
    Tom Dugan v. The State.
    No. 4823.
    Decided December 19, 1917.
    1. —Murder—Preliminary Statement—Rule Stated.
    The practice of allowing the defendant in a criminal case, preliminary to introducing his evidence, to make through his counsel an opening statement outlining his defense and the evidence thereof appears to have been followed from time immemorial, and is to put the jury to understand and apply the evidence as delivered. Following House v. State, 171 S. W. Rep., 206.
    
      2. —Same—Case Stated—Practice in District Court.
    Where, upon .trial of murder, the defendant before he introduced his evidence and when the State had rested, filed a written motion for permission of stating to the jury through his counsel the nature of the defenses relied upon by him and the facts to be proved in support thereof, the-motion should have been granted.
    3. —Same—Rule Stated—Discretion of Court.
    The correct rule is that there rests in the court the judicial discretion to control the preliminary statement and limit it to its proper scope, that when the accused in a timely manner seeks to avail himself of the privilege of making an opening statement, and does not seek to abuse the privilege by commenting upon improper or inadmissible facts or otherwise abusing it, it should be granted. Following White v. State, 181 S. W. Rep., 193.
    4. —Same—Charge of Court—Aggravated Assault.
    Where, upon trial of murder, the facts showed that the homicide took place in a sudden quarrel, that the poeketlcnife used was not in itself a deadly weapon and the intent of the defendant was a question of fact, the court should have submitted a charge under the law 'of aggravated assault. Following Bolden v. State, 73 Texas Crim. Rep., 577, and other cases.
    5. —Same—Evidence—Motive.
    Upon trial of murder where a witness for the defendant had given important testimony in his behalf, there was no error in permitting the State on cross-examination to show by the witness that he had manifested activity in trying to bring about a condition whereby two women who were State’s witnesses were to he made drunk and thereby discredited to the advantage of the defendant, to show the motive of the witness. Following Mason v. State, 7 Texas Crim. App., 623, and other cases.
    6. —Same—Rule Stated—Impeaching Witness.
    The rule is settled that in a criminal prosecution the State may show for the purpose of impeaching a witness for defendant that said witness has attempted to influence a witness for the State in favor of the defendant. Following Lowry v. State, 53 Texas Crim. Rep., 562, and other cases.
    7.—Same—Evidence—Bloody Clothing—Rule Stated.
    The rules of evidence exclude the bloody clothing where they tend to solve no controverted issue, but do not reject them where the contrary is true, and where such was the ease in the instant trial, there was no error, but no inflamatory argument with reference thereto should be made. Following Hubby v. State, 8 Texas Crim. App., 597, and other cases.
    Appeal from the District Court of Shelby. Tried below before the Hon. Daniel Walker.
    Appeal from a conviction of murder; penalty, twenty years imprisonment in the penitentiary.
    The opinion states the case.
    
      Sanders & Sanders, for appellant.
    On question of preliminary statement to jury: Bell v. State, 190 S. W. Rep., 732, and cases cited in the opinion.
    On question of aggravated assault: Pratt v. State, 59 Texas Crim. Rep., 644; Ward v. State, 70 id., 393, and eases cited in opinion.
    E. B. Hendricks, Assistant Attorney General, for the State.
    On question of bloody clothing: King v. State, 13 Texas Crim. App., 280; Thomas v. State, 45 Texas Crim. Rep., 115; Johnson v. State, 167 S. W. Rep., 737, and cases cited in opinion.
    On question of motive of witness: Crist v. State, 21 Texas Crim. App., 366; Sexton v. State, 48 Texas Crim. Rep., 498; Wilson v. State, 158 S. W. Rep., 1114.
   MORROW, Judge.

Appellant was convicted of murder and his punishment fixed at twenty years confinement in the State penitentiary.

He stabbed, deceased with a pocketknife, and the issues of self-defense- and manslaughter as well as murder were raised by the evidence and submitted to the jury in the charge of the court.

When the State rested and before the appellant introduced any evidence he filed a written motion or request as follows: “Here and now, in open court, presents this written motion, and asks the court for the permission, the privilege and the right of stating to the jury, through his counsel, the nature of the defenses relied upon by the defendant, and the facts which the defendant expects to be proved in their support.” This request was denied by the trial court. Exception was reserved, and in the bill there is embodied a recital of facts which the defendant says he would have stated to the jury through his counsel had he been permitted. The court, in his qualification, certifies that the motion was presented in due time and overruled, and that attached to it was a written statement, which we infer is the same as that mentioned above as embodying the facts which appellant desired to present to the jury. The court says that after reading the motion and the written statement attached thereto he overruled the motion. His further qualification is that except that the motion and statement were presented and overruled and excepted to, he does not verify the statements in the bill further than to say that the respective theories of the State and the appellant as developed by the evidence were conflicting.

