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resist and overcome the attempt; and if he threat, and had denied it, she might have uses only such force, and becomes excited be

been contradicted on this subject by the cause of the interference, and is rendered in

defendant. But such is not the attitude of capable of cool reflection, and then kills the father, the offense is only manslaughter.

the question as shown in the bill of excep14. SAME-JUSTIFIABLE HOMICIDE.

tions. If in the struggle which ensues the hus- We do not think it was relevant to any band's life is in danger from an attack about to be made on bim by her father, he is justified

issue in this case for the state to have provin killing him.

en, as was done, that Mrs. Lewis had two

daughters-one married, and that she had Appeal from District Court, Brown Coun

left her husband; and one unmarried-and ty; John W. Goodwin, Judge.

that defendant visited her house sometimes, Sam Cole was convicted of murder in the

and on one occasion went with her daughsecond degree, and he appeals. Reversed.

ters to church. While this does not appear I. J. Rice, Wilkerson & Lee, and Wood- to have been material to any issue in the ward, Baker & Woodward, for appellant. case, we fail to see any special injury on Howard Martin, Asst. Atty. Gen., for the account of its introduction to appellant. State.

We believe it was competent, as shown by

bills 11, 12, and 13, and some other bills, for HENDERSON, J. Appellant was convict- appellant to have shown what he told othed of murder in the second degree, and his ers about his family trouble, and the acts punishment fixed at six years' confinement of deceased in endeavoring to keep his wife in the penitentiary. This case came before from living with him. We believe it was us on a former appeal, and was reversed. particularly pertinent in this connection to See 75 S. W. 527, 8 Tex. Ct. Rep. 141. The have shown by the witness Baker what ocfacts are fully stated in that opinion, and curred between appellant and himself some those presented in this record are substan- time prior to the homicide with reference to tially the same, and we accordingly refer getting a writ of habeas corpus in order to to that opinion for the facts.

secure the custody of his wife, or to take her Appellant objected to the evidence offered away from her father's house. All this testiby the state of blood found on the ground mony was objected to on the ground that it near where the homicide was committed; was self-serving. It does not occur to us and, further, that the court improperly ad- that it was made to serve any purpose apmitted evidence of the wounds on deceas- pellant then bad in view; certainly not with ed's body; that there were two holes; and reference to the slaying of deceased and the evidence of another witness that the fabrication of testimony against such event. wound was a large one-that he could stick On the contrary, it shows, as we take it, an his two fingers into the hole. Under the earnest effort on the part of appellant to explanation given by the court to the effect | get his wife away from the control of her that this testimony was pertinent to certain father; and it shows a belief on his part that issues in the case, it occurs to us there was her father was endeavoring to separate no error in its admission.

them; and it shows in this respect the conNor do we think the exceptions taken by dition of appellant's mind at the time, which appellant to the remarks of the district at- has an important bearing on the case as torney or counsel for the state, as presented made by the state against him. The state's in bills Nos. 3 and 5, show any error.

case tends to show that deceased was kindly Bill No. 8 is an exception taken to the disposed toward appellant, and he had no action of the court refusing to permit Mrs. desire to separate appellant's wife from him. Lewis and Mrs. Thompson to state what Poole v. State (Tex. Cr. App.) 76 S. W. 565. Mrs. Hudson (wife of deceased) told them at Appellant insists that the court committed the house of Mrs. Lewis some time before an error in rejecting evidence on the part of the homicide, to wit: “That she did not appellant to the effect that some time beknow whether defendant's wife was going fore the homicide he went to the town of to stay with her. That Sam Cole had writ- Coleman with his father-in-law, and that his ten for her to come to him, and she cried father-in-law's mission was to ascertain if and wanted to go, and I consented. I must he had been indicted for improperly renderconsent to let her go. But Mr. Hudson says ing his taxes; that his father-in-law on their before he shall take her he would kill him." return home stated that the tax assessor The court explains that all of this testimony had not indicted him; that, if he had indictwas admitted except the last portion there- ed him, he would have killed him, or words of, to wit, the threat of Mr. Hudson. Of to that effect. Appellant relied on self-decourse, it would have been competent for fense, because of an attack on the part of the defendant to have proven by original tes- deceased at the time of the homicide, and timony-by Mrs. Hudson herself-that de- his apprehension of danger in that connecceased had threatened appellant; but this tion. The doctrine seems to be that under could not be proven by hearsay testimony, such circumstances appellant has the right such as that offered. Possibly, if Mrs. Hud- to have in evidence any fact which tends to son had been placed on the stand by the prove the bona fides of his belief that he was *te, and she had been asked about this in danger. In that respect he can rely on proof of the desperate character of his ad- in the case, and the use of it was calculated versary, or on proof of some special act or to injure appellant. communication by deceased to him, which in- On the former appeal we held that the dicates his dangerous character. Childers v. testimony of certain witness regarding the State, 30 Tex. App. 193, 16 S. W. 903, 28 Am. physical condition of deceased shortly before St. Rep. 899; Dodson v. State (Tex. Cr. App.) the homicide was inadmissible. It appears 70 S. W. 969. However, we do not believe that on this trial some of this same testiit was competent to show that deceased mony, to wit, that of Mrs. Hanks, was admitcould have told appellant on one occasion ted to the effect “that C. C. Hudson looked that he had run away from East Texas, and very feeble. I saw his side. There was a that he had a great deal of trouble with sink in his side. [This was a few weeks officers, and it cost him a good deal to get before the homicide.)” This testimony was out of it, as it is not shown what this trouble objected to on the ground that said witness was.

