Latham v. State (75 Tex. Crim. 575, 1914)

PRENDER OAST, Presiding Judge.

—Upon an indictment and trial for murder appellant was convicted of manslaughter with the highest punishment assessed. This case has been before us heretofore on habeas corpus and is reported in 73 Texas Crim. Rep., 144, 164 S. W. Rep., 377.

Appellant was a married woman thirty-two years old. She had been married more than thirteen years and had a son about twelve years old. Deceased, John Stewart, was a young unmarried man about four years younger than appellant. She, with her husband and child, had lived at their home in Sterling City, Texas, for several years prior to 1913. She was engaged in the millinery and tailoring business and her husband was a clerk for a lumber company. Their places of business were a block or two apart. Deceased also lived in Sterling City from the latter part of 1911 to about April, 1913. She and deceased became acquainted in 1911. Soon thereafter he became a very frequent visitor to her at her place of business when her husband was not there. Deceased, it seems, became much attached to her and loved her, so he told her. She reciprocated his. love. The evidence clearly justifies the conclusion, although denied by her, that this relationship ripened into illicit intercourse between them. He visited her at her home at nights when her husband was away and she alone. By mutual engagement about the 1st of April, 1913, deceased met her out at her barn one night while her husband was at home. Her husband detected them together at the barn and accused her of infidelity to him and sexual intimacy with deceased. At her solicitation, as well as for his own safety, deceased thereupon removed from Sterling City to Snyder, in Scurry County, where his widowed mother and other members of the family then resided, and thereafter continued to reside at Snyder. Her husband’s discovery and accusations resulted in her leaving her home in Sterling City and going to her sister’s in Teague, Freestone County, Texas, early in April. While at Teague she wrote deceased some letters which tended strongly to show her attachment for him and their previous illicit intercourse. She was away from her home and with her sister at Teague only about a week. While there her husband went on some business from Sterling City to Beaumont, Texas, and while away wired h%r to meet him at Temple and go back home with him, which she did. She protested all the time her innocence to her husband of any illicit relationship with the deceased, and they continued to live together from that time to the time she killed the deceased, on January 20, 1914, she claiming that from time to time during this time her husband treated her well and at other times very badly because of his discovery and his charges of infidelity against her. While at Teague she received letters from the deceased. Upon leaving Teague she requested her sister to write deceased and procure the return to her sister from deceased the compromising letters she had written to him. For some reason deceased failed or refused to return the letters, but kept them. About two weeks after her return home with her husband, on April 26, 1913, she wrote deceased telling him that she did not care for him; that she hated him; that he had wrecked her home and caused her to lose the affection and confidence of her husband and denouncing deceased. On May 9th following, she wrote deceased another letter telling him she regretted writing him as she had in the one of April 26th, and requesting an interview with him soon, and requesting a reply to be addressed to her sister which she would procure.

