witness stand. Tbe bill shows that she was very much affected when tbe clothes were shown her, and while describing them was crying. Exception was reserved to this, and, we think, correctly.

Where the production of the bloody clothes tends to solve any disputed fact or explain issues about which there was doubt, they should go to the jury; otherwise they should be excluded. Under these decisions we are of opinion that the court was in error with reference to this testimony, and it comes within the rule laid down in Cole v. State, 45 Tex. Cr. R. 225, 75 S. W. 527, followed in Christian v. State, 46 Tex. Cr. R. 50, 79 S. W. 562; Crenshaw v. State, 48 Tex. Cr. R. 80, 85 S. W. 1147; Lucas v. State, 50 Tex. Cr. R. 220, 95 S. W. 1055. These are a sufficient number of cases to show the rule j as applicable to this bill of exceptions and the action of the court.

There are two other bills practically to the same effect reserved to the introduction of the testimony of the two witnesses who went to the scene of the homicide with Williams. They cover each about a couple of pages of the transcript, setting out conversations and acts occurring between the parties at the scene of the tragedy some time after the shooting, but during the same day. These matters were things that were said by Williams and the conversation between himself and these witnesses as to w1hat occurred at the time of the homicide, the location of the parties, and various things that he says he saw at the time, to all of which exceptions were reserved for various and sundry reasons. We are of opinion this testimony was not admissible. These were acts, conversations, and declarations made in the absence of the defendant among third parties, and in no way binding upon appellant. It is useless, we think, to go into a discussion of this matter. There are quite a number of cases we might cite, among others Gonzales v. State, 16 Tex. App. 152; Felder v. State, 23 Tex. App. 477, 5 S. W. 145, 59 Am. Rep. 777; Liner v. State, 70 Tex. Cr. R. 75, 156 S. W. 211; Streight v. State, 62 Tex. Cr. R. 453, 138 S. W. 742; Holt v. State, 57 Tex. Cr. R. 432, 125 S. W. 45. The rule is so well recognized it is unnecessary to cite authorities. This illegal testimony may have had, and doubtless did have, material effect upon the minds of the jury in their finding the amount of punishment.

The court charged upon the issue of manslaughter. There was a sudden quarrel, starting about not very important matters. The parties became angered and minds inflamed. The deceased made the first demonstration with the axe. The testimony in any event was illegal and improper. The assessment of 99 years in the penitentiary may have been induced by this testimony by giving it undue prominence and weight.

The judgment is reversed, and the cause remanded.

On Motion for Rehearing.

In the state’s motion for rehearing the original opinion is criticized. Among other things, the following quotation is made fro as the opinion as being erroneous, to wit:

“A wordy altercation became a little incisive. Deceased jumped out of 1ns wagon with a double-edged axe. Appellant says he got the axe out of the wagon; while Williams says he picked it up from the ground.”

That a wordy altercation incisive in nature occurred is made evident by the record. It is unnecessary to mention that matter further. The opinion is correct in stating that deceased jumped out of the wagon. This is testified by appellant, while Williams, the other eyewitness, stated that deceased got out of the wagon by first stepping on the brake and thence on the ground. It was Williams who said that the deceased got the axe out of the wagon, and not appellant. Appellant stated that after deceased jumped from the wagon he went a few feet and picked up the axe from the ground. Whatever error in the statement from the record is made in the opinion is hereby corrected. The facts there stated are correct, except appellant was made to testify to things that Williams testified and Williams to matters of which appellant testified. Just how this occurred the writer does not know. Doubtless in dictating he placed the parties in that attitude, but that is a matter of -small moment.

Another expression in the opinion is criticized by the state in its motion for rehearing. This extract is made from the motion for rehearing:

“The court, on the first page of its opinion in this cause, says: ‘He [appellant] accounts for taking the shotgun by stating' that he would find squirrels and rabbits in passing, and would use the gun for the purpose of killing tírese.’ The above statement of appellant shows that he was , not hunting for squirrels, and the only place in the entire record where rabbits are mentioned is in the court’s opinion.”

Through some inadvertence state’s counsel overlooked the testimony of Mrs. Huey. She says:

“It was not unusual for him to take that gun with him; he carried it every once in awhile. He would carry the gun with him sometimes to kill squirrels or young rabbits. In going down there to his work he would go through a branch or bottom and through some timber. He was in the habit of killing squirrels and young rabbits down there.”