The practice of allowing a defendant in a criminal ease, preliminary to introducing his evidence, to make, through his counsel, an opening statement outlining his defenses and the evidence thereof, appears th have been followed from time immemorial. Thompson on Trials, vol. 1, sec. 270, and notes; Bishop’s New Crim. Proc., vol 2, sec. 968, p. 791. As said in 12 Cyc., 570: “The proper function of the opening for the defendant is to enable him to inform the court and jury what he expects to prove.” “The purpose of the opening,” said Mr. Bishop, “is to put the jury in position to understand and apply the evidence as delivered.” The adoption of this practice is in this State made statutory in article 717, C. C. P., subdiv. 5, from which we quote as follows: “The nature of the defense relied upon shall be stated by counsel for the defendant, and what are the facts expected to be proved in their support.” Subdivision 3 of the same article says, “the district attorney shall state to the jury the nature of the accusation and the facts which are expected to be proved by the State in support thereof.” It has been held that this subdivision does not require the district attorney to make the statement. In that sense it is directory rather than mandatory. Horsley v. State, 24 Texas Crim. App., 35; Poole v. State, 45 Texas Crim. Rep., 348; Bell v. State, 190 S. W. Rep., 732. The same is true of subdivision 5, supra. While it says that the statement “shall” be made, it is construed to mean that the accused has the privilege of doing so, but it is not required that it be done. White v. State, 78 Texas Crim. Rep., 216, 181 S. W. Rep., 192. The procedure by which •a defendant in a criminal case may avail himself of this privilege is discussed in Owen v. State, 52 Texas Crim. Rep., 65; Meyer v. State, 41 S. W. Rep., 632; White v. State, 78 Texas Crim. Rep., 216, 181 S. W. Rep., 192; House v. State, 75 Texas Crim. Rep., 338, 171 S. W. Rep., 206. The right to make an opening statement is founded upon the practice at common law, and even in the absence of the statute is .recognized by the English and American courts as a privilege not to be arbitrarily denied. Wiley v. State, 52 Indiana, 421; State v. Bateman, 52 Iowa, 604, 3 N. W. Rep., 622; Meyer v. State, 41 S. W. Rep., 632; People v. Wilson, 55 Mich., 506, 21 N. W. Rep., 905; Thompson on Trials, vol. 1, art. 933; Bishop’s New Crim. P., vol. 2, sec. 968, and notes.

The correct view, we think, is that there rests in the court the judicial discretion to control the statement and limit it to its proper scope and that when an accused in a timely manner seeks to avail himself of the privilege of making an opening statement, and does not seek to abuse the privilege by commenting upon improper or inadmissible facts, converting it into argument, or otherwise misusing it, it should be accorded, and when its denial, under these circumstances, is properly brought before this court for review the denial will not be sanctioned. House v. State, 75 Texas Crim. Rep., 338, 171 S. W. Rep., 206.

In this ease the appellant appears to have acted upon the suggestion contained in the opinion of this court in White v. State, 78 Texas Crim. Rep., 216, 181 S. W. Rep., 193, and has brought before this court the fact that he sought to avail himself of the statute in a timely manner; that he was refused the privilege; that he advised the trial court of the scope of his proposed statement, calling attention to the fact that the issues in the case were such that it would aid the jury in understanding and applying the evidence, and this matter, including the substance of the proposed statement, is in the bill of exception. The fact that the motion made by appellant was accompanied by a written memorandum outlining his proposed statement did not militate against his right to make it, but on .the contrary, was appropriate in advising the trial court of its scope. We have found nothing in it which condemns it as improper. The court, as above stated, was vested with the judicial discretion to pass upon the proposed statement and the relevancy, of the matters of evidence therein suggested, but not with the discretion to deny the privilege of making a proper statement. Thompson on Trials, vol. 1, see. 933. We can not say that the proposed statement would not havé been beneficial to appellant in enabling the jury to comprehend his defenses, and apply the evidence thereto.