The State introduced evidence tending strongly to show, though denied by her, that appellant and her husband went from Sterling City to Snyder in their automobile in July, 1913, heavily loaded with firearms, to kill the deceased at that time. The State also introduced much evidence showing the movements of appellant and her husband from about January 6, 1914, in their automobile again heavily loaded with firearms, which tended strongly to show that it was the intentioh of one or the other or both of them to then hunt down the deceased and kill him. Their movements were shown from about January 6, 1914, when they traveled from Fort Worth in their automobile to her husband’s brother’s in Dickens County, and thence from Dickens County down to Snyder, showing that on the evening of January 19 they reached a point near Snyder some time in the evening and waited there till after dark before going into Snyder; that while thus waiting she inquired for deceased from some citizen who passed her, indicating clearly that she was then seeking information if deceased was'at Snyder; that after dark they went from their stopping place several miles from Snyder direct into Snyder in their automobile. She said that as she drove into Snyder she thought she saw deceased; they drove on around in the automobile until they got near the residence of deceased’s mother when she got out, carrying with her her Savage automatic pistol, which carried nine steel cartridges, which she continuously thereafter carried concealed about her person; that at the time she got out of the auto-' mobile she had an understanding with her husband that she would meet him the next day at Eoscoe, a station reached on one of the railroads from Snyder, and that her husband went there and waited for that purpose. Soon after she got out of the automobile she walked some block or two to the Maxwell Hotel in Snyder, kept by Mr.. J. Y. White, where she registered in the hotel register as “Mrs. C. C. Evert, Ft. Worth,” and was assigned to room 22 by Mr. White. She is shown to have gone from that hotel that night, soon after she registered, out into the town and at a point where it is evident from all the testimony she anticipated she would, meet the deceased, but did not do so. It is unnecessary to detail all this evidence which tends so strongly to show that she was hunting for the deceased with the evident purpose of killing him upon sight, as she was not convicted of murder but of manslaughter. She is also shown, the next day, to have gone out in the town with a veil over her face and with a rain-proof coat on, which would prevent, her from being recognized by one who knew her, still evidently on the hunt for deceased. She is also shown to have been out in front of the hotel a great deal of the time when she was not perambulating the streets, evidently watching for the deceased. The evidence is conflicting whether she had a veil over her face while she was out in the town and at the time and immediately before she killed the deceased. The preponderance of the evidence would show that she thus went all the time and did not raise the veil from her face until at the very moment when she shot and killed the deceased. The killing occurred early in the evening of January 20, 1914. The hotel where she stopped was two doors east from the northeast corner of the public square. The postofflce .is on the west side of a street, going north from the northwest corner of the public square. The north side of the public square is occupied by business houses fronting south. In front of these houses was an ordinary concrete sidewalk about ten feet wide. Very shortly before she killed deceased it was shown that she was sitting on the sidewalk in front of the hotel; that deceased went to the postofflce and returned therefrom to the northwest corner of the square and crossed the street at the corner from the west side to the east side in front of the First National Bank building, which was on that corner. Where deceased stepped up on the sidewalk in front of said bank was plainly in view and in one block, and across one street, and two houses from where she was sitting. The evidence would clearly justify the conclusion that she saw and recognized deceased as he stepped up on the sidewalk in front of the bank. At this time she had the head of a little girl sitting by her side, in her lap. She hurriedly lifted the child from her lap, immediately got up and started somewhat briskly down the sidewalk to the point where deceased was and where she killed him. She went immediately and directly from the hotel, as described above, without stopping, to where she killed the deceased. Many persons were on the sidewalk and about it from the northeast corner of the courthouse square to and beyond the bank building. The evidence is contradictory as to whether the deceased had just reached the sidewalk and stepped up on it in front of the First National Bank when she reached that point and killed him, or whether he had been there some short time and had sat down on the sidewalk with his back towards the bank building • and his face somewhat south towards the public square. She contended and testified, and others also, that she met him at this point with his face towards her; that he had his open pocketknife in his right hand; that he shifted it to his left hand, made a motion therewith towards her and threw his right hand down towards his right side where he then had his six-shooter. However, the preponderancc of the evidence and the fatal shots which killed the deceased, clearly justified the jury to believe that the deceased was sitting on the sidewalk with his back towards the bank, his face fronting south, and that she shot and killed him without his knowing who it was, or without his making any demonstration whatever with the knife or any attempted demonstration with his right hand towards his pistol. The witnesses differed as to the number of shots she fired. All of them showed that not less than four were fired, others that one or two more were fired. There is no controversy, either by the witnesses, or from the wounds found on the body, that no shot hit him in the front part of his body anywhere. One shot struck him in the back of the flesh part of the left arm, entering the rear part of the body just below the armpit and passed entirely through his body, emerging near the front part of his right side near the armpit and passing through the front flesh part of the right arm. This ball, after passing entirely through both arms and the body, stopped in his shirt on the fr-ont and outside of his right arm. Another shot struck him near the lower part of the left shoulder blade about an inch and a half from the spinal column and passed entirely through the body, emerging in the front near the left nipple. Another shot penetrated about the same location to the right of the spinal column and passed through the body, lodging near the right nipple but did not emerge through the skin. Another shot penetrated his right buttock, ranging upward and inward and passing into the center of the body, remaining therein. When the first shot was fired, which evidently struck him one of said four wounds, deceased lunged forward, grasping the city marshal, Mr. Wolfe, by whom he was sitting on the sidewalk at the time. This threw him off of the sidewalk on the ground out in the street. He immediately called for someone to stop the woman from shooting, clinging to the legs of Mr. Wolfe and struggling to get up. Immediately after she fired the first shot into the deceased and when he fell off of the sidewalk into the street, she stepped off of the sidewalk, walked around and proceeded to immediately fire the other shots into his body. All the witnesses say that while she was doing this the back of the deceased was toward her. The marshal called to her to stop shooting and attempted to catch her pistol and prevent her shooting. In doing so one of the shots penetrated his right hand. She immediately stepped back and away so the marshal could not interfere and fired one or more of the shots into the body of the deceased. She claimed she knew nothing of what she did or what was done or said after she fired the fiyst shot. The other witnesses show that about the time she ceased firing the marshal confronted her and demanded her pistol. Some say she delivered it to him; he and others say that she moved it behind her to prevent the marshal from getting it when he was reaching for it. The marshal says she said you had better call an officer. He replied that he was an officer, the city marshal, and then he reached around behind her with his wounded hand and took the pistol from her. That when she fired the last shot she smiled and several of the witnesses say that she was not excited,—very cool and calm. As soon as the pistol was- taken from her by the marshal she discovered blood on her hand and garment from the hand of the marshal and requested to be taken into the drug store so that she could wash the blood off of her hand and garment, which was done. She claimed she did not intend to kill the deceased but to see him and get her compromising letters from him and have him sign a statement that he had not had sexual intercourse with her so as to show her husband and pacify him.