was a nonexpert, and her testimony was a It occurs to us that the two letters of- mere opinion, except as to the sink in his fered by appellant in evidence, written by side; and that the same was made in the him from San Angelo to his wife, who was absence of appellant, and he was not shown then at her father's, in April, 1902, were ad- | to have had any knowledge thereof. The missible in evidence. On the former appeal court, however, explains this by stating “that we held that the letters of appellant's wife defendant offered evidence tending to show written about the same time to him were that deceased was a man of fine physical admissible as showing their domestic rela- power, and this evidence was admitted in retions; that they were affectionately inclin- buttal of this; there being evidence that deed to each other. This was in rebuttal of ceased received an injury a few weeks bethe state's case that the relations were not fore he was killed, and that defendant knew friendly; that appellant was unkind to his it.” If defendant knew that the sink in

by

letters were admissible, by a stronger reason said to have been received, and knew of that his own letters were admissible. They serve injury, then the explanation of the court to show directly his affection towards his might have rendered the same admissible. wife, his dissatisfaction at her living with We believe that this testimony should have her father, and his desire to have her come been rejected. Of course, it was competent and live with him; and in this connection to prove, in rebuttal of the state's evidence, his idea that his father-in-law did not want that the deceased had been sick or had been him about him, and did not want his daugh- injured recently, and was still feeble, sufferter (appellant's wife) to leave his roof. We ing from such recent illness, if this matter note the court explains that these letters of- was reasonably within the knowledge of apfered do not seem to be in response to any pellant; and it occurs to us that it was, letters of his wife to him. It does not occur though, as stated, it does not appear that to us that their admission would depend on appellant had any knowledge there was a their being responsive, unless it could be hole or sink in deceased's side. Nor are we said that his wife's letters having been intro- informed how this affected deceased. duced, and his in response thereto being a Appellant strenuously urges that the court part of the same transaction, should also

committed error in allowing the wife of apbe admitted on that account. We believe pellant to testify against him to the effect they were admissible on another principle that appellant immediately on shooting dethat they were not self-serving; that they

ceased exclaimed, "I told you I would do it," were in rebuttal of the state's case on an im

and, further, that immediately thereafter he portant feature thereof, and served to show

drove the buggy a little piece, and hurriedly defendant's state of mind with reference to returned, and again made the same declarahis wife and his father-in-law at that time.

tion. It was shown in this connection that Nor do we think it was proper, as was since the homicide appellant's wife had prodone, to permit the state to prove that ap- cured a divorce from him; but it is claimed pellant during his confinement in jail was

by appellant that, notwithstanding this diengaged in studying law. Not that the study vorce, the testimony here complained of was of law should at any time be the subject a confidential communication between husof censure, but the peculiar use which the

band and wife, and that under our statute state made of this fact before the jury was