The criticism of the state’s motion is not well taken.

The opinion is further criticized as being incorrect in holding that the bloody clothes of the deceased were inadmissible. In the light of this motion we have again carefully reviewed that question, and are the more fully convinced we were not in error. Bloody clothing may or may not be admissible, and. tbis depends upen whether they serve some useful purpose in the elucidation of some issue in the ease, or tend to solve some question about which there may be some issue; but their admission is to be justified by some reason authorizing their consideration in the solution of doubtful propositions or in elucidating some question arising on the trial. Nor can the state’s present contention be sustained; that is, that the clothes were admitted to meet and contradict appellant’s evidence and show there were no shot holes in the shirt sleeves of deceased. Such contention was not made on the trial by any testimony called to our attention. The court did not admit the clothes upon the ground that they had any relation to the shirt sleeves or holes in the shirt sleeves. The court says he admitted the clothes for the following reason: To show the exact place whore the deceased was shot, there being only one eyewitness, and he was 15 to 16 feet away at the head of deceased’s mule team, and in the opinion of the court it was necessary on this issue. There was nothing in the case before the jury at the time the clothes were admitted upon which to contradict appellant. It was while the widow of the deceased was on the stand testifying and through her that these clothes were admitted. The bill is quite lengthy and unnecessary to repeat. She was the second witness placed on the stand by the state in making out its case originally. The defendant had not testified, and there was nothing to contradict so far as he was concerned. The oourt, it would seem from his qualification, admitted the clothes only as .bearing upon the location of the wound. There was no question about the location of the wound, and none raised on the trial. Deceased was shot in front with a shotgun at close range, because the shot did not scatter. The wound went in about 2 or 2% inches on the right side from medial line of the deceased’s body and through the waistband of his pants. This was the only wound on him. There was but one shot fired. None of the shot entering the body-went through. There could be no issue on the question as to the location of the wound on the body of deceased. The clothes were not aumitted to contradict appellant, because appellant had not testified. Tire bill with reference to this matter is rather lengthy, and it is deemed unnecessary to embody it in the opinion.

It is also contended the opinion was wrong in holding that some of the matters which occurred between Dike Williams and J. M. Taylor, as shown by the bill of exceptions, when Taylor was taken by Williams to the scene of the tragedy, were inadmissible. The writer has gone over this matter again in the light of what is said in the motion for rehearing, and the original conclusion, in the mind of the writer, in the main, is correct. Uoncededly evidence of physical facts surrounding the scene of the homicide may be admissible; but the physical facts are one thing, and a conversation between the parties with reference to incidents and matters of that sort that are in controversy is quite a different thing. Williams took Taylor and others to the scene of the homicide and pointed out places which he said the parties occupied and their movements at the time and place of the homicide. That Williams could testify to this, or that he could take parties to the point of the homicide and show, in a general way, the physical facts, or point them out, may be conceded; but when the state undertakes to show the statements and conversations of Williams and Taylor as to Williams’ view of the matters and occurrences, we are of opinion the state went farther than was authorized. Illustrative of this there was a serious contention on the trial as to the acts and conduct of the deceased and of the defendant. Williams testified, as did appellant, that appellant had his gun lying some steps away in the edge of some young growing corn, and perhaps where there was some Johnson grass. Williams stated at a certain point during the trouble appellant threw down the hammer he had and went for his gun which was lying off some distance, picked it up, and in a half-raised or stooping position shot without taking aim; at least without placing it to his shoulder. There was a contention between appellant’s testimony and Williams’ as to the distance to the gun and the location of the gun. Williams says at the time appellant got the gun he came back halfway from where he picked it up to where he discharged it, and that he never straightened up after picking up the gun. That he was close to the deceased is evidenced by the fact that the shot went almost in a solid load without scattering into the body of deceased about 2% inches from the middle of the front or abdomen, entering through the waistband of his pants. Taylor was permitted to testify that, when he went to the scene of the tragedy with Williams, Williams pointed out a place where he said the gun was located, and he (Taylor), in checking up this matter, stepped 12 steps to where Williams said the gun had been located and 12 steps back. There was no evidence outside of the statement of Williams that this was the location of the gun, and there were no physical facts on the ground to show that the gun had been thus located. Taylor states that there was one set of tracks going to where Williams said the gun was and one set of tracks going back. The entire evidence for the state and the defendant, through Williams and appellant, contradicts this. Appellant says he carried the gun down there with him thinking he would find, squirrels; that he had no intention of having a difficulty with deceased, and placed the gun 6 or 8 steps from the fence on which they had been working, and went to the fence with a view of going to work. Of course, in carrying the gun to the place it was located there must have been one set of tracks made going and another coming away. The gun did not get there of itself. It was carried there by appellant. Williams says appellant went to the place where the gun was and picked it up and returned about halfway and shot. Erran any angle of, view there is no possibility of escaping the fact that there were two sets of tracks, the first made when appellant carried the gun to the place where it was placed and returned, and the other when he went for it and returned for the purpose of killing or shooting the deceased. There was nothing to indicate that the tracks pointed out by Williams were the tracks of appellant, except his statement, and that was made to Taylor. This was a matter occurring between third parties, and Williams could not thus corroborate himself. That Williams could testify that the gun was located at a certain point, and that he saw the actions of appellant in going to and coming from the gun, and the use of it, would be original testimony, but that he could take Taylor and relate these facts to him and have Taylor come in and testify about them from Williams’ statement is a different proposition. The writer mentions this in giving his reason why some of the testimony through the witness Taylor was not admissible. The acts and declarations and conversations between Taylor and Williams about these matters are not evidence. It is a conversation and matters occurring between third parties. That tracks upon the ground leading to or coming from a certain place may be introducible is not the question, but when it is sought to connect the defendant with those facts something more is necessary. The man who testifies himself that certain parties made these tracks cannot corroborate himself or be corroborated by his statement to other parties as original testimony, and the third party will not be permitted to detail the statement as to the witness’ version of the matters as they occurred. If appellant made the tracks testified by Taylor, it is a matter of evidence, but the statements of Williams to Taylor that appellant made these tracks, in the judgment of the writer, are not admissible.

