
    DAVIS v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 26, 1913.)
    1. Criminal Daw (§ 364) — Evidence—Res Gestas.
    Where witnesses, who were walking along the road with defendant and his wife at the time he was alleged to have killed her, testified that she put her arms around him and drew him away from the remainder of the crowd, and shortly after was seen to sink to the ground, further testimony that defendant walked back to her, and told her to get up, and kicked her, was admissible as res gestae.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§■ 805, 808-810, 813, 816-818; Dec. Dig. § 364.]
    2. Criminal Daw (§ 469) — Examination of Experts — Opinion as to Intention.
    Defendant being accused of killing his wife by stabbing her in the neck, a question to an expert as to his conclusion as to whether the wound was inflicted purposely by defendant, or accidentally in a scuffle, was properly excluded, as not on a subject of expert testimony.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1059; Dec. Dig. § 469.]
    3. Criminal Daw (§ 1171) — Appeal—Harmless Error — Remarks of Counsel.
    Where, though witnesses were present at the time it was alleged that defendant killed, his wife by cutting her in the neck, none saw how or by whom the wound was inflicted, the remark by counsel that “the court will have to charge you that this is a case of circumstantial evidence, but as a matter of fact it is not,” standing alone, could not have been harmful to defendant.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 3126, 3127; Dec. Dig. § 1171.]
    4. Criminal Daw (§ 1171) — Appeaia-Habmless Error — Remarks of Counsel.
    Where defendant was accused of killing his wife by cutting her in the neck, as they were walking with others along a road, argument by prosecuting counsel that defendant’s counsel were claiming there was no motive in saying, “How do you know but that as defendant and his wife were walking along she accused him of being too intimate with some other woman, and you have a right to presume that she did,” was not of such a harmful nature as to require reversal.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 3126, 3127; Dec. Dig. § 1171.]
    5. Homicide (§ 254) —Evidence— Sufficiency.
    Evidence held sufficient to sustain conviction of murder in the second degree.
    [Ed. Note — For other cases, see Homicide, Cent. Dig. §§ 533-538; Dec. Dig. § 254.]
    Appeal from District Court, Ellis County; F. D. Hawkins, Judge.
    Charlie Davis was convicted of murder in the second degree, and appeals.
    Affirmed.
    See, also, 143 S. W. 1161.
    Clyde F. Winn, of Waxahachie, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. iSeries & Rep’r Indexes
    
   HARPER, J.

Appellant was convicted of murder in the second degree, and his punishment assessed at 10 years confinement in the penitentiary.

The evidence would show: That appellant and his wife and several other negroes had just left one Foster’s house, and were walking down, the road. That appellant struck another negro Woodson in the breast with his hand, and remarked; “He was the best God damned man in the world.” He had been drinking that day, and the testimony would Indicate that he was laughing when he struck Woodson, but would also indicate that his wife at this time put her arms around and drew him away from the remainder of the crowd, and appellant and his wife walked down the road together. Shortly she was seen to sink to the ground, and get up and walk a little piece further, when she sunk again, and appellant walked back to her, and kicked her. One of the witnesses, Henry Thomas, tells of the occurrence in the following language: “I was along over there when Lula Davis was killed. The first thing that attracted my attention was her squatting down. I was about SO yards from her at that time. After she got up, she walked about seven steps, and she fell to the right of the road on her face, and then Charlie, he was about 20 yards in front of her at that time, and he turned around, and said to her, ‘Get up and come on.’ She did not say anything. He turned around and came back, and got in about three steps of her, and says, ‘What in the hell are you doing laying here?’ and he kicked her. By that time I was in about three or four steps of her, and I told him, ‘Charlie, don’t kick that woman;’ and he kicked her again, and says, ‘Get up, God damn you.’ I says, ‘Charlie, don’t kick her any more.’ He says, ‘Yes; I kicked her, and whose damn business is it?’ says, ‘There ain’t nobody got anything to do with it.’ By that time the crowd had got up very close. I and Charlie then tried to help her up. We turned her over, and I saw the blood on her dress. I says, ‘Charlie, you have cut this woman'.’ He says, ‘No, I haven’t; I haven’t raised my hand.’ I says, ‘Yes, you have; let me see your pocketknife.’ He ran his hand in his pocket, and gave me his pocketknife. I says, ‘Yes, you have; here’s the blood on your pocketknife.’ I showed the pocketknife to several others. He said he hadn’t done anything to her at all — said he hadn’t raised his hand. That was fresh blood 'on the knife. Defendant said, if he had stayed at home this morning as his mind led him to, none of this would have occurred. That’s all I remember that I saw there or heard. Deceased did not live but about three or four minutes. I saw her. She was stabbed in the neck.”