This is a sufficient general statement of the case. We have not undertaken to give the testimony of the various witnesses wherein it conflicted, except in the general statement above.

We take up the questions raised by appellant in the order in which she presents them in her brief.

She first claims that the evidence was insufficient to sustain the conviction in that it shows that she killed the deceased in self-defense. Our study of the evidence has convinced us that the preponderance of the evidence on this question was clearly against her and we can not disturb the verdict on that ground.

The next question is shown by one of her bills wherein she objected to the State proving that the name she signed had been erased from the hotel register by some unknown person.. The bill on- this point shows substantially this: While Mr. White, the hotel proprietor, one of the State’s witnesses, was on the stand, he testified that on the night of January 19, 1914, she came to his hotel alone and registered on his hotel register; that she signed the name “Mrs. C. 0. Evert, Fort Worth,” and he assigned her to room 22, he marking opposite her name the figures 22. He had the register with him on the stand while he was testifying, which was then introduced in evidence. After so testifying and identifying appellant as the woman who had so registered and signed, this occurred: “Is her name there now? A. It ,is not. Q. What has become of it? A. Some fellow has erased it. By Cunningham :' We don’t know if her name is there, if it is not there why it is not admissible unless they can connect her with it in some way. I understand that we have some photographs and we have no objections to them, but we do object to them making any proof of anything that has been done on that, it has not been in her possession, unless they can connect her with it some way. Q. Mr. White, did counsel for the State cause you to have photographs of that record taken soon after that name was signed there? A. Yes, sir. Q. Examine that (hands him photo) and see if that is a correct photograph of the record as it was when she signed there. (Witness takes and examines the photo.) A. As to the condition it was in and the condition it is now. A. Yes, sir; all the other names are there but Mrs. C. C. Evert. Q. All the other names on the book are there but Mrs. C. C. Evert. Is this a correct photograph as it was before her name was off of the record? A. Yes, sir. Higgins: We offer the photograph. Cunningham: Ho objections. Q. The name Mrs. C. C. Evert, Fort Worth, 22, is that the place that she signed there? A. Yes, sir. Q. On the original record? A. Yes, sir. (Photograph is now shown to the jury.) Q. How, Mr. White, how long did that record continue to look like she made it there before it was erased by someone? Cunningham: We object to it unless they can connect the defendant with the erasure, for she was in jail there for a good while. Higgins: We can not connect her with it. Court: You can state what was the original condition and what it is now. Snodgrass: We want to except to the introduction of any changed condition now on the ground that that character of testimony is calculated to prejudice the rights of the defendant. The court: It is already in. By Snodgrass: We ask the court to exclude it on the ground witness does not pretend, there is no pretense, that the defendant or anybody acting as agent for her had anything to do with changing it, and we further ask the court to instruct the jury specifically that they can not consider the statement that it is changed, or to its changed condition as any evidence against the defendant. (The bill specifically states as a fact, There was no testimony by any witness showing that, the defendant or anyone authorized by her, had made said erasure.’) The court: Objection is overruled. Snodgrass: We except to the action of the court. Q. How, Mr. White, after she came- did you assign her a room, after she had signed the register ? A. Yes, sir. (Later in the trial the following occurred): By Higgins: We have come to the conclusion that the register itself, and erasure shown, the erasure made subsequent to the time of her signing it, might not be admissible, and we will ask the court to withdraw the register from the jury so it will not be in, unless they will withdraw their objection to it. Snodgrass: We do not object to the register, we just object to showing there was a change made in it. Higgins: We ask the court then to ask the jury not to consider that there had been a change in it. Court: If both of you want it I will exclude it. Do you (addressing counsel for defendant) join in this motion, they have made a motion to exclude testimony of the witness White. Snodgrass: With reference to the register having been changed we made a motion. The court: Do you renew your motion here? Snodgrass: Yes, we objected to it at the time. Court: ■ Gentlemen, on motion of both parties, the statement of the witness White that the register had been changed, and all testimony along that line about the register there showing on the register C. C. Evert, the statement that the register had been changed, is excluded from your consideration, and you will not consider it for any purpose whatever. The court approved this .statement from the stenographer’s notes to the bill. It shows the correct way the matter came up and was disposed of, the register with the erasure was admitted without objection.”