There is another matter about which Taylor testified to which exception was reserved. Appellant testified to the fact that deceased cursed him and used very vigorous language in connection with the swearing. Taylor was permitted to testify that about a year before the homicide deceased had joined the church, and therefore had not been guilty of swearing since. The court says he admitted this because deceased had joined the church. The inference could be deduced that therefore he did not swear. We are of opinion this testimony of Mr. Taylor was not introducible.

The motion for rehearing is overruled.

PRENDERGAST, J.

(dissenting).

The evidence clearly shows that I. A. Huey, appellant, with malice aforethought and without any shadow of justification, deliberately laid his plans to kill, and did so kill, Will Grigs-by, deceased. Some three or four days before he killed him he became greatly enraged at him because he, Grigsby, would not go to St. Joe with himi and go his surety to borrow money from a bank. Early Monday morning Huey knew Grigsby would that morning go to his field to continue building a fence. Huey took his loaded shotgun, hid it in some growing corn and Johnson grass about 12 steps from where he knew Grigsby would go to work, and when Grigsby reached there Huey went to him and raised a row with him, deliberately walked out 12 steps, got his hidden gun, walked back to within a few steps of where Grigsby was, and with a wire fence between them, and without any provocation or excuse shot him down and instantly killed him. His own nephew, Dike Williams, was present and witnessed the brutal murder, and was so frightened by it, and by the fact that he feared his uncle, appellant, would also kill him to prevent him from being witness against him, that he (Williams), halloaing, ran away. His uncle, appellant, thereupon commanded him to hush and stop. Williams swore:

“He had his gun in his hand when he told me to stop, holding it across that way (indicating across the arm). He had his gun in his hands when he told me to hush. The reason I didn’t keep on running when he told me to stop, I was afraid he would shoot me.”

The evidence as a whole demonstrates this state of facts:

Grigsby was a farmer, owned his farm. Early in 1916 Huey rented some land from Mr. Taylor, near Grigsby’s. He had no house to live in. He also then rented some land from Grigsby, and thereby secured and moved into a house of Grigsby. When he rented he had only two head of stock. Later he acquired a pair of mules and a cow and calf. He was enabled to buy these mules to make a crop with by Grigsby going on his note for $250, the price of them. 1-Iuey had no means to buy provisions for himself and family to live on while making. a crop. About June 15th Huey wanted Grigsby to go with him to the town of St. Joe and go on his note as surety to a bank so he could borrow money to buy provisions. Grigsby declined to do this. It made Huey very mad. Lewis Grigsby, a son of deceased, learned Huey intended going to St. Joe and wanted to go with him. At the time Lewis did not know Huey wanted his father to go with him, but when Huey so told him, he saw and talked with his father, deceased. He then saw Huey again, and swore:

“I told Mr. Huey, ‘Papa said be was very busy in his crop and couldn’t get to go to St. .Too Saturday, and besides, if I wanted to go, I could save Mm the trip, because I could go as well as he in the favor that he intended to confer.’ I told Mr. Huey that I could go to the bank with him and tell the banker the number of acres of crop and the condition of the same that he had on Taylor’s place, and in that way help him to get the money. This conversation all took place in the most friendly way, without any thought of any anger or anything, but immediately following this statement that my father couldn’t go to St Joe the old man became very angry, and just broke out in a fit of rage. When I use the expression ‘old man,’ I mean Mr. Huey; he was the man I was speaking to; he broke out in a fit of anger, and said he could throw up the crop he was making on my father’s place and make a living hauling freight. He said, T can’t make a crop without somebody will give me money to buy provisions and things to work my crop, and if I have to let my crop go and grow up in grass, I guess I can make a living hauling freight.’ * * * When I told him I would go to St. Joe instead of my father, he said, ‘There is no use going at all unless your father will go; they don’t lend money out at the banks on wind.’ ”

This was on Thursday before Huey killed Grigsby Monday morning following. Huey went to St. Joe, it seems, alone and managed in some way to borrow some money from the bank.

The fence Grigsby was building was to separate his cultivated from his pasture land. Huey had helped him some' before Grigsby declined' to sign his note to the bank. Late Sunday evening Grigsby met Huey near Lewis,’ his son’s, and asked him if he was going to help him on said fence the next morning. Huey replied in a loud and angry tone:

“I can help you until dinner.”

Grigsby said to him:

“Well, Mr. Huey, I can’t build the fence myself, and if you won’t help me, I will have to hire some one to help me build the fence. If you don’t think the pasture of your stock is worth a little work on the fence, I will have to ask you to keep the stock out of the pasture or pay pasturage on them.”

Just then Mrs. Grigsby called to her husband for assistance about her cow and calf, and he left I-Iuey and went to her assistance. Lewis swore:

“Mr. Huey made no reply to my father in regard to helping him or paying on the stock; he didn’t say which he would do, whether he would help build the fence or pay pasturage on the stock; he just looked at my father right straight and turned and started off, and when he. had taken about six or eight steps he half turned and looked back to my father for probably a half minute, looked just right straight at him, then turned, and, with his head drooped, started on.”

Early Monday morning, while Grigsby was at breakfast, Huey sent his 17 year old son to tell, and he did tell, Grigsby “to come down and he would help him build the fence.” As stated above, 1-Iuey then took his loaded shotgun to where he knew Grigsby would go to work on the fence, hid it some 12 steps off, preparatory to kill him with it when he did come, and did then and there kill him with it.

Grigsby was a much smaller man than Huey, weighed about 125 pounds, was 62 years old, slender, and beginning to feel his age considerably. Huey was 59 years old, weighed not less than 165 pounds, and was a stout, able-bodied man.

Said Hike Williams, appellant’s nephew, who was present and witnessed the murder, testified that when he got within 30 or 40 steps of appellant and Grigsby he heard them talking pretty loud and sort of angry at one another; that it was his uncle, Ike Huey, that he heard; that he then went up to where the parties were; that Mr. Grigsby was sitting in his wagon behind the dashboard. Williams swore:

“When I got up there something was said to me. Mr. Grigsby said, ‘Dike, Huey says he has done as much work on the fence as I have.’ Mr. Huey then told Mr. Grigsby, ‘You are a God damn liar.’ Mr. Grigsby then said, ‘I am not supposed to take that Huey, but you are a larger man than I am.’ Mr. Grigsby then started off the wagon, and Mr. Huey picked up a hammer. Mr. Grigsby stepped out on the brake and from there down on the ground, and after Uncle Ike [appellant] picked up the hammer, he reached in the wagon and got out the axe. Mr. Grigsby was a small man. With reference to Mr. Grigsby appearing angry when he stepped out of the wagon, will say he never returned no words; he just got out of the wagon and picked. up the axe and threw it on his shoulder like this (indicating throwing axe over shoulder) and turned facing. Grigsby just turned around and was facing Uncle Ike. Mr. Grigsby didn’t move towards Uncle Ike. There was a wire fence between Mr. Grigsby and Uncle Ike. My Uncle Ike was on the south side of the fence, and Mr. Grigsby was on the north side. Mr. Grigsby was standing right up at the wagon when he got the axe out of it. When Mr. Grigsby picked up the axe and turned around, I guess he was something like two or three feet from the wagon. When Mr. Grigsby turned around facing Uncle Ike with the axe on his shoulder, Uncle Ike threw his hammer down and said, T don’t allow no God damn son of a bitch to draw an axe on me.’ After Uncle Ike dropped the hammer and left there, Mr. Grigsby dropped the axe down something like this (indicating holding axo with blade down towards feet). When my Uncle Ike said, T don’t allow no God damn son of a bitch to draw an axe on me,’ he turned and went off, and Mr. Grigsby dropped the axe down this way (indicating with handle in hand and blade towards feet). Mr. Grigsby was standing still when he dropped the axe down by his side. While Mr. Grigsby was standing there with the axe down by his side, that is when Mr. Huey started off. When he started off, he went out southeast and kind of across the com, and he picked up his gun. Mr. Huey went out 12 steps in the com, is what Mr. Taylor stepped it. I was there, and saw Mr. Taylor step it. He walked off 12 steps into the com and picked up the gun. He then came on back with the gun and shot Mr. Grigsby. I don’t know exactly.the distance he came back before he shot Mr. Grigsby, but he came back something over halfway. Mr. Grigsby was still standing holding the axe when Mr. Huey came bade there with the gun and shot him. Mr. Grigsby hadn’t moved or changed the position of the axe from the time Mr. Huey turned and went off and got the gun and shot him; he had not moved at all. Mr. Grigs-by was standing on the north side of the fence and Mr. Huey was still on the south side of the fence at the time he shot him. Mr. Huey came up with the gun kinder this way (indicating holding gun in about a half-raised position in front of Mm) and kinder pointing like tMs and bending oyer this way (indicating by stooping over), and be never straightened up at all; he was kinder bent over. Mr. Huey fired the gun without putting it to his shoulder.”

Dike Williams was a cripple. Some weeks after the killing Usko, the 17 year old son of appellant, told him:

“If I would swear that Mr. Grigsby ran at his pa with the axe through the fence, that that would beat the caso, and I said, ‘Usko, I ain’t go-ine to swear no lie; I have a God hereafter to meet.’ ” And that Usko then threatened to get a club and beat him.

On another occasion Usko told him that he did not know that he (Williams) would ever live to testify in the case. Other threats against Williams were testified to by him.

According to appellant’s own testimony, he tried to make it appear that at the time he shot and killed Mr. Grigsby Grigsby had an axe drawn on him up over his shoulder. If his testimony had been true on this point, it would have necessarily placed Grigsby’s fore-aim in such a position that the shot would have passed through his shirt sleeve on his arm. All this is shown by the testimony, and in addition was demonstrated before the court by the state’s attorney in arguing the case. It therefore became entirely proper for the state to introduce deceased’s shirt so as to demonstrate that appellant’s testimony on this point was false, and it therefore was entirely proper, as had always heretofore been held by this court, for the state to introduce the clothes of deceased to demonstrate the falsity of appellant’s claim. The fact that Mrs. Grigsby’s testimony identified deceased’s clothes, and their introduction in evidence was proper even though appellant had not at that time testified. The state doubtless knew what his testimony would be and had the right to anticipate and disprove it. The record in no way discloses that the state in argument or otherwise used deceased’s clothes in any improper way whatsoever. 2 Branch, Ann. P. 0. § 1855, where he collates a large number of cases.

That Dike Williams might point out to the other witnesses on the ground where Huey was when he started off to get his gun and came back about halfway and shot and murdered deceased and where deceased stood at the time was unquestionably admissible; and from this information, though given to the other witnesses by Dike Williams, they could, as they did, testify that they found appellant’s tracks going 12 steps after his gun, picking it up, and then returning a little over half the distance when he shot and killed deceased, was proper and legitimate testimony, and has always heretofore been held admissible. The bill on this point shows no error whatever.

Without doubt this case should have been affirmed, and not reversed. I respectfully dissent.
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