her lips were forever closed against testify. calculated to injure him. It must be admit- ing thereto. In support of this proposition ted that among certain classes there is an an- we are cited to Brock v. State, 71 S. W. 20, tipathy to lawyers. Whether this is well or 6 Tex. Ct. Rep. 319; Davis v. State, 77 S. ill founded is not the question. But this is not W. 451, 8 Tex. Ct. Rep. 766. It does not octhe serious matter complained of here. It is cur to us that either of these cases apply that counsel used this testimony to show to the question here presented. Brock's Case that appellant was engaged in the study of merely held that a wife could not testify law in order to enable him to fabricate a against her husband, although no objection defense to the prosecution. The testimony was made, and no bill of exceptions taken to was not relevant or pertinent to any issue her testifying. In Davis' Case it appears there was a confidential communication in- crying as if her heart would break, and said troduced through the wife after her divorce that Sam had told her to 'go to the house, from ber husband. Article 774 (Code Cr. God damn your soul to hell'"; that she did Proc. 1895) provides that neither the husband not hear Sam say this, but his wife told her. nor wife shall in any case testify as to com- It seems that this testimony was admitted munications made by one to the other while without objection, or, rather, it was adduced married, nor shall they, after the marriage by appellant. It appears in this connection relation ceases, be made witnesses as to any that he had endeavored to elicit what ocsuch communication made while the mar- curred at that time, and Mrs. Hanks refused riage relation subsisted, except in a case to answer the direct question, and said she where one or the other is prosecuted for an would have to explain it. As soon as this offense, and the declaration or communica- witness made the statement as to what Mrs. tion made by the wife to the husband or by Cole told her on her return from the lot, apthe husband to the wife goes to extenuate or pellant made a motion to strike it out. The justify the offense for which either is on state objected on the ground that appellant trial. So the question here is, was the dec- had drawn it out, and ought not to be allowlaration of appellant a confidential communi- ed to withdraw it. The defendant's attorney cation between husband and wife? We hold abandoned the objection at that time, and let not. It was unquestionably a part of the it go; but later in the trial he renewed his res gestæ. It was an exclamation of the motion to expunge said testimony from behusband immediately on firing the shot fore the jury, which the court refused to do. which killed deceased, made in the presence In this, we think, the court was in error. of both his wife and his wife's mother. It Burke v. State, 15 Tex. App. 167. was the transaction voicing itself in the pres- Appellant questions the court's charge on ence of his wife and another, and not a con- manslaughter, contending that the court fidential communication. We held that it should have grouped all the various instances was admissible. See Kenney v. State, 79 S. of provocation which he claims were comW. 817, 9 Tex. Ct. Rep. 888, and authorities mitted against him by the deceased, and have there cited, especially Cook v. State, 22 Tex. instructed the jury, in effect, that this conApp. 511, 3 S. W. 749.

stituted adequate cause. We do not agree In this same connection the state was per- with this contention. The court told the mitted to introduce the contents of a letter jury that the provocation must arise at the written by deceased to his daughter when time, but they could look to all the facts and she was living with her husband at Big circumstances in evidence in order to intensiSprings, some year or more before the homi- fy and make out the provocation at the time. cide. There are some expressions of good This, we think, was sufficient. will and esteem on the part of deceased to- The court also instructed the jury that, if ward his son-in-law, and appellant objected appellant killed deceased to prevent him takto these expressions of good will on the ing his wife and child from him, but not in ground that they were confidential communi- defense of himself from an attack by deceascations, because the letter in question was ed in connection with his effort to take posreceived by appellant's wife, and the same session of appellant's wife and child; that was handed to appellant, who read it. It appellant's mind was thereby excited, and he occurs to us that this letter was within the was rendered incapable of cool reflection, and rule of confidential communications. But for on that account he slew deceased-it would the fact that appellant was the husband of be manslaughter. It is contended that this deceased's daughter, he would not likely have charge unduly limits the right of appellant been permitted to read the letter in question. in regard to maintaining his custody of his We can see no difference between this and wife and child, inasmuch as it instructs the if deceased had told his daughter of his re- jury that he would have the right to resist gard and esteem for her husband, and she such interference or restraint on the part of had been allowed to testify that she had told deceased by such means as reasonably apher husband of these expressions of deceas. peared necessary to resist such restraint, but ed, during their marriage. We believe that he could use no greater force than reasonably this testimony was inadmissible.

appeared to him necessary to resist such reIt does not occur to us that the refusal of straint. It must be admitted that this charge appellant's wife to answer questions in the is not very clear, and is susceptible of the divorce proceedings by her husband until she construction placed on it by appellant. The should see her lawyer was admissible in evi- court should have told the jury in plain landence; much less that the certificates of of- guage that appellant had the right to the cusficers to that effect were admissible.

tody of his wife and child, she consenting The testimony of Mrs. Hanks to the ef- to go with him, and that deceased had no fect that on one occasion prior to the homi- right to interfere with this custody, and that, cide appellant and his wife were at Mrs. if deceased did interfere, or attempted to Hanks' house, and that they had a little quar- gain possession of appellant's wife and child, rel at the breakfast table. Afterwards ap- appellant had the right to resist such atpellant went to the lot, and his wife follow- tempt, and to use all force necessary to overed him there, "and afterwards came back come such interference and protect his own possession; and, if he was using only such a right to slay deceased. We understand the force as was reasonably necessary for that charge above referred to embraces this prinpurpose, and his mind became excited be- ciple. cause of the deceased's interference to get We do not deem it necessary to discuss possession of his wife and child, and he was the charge further, nor any of the requested rendered incapable of cool reflection, and he special instructions. slew deceased not in his necessary or ap- For the errors pointed out, the judgment parently necessary self-defense, then his of- is reversed, and the cause remanded. fease would be no more than manslaughter. The same vice above pointed out enters into a subsequent charge, which is complained of. For instance, the court instructs the jury