How what are the facts as shown by this bill? They are: Mr. White, the hotel proprietor, swore that appellant came to his hotel alone at night on January 19, 1914, and registered in the name of “Mrs. C. 0. Evert, Fort Worth.” He had the hotel register with him, which was identified by him as such at the time. The best evidence-of the fact was the hotel register with her signature thereon. This was the very first testimony on that subject. If the register had not then been introduced the jury would not have understood it and perhaps would have doubted White’s testimony of the fact. Of course, the appellant herself had not at that time testified and the State could not know that she would do so. Hence, the State asked Mr. White if her name was then on the register and he answered that it was not. And when asked what had become of it, he said: “Some fellow has erased it.” Ho intimation by this that she had done so, and as immediately expressed by her attorney, Mr. Cunningham: “We don’t know if her name is there, if it is not there, why it is not admissible unless they can connect her with it in some way.” Then stating that they had liad photographs taken of it when it was there, and further showing that the register had not been in her possession and that she had been in jail for some time. The State’s attorney at once stated specifically that they could not connect her with the erasure, and the bill states clearly as a fact, that there was no testimony by any witness that she or anyone authorized by her, had made said erasure. In our opinion the register was clearly admissible under the circumstances of this case and at the state of the trial when it was admitted. The ground of objection was that the register in its changed condition with her name erased “is calculated to prejudice the rights of the defendant.” The whole matter shows that the State specifically admitted that they could not connect her with the erasure and did not attempt to do so. But suppose that the register was inadmissible. Hnder the circumstances and the proof made, it could in no possible way have injuriously affected the appellant: that she so registered at the hotel under that assumed name is in no possible way disputed. She swore it herself. Her identity, or that she was the person who killed the deceased, is in no possible way disputed.

Again, suppose the register with her name erased was not admissible. It unquestionably was thereafter withdrawn from the jury by the express consent of the appellant with the consent of the State and any possible harm that it could have caused appellant was cured by its withdrawal.

The rule is, as contended for by appellant, that where illegal testimony of a material character which is calculated to influence or affect the jury adversely to the appellant, is admitted over his objections at the time, the withdrawal of it later will not cure the error. The appellant cites authorities to that effect and also Mr. Branch lays this proposition down and cites many authorities from this court to sustain it in section 322 of his Criminal Law.

But it is as equally well settled and the rule, that if th'e testimony is not of a very material character and not likely to prejudice the jury, the error in admitting it is cured by withdrawing it. This correct rule and the application of it, is clearly and well established by the many decisions of this court. We cite only some of them. Miller v. State, 31 Texas Crim. Rep., 609, 21 S. W. Rep., 925; Hatcher v. State, 43 Texas Crim. Rep., 237, 65 S. W. Rep., 97; Robinson v. State, 63 S. W. Rep., 869; Trotter v. State, 37 Texas Crim. Rep., 468, 36 S. W. Rep., 278; Jones v. State, 33 Texas Crim. Rep., 8, 23 S. W. Rep., 793; Morgan v. State, 31 Texas Crim. Rep., 1, 18 S. W. Rep., 647; Sutton v. State, 2 Texas Crim. App., 342; Roberts v. State, 48 Texas Crim. Rep., 210, 87 S. W. Rep., 147; Martoni v. State, 74 Texas Crim. Rep., 90, 167 S. W. Rep., 351; sec. 1120, White’s C. C. P.

In Hatcher v. State, supra, this court said: “Some of the cases hold that the exclusion of such testimony (inadmissible) will not cure the error, while others hold the contrary. In such a conflict the true rule would seem to be that, if the admitted testimony is of such