Bonnard v. State

White, Presiding Judge. This appeal is from a judgment of conviction for murder in the second degree. Twenty errors are assigned for reversal, and they relate, first, to the exclusion of evidence; second, to errors in the charge of the court to the jury; third, to the refusal of special requested instructions in behalf of defendant; fourth, to the insufficiency of the evidence to support the verdict; and, fifth, to the overruling of defendant’s motion for a new trial. We do not propose to discuss all these assigned errors, but will select those which are, in our opinion, the most important. I. It was error to exclude the testimony of the witness Joe Bidwell, as shown by the first bill of exceptions, to the effect that on the night before the shooting a difficulty occurred at a party at the house of one Page, between the principal State’s witness Ike Moore and the defendant, in which the-witness Moore had followed the defendant out of the gate, and, when defendant told him to stop following him, turned away with the remark, “I’ll see you again and will shoot a hole through you a yellow dog can go through. I am a" yard wide, all wool and hard to curry.” This evidence was admissible to show the mo [196] tive, animus and extent of the feelings of the witness toward defendant. “The motives which operate upon the mind of a witness when he testifies are never regarded as immaterial or collateral matters.” (Gaines v. Com., 50 Pennsylvania State, 319-326.) As to hostility, interest or bias against a defendant, a witness may be contradicted, if he denies them, by evidence of his own statements or of other implicatory facts. “ The same rule applies to questions as to quarrels between the witness and the party against whom he is called.” (Whart. Crim. Ev., sec. 485; 1 Greenl. Ev., 13 ed., sec. 455; Hart v. The State, 15 Texas Ct. App., 202; Favors v. The State, 20 Texas Ct. App., 156; Rosborough v. The State, 21 Texas Ct. App., 672. See also upon this point. Newcomb v. The State, 37 Miss., 383, and also the case of Kent v. The State, Ohio, reported in full in the sixth Crim. Law Magazine, p. 520, in which the cases are reviewed and the doctrine upon the subject elaborately discussed.) It is shown by the evidence that the witness Moore had been a party to and associated with the deceased in all the troubles and difficulties between the latter and the defendant, and the extent to which he was biased was legitimate matter to be considered by the-jury in determining the credibility of his testimony. Defendant’s fourth bill of exceptions was taken to the exclusion of his statements made to his brother, John Bonnard, on the night of the difficulty, and when he first met his brother after the difficulty, in which he detailed all the circumstances of the difficulty fully, and in which he also explained to his brother the fact that he had related the circumstances differently to the young ladies at Mrs. Welch’s immediately upon his return from the scene of the difficulty, and told him the reasons which induced and influenced him in making the statement as he did make it to those young ladies. The prosecution had proved by these young ladies what defendant’s statements to them were, and the defense proposed to prove the statements made to his brother in order to explain these statements, under the statutory rule that “ when a detailed act, declaration, conversation or writing is given in evidence, any other act, declaration or writing which is necessary to make it fully understood, or to explain the same, may also be given in evidence.” (Code Crim. Proc., art. 751.) We are of opinion the bill of exceptions brings the excluded evidence directly within the purview of the rule as the same has heretofore been construed by this court in Green v. The State, 17 Texas Court of Appeals, 395; Harrison v. The [197] State, 20 Texas Court of Appeals, 387; Rainey v. The State, 20 Texas Court of Appeals, 455; Gaither v. The State, 21 Texas Court of Appeals, 528, and that it was error to exclude the testimony. This case is not analogous to the Lilly Gibson case, 23 Texas Court of Appeals, 414, in this particular. Appellant having been convicted of murder of the second degree, this eliminates from discussion all questions as to the correctness of the charge of the court as to murder of the first degree. As to murder of the second degree, Manslaughter, self defense, etc., many attacks are made upon the charge as a whole and to each particular paragraph, as well as to the action of the court in refusing all of defendant’s special requested instructions. It would be a useless consumption of time to attempt a review of all the matters thus presented and so strenuously urged in the oral arguments and able brief of counsel for appellant. Suffice it to say that, in quite a number of the particulars mentioned, the charge is to some extent confusing if not misleading, and in one of the particulars specially complained of is clearly erroneous. We will summarize the several phases in which the evidence presents the case to our minds and to which the charge should have been mainly, pertinently and affirmatively directed. 1. The State’s theory was that defendant and deceased had been at enmity for some months, and defendant had made seriious threats against the deceased; these threats had perhaps been communicated to deceased, and he was anticipating and prepared for trouble with defendant when he should meet him. Row, if under these circumstances, both parties had determined in their minds to bring on a difficulty when they should meet, in which the one intended to kill the other, or inflict serious bodily injury which might result in death, then, if such was the case and a difficulty and death ensued, no matter which provoked it, the party killing would be guilty of murder. (Penal Code, art. 603.) 2. If defendant, however, did not intend to provoke a difficulty with deceased, but sought the interview with him solely for the purpose of demanding pay for his spurs, and acdifficulty ensued in which defendant, on account of abuse heaped upon him by deceased, voluntarily slew him in heat of passion engendered by the present abuse, taken in connection with the previous wrongs done him by deceased, and the circumstances all together combined were of such a character as to produce ade [198] quate cause sufficient to render the mind incapable of cool reflection, then such killing would be manslaughter. (Wadlington v. The State, 19 Texas Ct. App., 266; Johnson v. The State, 22 Texas Ct. App., 206; Howard v. The State, 23 Texas Ct. App., 265.) Opinion delivered March 7, 1888. 3. If defendant sought an interview with deceased with no hostile intentions, and deceased became enraged and committed an assault upon defendant which did inflict pain or bloodshed, and under the passion thus engendered defendant shot and killed deceased, the pain or bloodshed would amount to “ adequate cause,” and the killing would be manslaughter. The charge of the court was radically defective in not presenting this phase of the law of the case in affirmative terms. (Hill v. The State, 8 Texas Ct. App., 142; Foster v. The State, Id., 249.) 4. If defendant sought the interview with deceased with no hostile intentions, but simply and solely to demand a settlement and pay for his spurs, and deceased became angry and a wordy altercation ensued during which deceased drew his pistol and assaulted defendant with it in such a manner as to create in defendant’s mind a reasonable apprehension of death or serious bodily injury, and, acting upon such reasonable apprehension, defendant fired the fatal shot, then and in that event he would be justifiable upon the ground of necessary self defense. (See Willson’s Crim. Stat., sec. 1070.) These are, in our opinion, in brief the essential principles of law applicable to the facts of the case as shown by the record, and they should-have been submitted plainly, fully and affirmatively, and without unnecessary verbiage, by the charge. For the errors pointed out, the judgment is reversed and the cause remanded. Reversed and remanded.