The woman had been stabbed with a knife in the hollow at the base of the neck, severing, it seems, one of the carotid arteries. No one saw the blow struck, but the record makes it evident that the wound had been inflicted from the time the deceased drew appellant out of the crowd to where she fell and died, a very short distance. Appellant testified that he and his wife were walking down the road, when his wife (deceased) asked for his knife, and then recites the events as follows: “I says, ‘Well, my knife is in my pocket.’ We were armed up together. She just run her hand down in my pocket, and got my knife. I had on a pair of overall pants and jumper. A few minutes after she got the knife I noticed her opening a snuff box with the knife. She had the knife open, and run the knife up under - the lid that way, and pushed the lid up that way. I ■ noticed her opening the snuff box with the knife, and I heard the money rattling in her hand. I pays, ‘What are you doing with my money?’ She says, ‘Oh, yes, you told me you did not have no money.’ I asked you, ‘Let’s go over to papa’s —over to Koser.’ I says-, T told you that I was just joking when you gave me the money;’ and we got to tussling and scuffling over the money, and I got two or three dollars of the money. She says, ‘Oh, I will give it back to you; it is all right any way.’ So we just quit tussling, and she put the money and knife all back in my pocket, and we just armed up and went on down the road together. As we went on down the road after we got through playing, we went on down the road, and then I says to her— She says to me, ‘You know these people sure treating us nice to be strangers to us.’ I says, ‘Yes; they are treating us awful nice to be strangers to us;’ and then she spoke about getting Lula Franklin to go over to Roser with her, over to her papa’s. I says, ‘Well, you can get her to go if you want to. It don’t make any difference to me.’ She says, ‘Well all right, I will get her to go over there.’ We were walking along, and all at once she just squatted down. I never thought nothing. I just walked on. I thought she was fastening up her shoes or something of that kind —tying up her shoe. We were walking armed up, and she went down that way, and had her hand on. her shoe that way. 1 looked back, and seen she had her hand on her shoe. I kept walking on slow down the road. When I looked around, I says, ‘Gome on, don’t you want to be with me?’ That is when I seen her squatting down, and I says, ‘Come on, don’t you want to be with me?’ She says, ‘Sure I want to be with you;’ and she got up, and started where I was, and, before she got where I was, she just eased right down, and that is the point where she fell and died. When I noticed her lying down on the ground and looked back the last time and seen her laying on the ground, I says: ‘What is the matter with you? Get up from there. Ain’t nothing the matter with you?’ When she did not say anything, I walked up and put my foot against her, and says: ‘Get up from here. What do you want to do this way before all these folks?’ Of course, it made me kind of angry to think she would lay down that way before all them strange people. I took hold of her with my hand, and pulled her up, and when I pulled her up, I discovered there was blood running down off of the collar of her dress. The first time I discovered any blood or anything was when I pulled her up. First time I found out she was hurt in any way was after she was laying down on the ground after she was dead at the point where she died. When X saw her on the ground, I told her to get up, and I reached down and caught hold of her with my hand when I saw she was hurt. That is the first time I knew she was hurt, and, after I knew she was hurt, I just thought then by me and her playing and scuffling over the knife. I knew that was the only way she got hurt — by me and her scuffling.”

It is thus seen that appellant by his testimony would have the wound inflicted in an accidental manner, while they were scuffling over the money. On this issue the court instructed the jury: “You cannot convict the defendant in this case unless you believe from the evidence (1) that .the defendant inflicted the mortal wound upon Lula Davis; (2) that he did it intentionally, with implied malice aforethought. If you have a reasonable doubt as to whether defendant inflicted the mortal wound upon Lula Davis, you will acquit the defendant, or if you believe from the evidence that defendant did inflict the mortal wound upon Lula Davis, but should have a reasonable doubt as to whether he did it intentionally, you will acquit the defendant ; or if you believe Lula Davis herself inflicted the wound purposely or accidentally upon herself, or if you have a rea- ' sonable doubt thereof, you will acquit the defendant.” In addition to this, at the request of appellant, the court gave the following special charge: “You are further instructed that if you believe that Lula Davis was accidentally stabbed in a tussle with defendant over some money, or that she stabbed herself while engaged in a scuffle over some money, or that she in any way inflicted the wound upon herself, you will acquit the defendant, and say by your verdict ‘not guilty’; and, if you have a reasonable doubt thereon, you will acquit the defendant.” Thus it is seen that the court presented the defense of appellant as made by his testimony as favorably as it was possible to do.