GARLAS V, STATE. that the resistance which appellant would (Court of Criminal Appeals of Texas. June 21, have the right to make must be proportionate

1905.) to the injury about to be inflicted. It must

1. SEDUCTION TRIAL OHARGE ON TIIE only be such as is necessary to repel the ag- WEIGHT OF THE EVIDENCE. gression, and the use of any greater force In a prosecution for seduction, an in

struction that the jury could not find a verdict would be illegal. We understand the law to

of guilty upon the testimony of prosecutrix unbe that he cannot only repel the aggression, less the same was corroborated by other tesbut he can overcome the aggression by the timony, and that it was necessary that the wituse of any force that is reasonably necessary

ness be corroborated both as to the promise of

marriage and as to the fact of intercourse, for that purpose so as to maintain and se

was on the weight of the testimony in assuming cure the custody of his wife and child, and that prosecutrix had told the truth. prevent deceased from gaining such custody. [Ed. Note.-For cases in point, see vol. 14, However, a subsequent portion of the charge Cent. Dig. Criminal Law, $$ 1731, 1772, 1773.) does seem to express the idea intended to be 2. SAME--EVIDENCE-SUFFICIENCY. conveyed by what has been said; that is,

Evidence held insuflicient to support a con

viction for seduction. the court fairly presented this matter to the jury, as follows: "Wow if, from the evidence Appeal from District Court, Tom Green in this case, you believe that defendant, Sam County; J. W. Timmins, Judge. Cole, shot and killed C. C. Hudson, but be

Emmal Garlas was convicted of seduclieve that at the time he did so, if he did

tion, and appeals. Reversed. so, C. C. Hudson, either alone or acting with R. E. Taylor and J. C. Simmons, for aphis wife, was restraining, or at the time was pellant. Howard Martin, Asst. Atty. Gen., endeavoring to restrain, Lydia Cole from vol- for the State. untarily leaving the home of said Hudson with defendant, or if from the evidence you HENDERSON, J. Appellant was convictbelieve that it reasonably appeared to de- ed of seduction, and his punishment assessed fendant at the time, from the acts and con- at confinement in the penitentiary for a term duct of said C. C. Hudson or said Hudson of two years; hence this appeal. and his wife, or from the acts and state

The facts, briefly stated, show that appelments, if any, of said Hudson or said Hud

lant was a farmer, living in Tom Green counson and wife, that said Hudson was restrain- ty, near Fred Hoenghaus, the father of prosing, or was at the time attempting to re- ecutrix, a farmer in the same neighborhood. strain, Lydia Cole from voluntarily leaving Appellant at the time was a widower with the home of said Hudson with defendant, three small children. Prosecutrix, a girl of then you are instructed that defendant would

19 years of age, at the time was living in have been justified in using a degree of force Ballinger, some 15 or 20 miles distant. Apsufficient to overcome such restraint, but no pellant, on the day before the alleged seducgreater."