The homicide appears to have taken place in a sudden quarrel. Appellant’s claim is that he was defending his life against three assailants. The deceased was stabbed in two places; one wound was not fatal; the other severed, an artery. There is evidence that both were made from a position facing the deceased, whom appellant claims was attacking him with a chair. The pocketknife was not per se a deadly weapon. Its character is such and the intent of appellant were under article 1147, Penal Code, questions of fact. The issues were such, we think, as did not justify the trial court in refusing appellant’s request to instruct the jury on the law of aggravated assault. Bolden v. State, 73 Texas Crim. Rep., 577, and cases thére cited; Huddleston v. State, 70 Texas Crim. Rep., 260; Polk v. State, 60 Texas Crim. Rep., 150; Hightower v. State, 56 Texas Crim. Rep., 248.

A witness for the appellant gave important testimony in his behalf, and the State, on cross-examination, sought to show by him that he had manifested activity in trying to bring about a condition whereby two women, who were State witnesses, were to be gotten drunk and thereby discredit them to the advantage of the appellant. It is insisted that the refusal of the court to exclude this evidence was error, invoking the rule that it is collateral and not shown to have taken place with the knowledge of appellant, and, therefore, to be rejected, citing Michie’s Ency. Digest of Texas Crim. Reports, vol. 2, p. 598; also Branch’s Ann. Texas P. C., p. 92, and numerous cases there listed. The ruling of the court in permitting this cross-examination was, we think, not obnoxious to the rule laid down in the cases mentioned, but on the contrary, was consistent with the rule that permits the cross-examination ■of an adverse witness to show his bias and mental attitude and interest in the case to enable the jury to give to his testimony the proper weight. Mr. Branch, in section 163, page 92, of his Annotated Penal Code, says: “The motives which operate upon the mind of the witness when he testifies are never regarded as-immaterial or collateral matters. The adverse party may prove declarations of a witness which tend to show bias, interest, prejudice or any other mental state or status which, fairly construed, might tend to affect his credibility,” citing many cases, including Mason v. State, 7 Texas Crim. App., 623; Latham v. State, 75 Texas Crim. Rep., 575, 172 S. W. Rep., 808. A late case on the subject is Burnaman v. State, 70 Texas Crim. Rep., 361, 159 S. W. Rep., 244, which is also reported and elaborately annotated in 46 L. R. A. (N. S.), page 1101, wherein it is stated that the rule is settled that in a criminal prosecution the State may show, for the purpose of impeaching a witnes for defendant, that said witness has attempted to influence a witness for the State in favor of the defendant. Among the Texas cases cited in the note are Webb v. State, 58 S. W. Rep., 82; Pace v. State, 79 S. W. Rep., 531; Lowry v. State, 53 Texas Crim. Rep., 562; Owens v. State, 46 Texas Crim. Rep., 14, 96 S. W. Rep., 31; Erwin v. State, 67 Texas Crim. Rep., 108, 148 S. W. Rep., 589; Barry v. State, 37 Texas Crim. Rep., 302; Pierson v. State, 56 Texas Crim. Rep., 602. Other cases in point are Brown v. State, 72 Texas Crim. Rep., 33, 160 S. W. Rep., 375; Sorell v. State, 74 Texas Crim. Rep., 100, 167 S. W. Rep., 359; Moore v. State, 65 Texas Crim. Rep., 453, 144 S. W. Rep., 598.

Complaint of the refusal of the court to exclude the clothes worn by the deceased at the time of the homicide is urged. The rules of evidence exclude the bloody clothing where they tend to solve no controverted issue, but do not reject them where the contrary is true. Hubby v. State, 8 Texas Crim. App., 605; Milo v. State, 59 Texas Crim. Rep., 196, 127 S. W. Rep., 1028. Other cases cited in Branch’s Crim. Law, section 436, subdivisions 1 and 2. The contention of appellant was that the homicide took place out on a gallery of the house of Mrs. Lock, where he claims he was attacked by deceased and others; that of the State was that it took place in one of the rooms of the house. Hpon these conflicting theories there was evidence pro and eon. The deceased bled profusely; his clothes were saturated with blood. There was evidence -that there was very little or no blood in the room in which the State claims the stabbing took place. To meet the inference favorable to the appellant to be drawn from this evidence, the State used the clothes as tending to show that they absorbed the blood and prevented its escape and to thus account for its absence in the room. We can not say that they did not shed light upon this question, which was of importance in the case. We do not, therefore, think there was error in their introduction. They should not, on another trial, be used in argument to inflame the minds of the jnry.

As presented in the record and explained by the trial court, we do not find other bills showing error. , Because of those pointed out the judgment of the lower court is reversed and the cause remanded.

Reversed and remanded.  