
    JOHNSON v. STATE.
    (No. 8511.)
    (Court of Criminal Appeals of Texas.
    June 4, 1924.
    Rehearing Denied June 27, 1924.)
    1. Homicide 166(6) — Testimony admitted to show motive as against plea of accidental shooting held prejudicial.
    Where defense was accidental shooting, admission, to show motive, of testimony of witness, deceased’s daughter, of an alleged improper advance toward her by accused, which witness threatened to communicate to deceased, held prejudicial error where it appeared accused knew alleged incident was not communicated, to deceased, and'it was only remotely possible that he feared incident might be communicated to deceased.
    2. Witnesses <@=>379(3) — Statement reflecting merely opinion of witness inadmissible for purpose of impeaching him by showing contradictory statements.
    A statement which reflects only the opinion of the witness sought to be impeached by showing contradictory statements is inadmissible under the guise of impeaching evidence.
    3. Criminal law <$=>419, 429(1), 450, 1169(1)— Admission of opinion and hearsay testimony under guise of impeaching defense witness reversible error.
    Where, in a homicide prosecution, in which defense was accidental shooting, it appeared defense witness, accused’s father, was not present when homicide occurred, testimony of A., admitted to impeach father, that latter had told A. and his wife, not in accused’s presence, that accused had some difficulty with deceased, and shot him there being no testimony that accused had made any such statement, held objectionable as opinion and hearsay testimony, and its admission prejudicial error.
    Appeal from District Court, McLennan County; Richard I. Munroe, Judge.
    Clarence Johnson was convicted of murder, and he appeals.
    Reversed and remanded.
    Price & Miller, of Waco, for appellant.
    John B. McNamara, of Waco, and Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   HAWKINS, J.

Conviction is for murder, punishment being assessed at confinement in the penitentiary for 60 years.

Appellant was indicted for the murder of his father-in-law, Bruce Porter. A number of questions are brought forward for review, but the honorable state’s attorney has confessed error relative to two of the matters thus presented, and they only will be discussed. In order that they may be properly understood the following condensed statement of the facts is here incorporated:

Appellant’s father (Wash Johnson) and'deceased were old and respected citizens of Mc-Lennan county, living on adjoining farms. Appellant had been married to the daughter of deceased about a year at the time of the killing. He was living upon and renting from deceased a part of his farm, appellant’s house being 300 or 400 yards from that occupied by deceased, and about the same distance from the home of appellant’s father. The killing occurred on the 28th of November, 1922, late in the afternoon. The first information of the occurrence was conveyed to Wash Johnson by appellant when he appeared at his father’s home apparently in an exhausted and excited condition, and reported to his father that Mr. Porter was shot, with a request that a physician be obtained. Mr. Johnson, Sr., made no inquiry as to the manner of the shooting, but immediately went to the home of deceased, leaving directions for appellant to get the automobile and secure a physician. According to appellant’s mother, she saw him as he approached the house running, heard the statement made to her husband, aided appellant in putting some gasoline in the car and trying to get it started. During the time they were putting gasoline in the tank she says appellant told her the shooting was an accident. No one was present at the home of appellant at the time of the homicide save him and his wife, both of whom testified that the killing was accidental. The state undertook to refute this by proof of circumstances which do not appear as cogent to us as they seem to have been to the jury, unless the testimony confessed by the state to have been erroneously admitted was appropriated much to the injury of appellant.

Over objection Mrs. Bewley (formerly Miss Porter) was permitted to testify that after the marriage of appellant and her sister witness had spent the night at their home on October 6th; that during the night appellant had come to her bed and undertook to raise her nightclothes; that, upon witness giving, an alarm, appellant’s wife remonstrated with him about his conduct, and that witness at the time told appellant she intended to report the matter to her father; that in fact she never did so, because she did not want to cause trouble, and that she never told anybody about it until after the killing. The objections urged to the receipt of this testimony were: First, that, if the assault in fact occurred, it had not been communicated to deceased, and therefore furnished no motive for a difficulty between him and appellant; second, because the facts in the case would show that the conduct of deceased towards appellant was such as to put appellant upon notice that, if such assault had in fact ever occurred, it had never been reported to deceased; third, because it was an effort on the part of the state to stigmatize appellant by showing an alleged crim-{nal act on Ms part; fourth, because it was not necessary for the state to rely upon circumstantial. evidence to connect appellant with the killing of deceased. Appellant and his wife specifically denied that any such assault as that testified to by Mrs. Bewley occurred. Mr. Branch, in his valuable Ann. P. O. at page 1046, under sections 1882, 1883, deduces from numerous authorities collated the following propositions:

Eirst. “Proof of an extraneous crime or disconnected transaction should not be admitted to show motive unless there is some logical connection between it and the particular act under investigation.”
Second. “The testimony of extraneous and disconnected matters which could only prejudice the jury against defendant is not admissible when the homicide is not shown to have grown out of any circumstance connected with such matters.”
Third. “When the acts or declarations proposed to be proven to show a motive for the commission of the alleged offense for which defendant is on trial are so remote as not to afford a fair inference for the existence of a motive to commit the act under investigation, proof of same should be rejected.”

Discussing the testimony pertinent to the foregoing propositions, we find nothing in the record to indicate that the relations existing between deceased and appellant had been anything but friendly. The evidence shows without dispute that they worked in the same field, and saw each other daily: that a few days after the alleged assault upon Mrs. Bewley appellant and his wife spent several days and nights at deceased’s home; that deceased had visited at the home of appellant á number of times between October 6th and the date of the homicide. There is nothing in theN record to indicate that if the assault upon Mrs. Bewley in fact occurred she had ever carried out her threat to report the matter to her father, or intended to do so, but, on the contrary, the positive evidence is all the other way. The testimony of appellant and his wife' is to the effect that a short time before deceased came to their house on'the occasion of the killing appellant had picked up a gun and started working with it in some way, when his wife called him to cut some wood; that he laid the gun on the table, and went to get the wood; that as appellant returned to the house with the wood he was joined by deceased, and they came in the house together; that deceased had his daughter put on a new hat she had bought that afternoon, and some friendly conversation occurred relative to it; that when deceased started to leave appellant again picked up the gun and began to work with it; that as deceased. went out the door his daughter made some inquiry relative to her mother, and just as deceased turned to reply to the question the gun was accidently discharged, causing the wound which resulted in his death.

The only theories we can conceive upon which the state could have contended the evidence given by Mrs. Bewley to have been admissible was either that the facts of the alleged assault had been communicated to deceased, or that appellant feared they would be communicated to him at some future time. The first contingency seems to be entirely removed. There was nothing whatever in the conduct of deceased towards appellant, as rSflected from this record, that would indicate deceased had the slightest idea of any such occurrence having taken place as that claimed by Mrs,. Bewley. The other contingency, that is, that appellant may have fedred she would communicate it to her father later, appears so remote and unreasonable under the facts of this case as to be entirely untenable as a probable motive for the killing. If such an assault occurred, and she made the threat to report it to her father, the natural and ordinary thing to have done would have been to make the report at the earliest opportunity. This was the next morning wlien she returned home. Appellant knew from the continued friendly relations between Mm and his father-in-law that no such report had been made by Mrs. Bewley at that- time nor a month thereafter.

The facts in Gardner’s Case, 11 Tex. App. 265, are very similar in some respects to those now before us, with the exception that the alleged improper conduct of the defendant in that case occurred only a short time before the killing. Over the objection of defendant the state was there permitted to prove that the defendant had made improper advances to deceased’s wife on the same night of, but prior to, the killing. They were made in the absence of deceased, and were never communicated to him. The evidence did not show or tend to show that deceased suspected anything was wrong in regard to that matter. Under the facts of that case it was held that such evidence threw no light upon the motive for the killing, and was not calculated to explain the conduct of defendant, he being fully aware that deceased was not informed of his conduct. Judge Hurt, in holding the reception of such evidence to have been erroneous, used the following language:

“There, could have been but one effect produced by this evidence, and that was to seriously prejudice defendant with the jury. He stood before them in a bad light; indeed, in the light of a wretch who had not only attempted to destroy , the conjugal happiness of deceased, but hail finally, in the presence of his wife, taken Ms life. This evidence, we think, was not only irrelevant, but was calculated to arouse the jury to such a degree of contempt for, and indignation towards defendant as would render them incapable of considering in an impartial light his defense, although it may have been a legal one.”