tion, went over to where Hoenghaus was at We also believe that the charge on self- work. The latter, asked him if he did not defense, which follows this, was in accord want to marry. Appellant told him he would with the law; that is, we understand said if he could find a good woman. Hoenghaus charge to announce a correct principle in told him he had a mighty good girl, and he this; that appellant had a right to the cus- need not be ashamed, he wanted his girl, tody of his wife and child, she consenting to just to ask for her. Appellant asked where go with him, and that deceased had no right his girl was, and he told him she was in to interfere to prevent her from so doing, and Ballinger at work; that if he wanted to that if he alone, or in conjunction with his marry his daughter he would have to see his wife, did interfere, appellant had the right wife about the matter, and if she was to resist such interference, and to oppose willing he could go to Ballinger and bring force with force, in order to protect his cus- her home, but he did not have the money tody of his wife and child; and if in the to pay her railroad fare back to Ballinger. struggle which ensued appellant's life was in Defendant told him that was all right, to go danger, or his person in danger of serious and bring her home, and that he would furbodily injury from an attack made or about nish the money to pay her fare back, and to be made on him by deceased, or deceased that if she suited him he would marry her. in conjunction with his wife, then he had On the next morning Hoenghaus and his wife went in the wagon to Ballinger for he went over and met the girl. They stood their daughter Lissie. They told her of ap- in the door awhile, and then went in to suppellant's proposition, and she agreed to it, per. After supper, they went back in the and accompanied them home from Ballinger house and sat down on a little single lounge. on the same day. When they arrived at Soon after they sat down, he said, "I guess home, appellant was either there, or came you know what I came for?” and she said, shortly afterwards. After supper, Lissie and "Yes, my father told me." "I then put my defendant went in the room, adjoining arm around her, and began to feel her; felt Honeghaus and wife, and Hoenghaus relates all over her, and she did not raise any objecthat he heard the cot creak in the room aft- tions.” He then asked her if she would take er they had been in there a little time; and a walk with him, and she said she would. that directly the parties left the room, and They walked away from the house about 250 went outdoors, and did not return until about yards, and sat down. He asked her if she 2 o'clock in the morning. Prosecutrix here would give him some. She at first did not takes up the story, and she relates that be- say whether she would or not. He then profore supper, while appellant and she were posed to walk a little farther, and he asked in the room together, appellant said to her, her again if she would copulate with him. "I wish you would be my wife," and she re- She said yes; that he might if he would do plied, “I wish the same.” When they went it to her standing up; that he tried it, and into supper he said to prosecutrix, “Now we told her she had been tampered with; that are engaged.” After supper they went out they could not do anything that way. She into the yard, and talked a while where her then told him that Fritz Schlakey was the father and mother were. They then went only fellow that had ever done it to her, but back into the house and sat down on a that he had He then told her to lie down, lounge. Appellant asked her to take a walk | and she pulled off her drawers and lay down, with him. They got up, went out of the and he copulated with her. He had no trouhouse about 10 o'clock, walked about 300 ble in penetrating her; she did not complain yards from the house, and sat down on a of it hurting her. Saw her unbutton her rock. After they had been sitting there a drawers on the side, and took them off. “We short time, defendant asked her if she would i waited a while and I done it to her again, give him some. She told him she did not, and then we went on back to the house, and want to. They then got up and walked I went home." That he did not promise her about 30 or 40 yards further, and he again at any time that he would marry her. All asked her and begged her for about five min- that he said to her about marrying was, “I 'ites to let him have some. She then sub- guess you know what I came for?" and she mitted. They then waited about five min- said that her father had told her. That it utes, and he did to her again. Twice was was a fact that he intended to marry her, all that he did it to her that night. Defend- and would have done so had she not told him ant said nothing to her about wanting to that Fritz Schlakey had done it to her, and marry her that night, except as above relat- if he had not heard so much about her chared. She further states that she would not acter. This is a sufficient statement of the have permitted him to do it to her if he had case in order to discuss the assignments. not told her at the house that he wished Appellant excepted to the charge given by she would be his wife, and she had agreed the court on accomplice testimony, on the to be his wife; that defendant is the father ground that the same is upon the weight of of the baby she then held in her arms; that, the testimony. Said charge is as follows: after they got up from where they were hav- You are further instructed that you cannot ing intercourse and started back to the house, find a verdict of guilty in this case upon the defendant gave her 50 cents to pay her rail- testimony of Lissie Honeghaus unless the road fare back to Ballinger. On cross-exam- same is corroborated by other testimony ination she stated that she had only known tending to connect defendant with the ofdefendant two or three hours before she had fense committed, and it is necessary that intercourse with him; never met him before said witness be corroborated both as to the that evening; that, when he first proposed promise of marriage and as to the fact (if to copulate with her, she told him she would such is a fact) that defendant bad carnal rather wait until they were married, but he intercourse with said witness." This charge insisted on having intercourse with her then; is on the weight of the testimony in assumthat they were engaged, and that was all ing that prosecutrix had told the truth, and he said to her before she submitted to him. that all that was required was that she This is substantially the state's case. Ap- should be corroborated. This charge has ofpellant relates the matter about as follows: ten been condemned. Hart v. State, 82 S. He tells how prosecutrix's parents sent to W. 652, 11 Tex. Ct. Rep. 190; Crenshaw v. Ballinger for her about as the state's wit- State, 85 S. W. 1147, 12 Tex. Ct. Rep. 758, nesses testified. He says, “I did not tell Mr. and authorities there cited. Hoenghaus I would give her 50 cents to pay The appellant's counsel in their brief disher railroad fare back to Ballinger if she cuss a number of assignments of error, both did not suit me;" that on the evening of the as to the admission and rejection of testiday they brought her back from Ballinger mony, and as to the failure of the court to

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