However, appellant has several bills of exception in the record, the first that the court erred in permitting witnesses to testify about appellant kicking his wife, and the language used by him at the time he did so. By the testimony above copied it is shown that not more than 20 yards were traveled from the time the wound was inflicted until the time appellant kicked his wife and used the language attributed to him. This, we think, is' conclusive that it was res gestae of the transaction ; in fact, it was part of the transaction itself, and the testimony was properly admitted. In Branch’s Grim. Law the rule is said to be that if the acts and declarations appear to spring out of the transaction, if they elucidate it, and if they-are made at a time so near it as reasonably to preclude the idea of deliberate design, then they are to be regarded as contemporaneous, and are .admissible, citing Griffin v. State, 40 Tex. Cr. R. 314, 50 S. W. 366, 76 Am. St. Rep. 718; Castillo v. State, 31 Tex. Cr. R. 152, 19 S. W. 892, 37 Am. St. Rep. 794; Hobbs v. State, 16 Tex. App. 521, and other cases. It is also said by this author that animus, motive, and ill will is never a collateral or irrelevant inquiry, and the testimony as to the acts and conduct of appellant at that time would tend strongly to show the state of feeling toward the deceased. Therefore it was not necessary to limit the effect of such testimony or charge thereon at all. Branch’s Grim. Law, § 367; Davis v. State, 143 S. W. 1161.

Appellant introduced Dr. West and Dr. Oheatham as expert witnesses, and the evidence would authorize the conclusion that they should have been permitted to testify to all facts to which an expert witness would be permitted to testify. Appellant, while Dr. West was testifying, asked a number of questions seeking to elicit the opinion of Dr. West as to whether or not the wound in the neck, under the circumstances in this case, was intentionally inflicted or accidentally done; one question being, after stating the premises, “What would be your conclusion as to whether that wound was placed upon her purposely or intentionally by defendant or inflicted upon her accidentally in the scuffle over some money?” This was not a subject of expert testimony, and the court did not err in sustaining the objection. The medical knowledge of a man would not aid him in determining whether a wound in the neck was intentionally or accidentally made. And, when Dr. Oheatham was testifying, appellant began to lay a predicate calling for an opinion as an expert when the court stopped him. Appellant objected, and reserved a bill of exceptions, stating that he “excepted for the reasons that it is a matter of expert testimony, going to show whether or not the wound was accidentally inflicted, or had been inflicted purposely and intentionally by the defendant in a fight with his wife, and it being a proper question of expert testimony, throwing light on the question as to whether or not the wound was accidentally inflicted in the scuffle such as defendant relates, or whether it was purposely inflicted as the state contends.” This was the objection stated to the ruling of the court at the time, and, as it appears he was trying to elicit Dr. Cheatham’s opinion as to whether the wound was accidentally or intentionally inflicted, the court did not err in the matter. If the appellant expected to elicit any legitimate expert testimony, he should have so informed the court at the time, and, as he did not do so during the.trial of the case, it would be too late to do so after the verdict had been rendered.

It appears that the prosecuting officer during the course of his remarks said: “The court will have to charge you that this is a case of circumstantial evidence, but as a matter of fact it is not a case of circumstantial evidence.” Appellant excepted to the remarks, and requested the court to instruct the jury not to consider same. There are none of the other remarks of the county attorney in this connection shown, but one would naturally conclude that he perhaps followed it up with other argument as to why he thought the testimony placed appellant and deceased into such juxtaposition to each other as to take it out of the rule requiring a charge on circumstantial evidence. Be that as it may, the remarks as copied in the bill of exceptions, isolated and alone, are not such remarks as could have been harmful to defendant.

Agam, appellant objected to the county attorney using the following language in his argument: “They (appellant’s counsel) are talking about there being no motive in this case. How do you know but. that, as Charlie Davis and his wife were walking along down the road there, she accused him of being too intimate with some other woman, and, gentlemen of the jury, you have a right to presume that she did.” The county attorney ought not to have used this language, but could the use thereof be of that harmful nature that it and of itself would call for a reversal of the case? We do not think so. The only objectionable part is wherein he told the jury they had a right to so presume. This is not the law. A jury has no right to presume anything against a defendant having no foundation in the evidence.

Appellant earnestly insists that the evidence is insufficient to sustain the verdict. He insists that, if appellant inflicted the fatal wound, deceased would have run, would have cried out, and made some demonstration. Generally this is true, but human experience shows there is no accounting for the conduct of a wife when her husband ill uses or mistreats her, and, the evidence clearly to our minds indicating that appellant inflicted the wound, we will not disturb the verdict, for, if he did so, he offers no excuse or justification for so doing. The place where the wound was inflicted, if the knife was in the hands of his wife, as he contends, it would be almost a miracle if she inflicted it in a scuffle — at the top of the shoulder and base of the neck.

The judgment is affirmed.  