The foregoing language seems to he peculiarly applicable to the present case as we understand it. The jury should have been permitted to pass lipón appellant’s defense of an accidental hilling free from the prejudice which was naturally aroused by the statement of Mrs. Bewley, which was bound to have placed appellant in an unfavorable light, and which, if true, showed a lustful assault upon his sister-in-law.

The other matter upon which the state’s attorney has confessed error arose in the following manner: Wash Johnson, being called as a witness by appellant, testified that his son appeared at witness’ house apparently exhausted and in a much distressed state of mind, and said to witness: “Papa, Mr. Porter is shot, and get the doctor!” No other statement made then or later by appellant to his father was proven or attempted to be proven by the defense. On cross-examination the state elicited from the witness that his son remained at his house the night of the killing, and the next morning told witness the shooting was accidental. In response to further questions by the state witness said that on the night of the shooting, and after Mr. Porter had died, witness went to Mr. Aiken’s house to phone for an officer. He was then asked by state’s counsel, if, in reply to a question from Mrs. Aiken as to the cause of Mr. Porter’s death, witness did not reply in the presencé of Mr. and Mrs. Aiken: “Well, to tell you the truth, Miss Lizzie, he and Clarence had some trouble, and Clarence shot him.” Johnson denied making any such statement. Later Mr. Aiken, over appellant’s objection, was permitted to testify that Mr. Johnson had made such statement, the learned trial judge admitting it for the purpose of impeaching Johnson and limiting it to that purpose in his charge. The objections urged were that the witness Johnson was not present at the time of the killing, knew nothing about it or the cause of it, that the statement attributed to him by Aiken was the expression of an opinion, and purely hearsay. This testimony ought to have been excluded. Under the guise of impeaching evidence it is improper to get before the jury a statement which reflects only the opinion of the witness sought to be impeached, where an opinion would be inadmissible, or when the statement is clearly hearsay in character. The father of appellant was not present when the homicide occurred, and, if any trouble arose then between deceased and appellant, or if any existed prior thereto, it is not shown by the evidence, save only in the statement attributed to the father by the witness Aiken. This evidence is practically the same as that held to have been erroneously received in Drake v. State, 29 Tex. App. 265, 15 S. W. 725, and in Jones v. State, 89 Tex. Cr. R. 577, 232 S. W. 847. See, also, section 175, Branch’s Ann. P. C., and cases there collated. Again, if the state had sought to prove by Wash Johnson that appellant said he and deceased had trouble, and that he (appellant) had shot the deceased on that account, and had failed in its effort to elicit such evidence, it would scarcely be contended that, under the guise of impeaching Wash Johnson, the state could have supplied the missing evidence by proving by another witness that Wash Johnson had told him that appellant did make such statement (Vaden v. State [Tex. Cr. App.] 25 S. W. 777; Bryan v. State, 90 Tex. Cr. R. 175, 234 S. W. 83, and authorities therein cited; Ross v. State [Tex. Cr. App.] 45 S. W 808; Katz v. State, 92 Tex. Cr. R. 629, 245 S. W. 242); yet this is exactly the effect of the evidence admitted. Although there was no testimony before the jury that appellant had made any such statement to his father, the jury would naturally draw the conclusion that he had done so from Aiken’s evidence, although the purported conversation between Mrs. Aiken and Wash Johnson was in appellant’s absence, and at a time when Johnson did not himself claim to know any facts relative to the shooting save the bare statement appellant had made that “Mr. Porter was shot, and get a doctor!” Aiken’s evidence came within the rule of both objectionable opinion and hearsay testimony, and was hurtful to appellant.

The case should be reversed for both errors discussed. It is so ordered, and the cause remanded.

On Motion for Rehearing.

MORROW, P. J.

An examination of the state’s motion for rehearing and the authorities cited therein leaves us of the opinion that on the original hearing a proper disposition was made of the appeal.

The motion is overruled. 
      <@=>ITor otter cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes
     