Johh Surrell v. The State, 29 Tex. Ct. App. 321

WHITE, Presiding Judge. This appeal is from a conviction for, murder of the second degree. 1.

State’s witness Long on cross-examination was asked by defendant’s. counsel the following question, viz.: “Were you not a member of the . same lodge or order to which the deceased, Jeff Armstrong, belonged?”' To this question the witness answered: “I do not belong to any lodge or - order, and was not a member of any lodge or order to which the deceased belonged.” Defendant proposed to impeach the witness as to this matter by proving that he and the deceased were members of the same lodge or order, and based his right to do so upon the ground that it would affect the credibility of said witness, and furthermore would show the animus and bias of the witness in favor of the deceased and against the defendant.

The exceptions to the general rule that a witness cross-examined on. a matter collateral to the issue can not be subsequently contradicted by the party putting the question embrace bias, motive, animosity, etc. Whart. Crim. Ev., 8 ed., secs. 376, 477, and 485; Blunt v. The State, 9 Texas Ct. App., 234; Black v. The State, 9 Texas Ct. App., 328; Daffin v. The State, 11 Texas Ct. App., 76; Hart v. The State, 15 Texas Ct. App., 202; Watts v. The State, 18 Texas Ct. App., 381; Tow v. The State, 22 Texas Ct. App., 175. Mr.

Wharton says: “A witness may also be compelled to answer questions concerning his relationship to the prosecution or the defense, his interest in the suit, his capacity of discernment and expression, his motives, and his prejudices. He may be thus required to explain whatever would show bias on his part or incapacity to testify accurately. He may be asked, for instance, whether he did not belong to a secret society whose •object was to suppress a sect to which defendant belonged, the defendant being on trial for a riot in which sectarian prejudice was involved.

And .as to his relations to the defendant he may always be asked.” Whart. Crim. Ev., 8 ed., 477. But as presented to us in the bill of exceptions we are of opinion that the matter upon which it was sought to contradict the witness Long in this case was wholly collateral, and the evidence inadmissible. The fact that witness and deceased belonged to the same secret- order would not necessarily create even a presumption that this relationship would bias and prejudice the witness against the defendant because he had killed the deceased.

We are left entirely in the dark as to the nature, character, purpose, and object of this secret order, and the obligation it imposes upon its members towards each other in their relations to outside third parties. We can not presume, in the absence of any proof whatsoever, that the fact that parties belong to the same order necessarily prejudices them against the balance of the world, and renders them unworthy of credit in any ■controversy between one of their members and an outsider.

It is not ■ shown that defendant was in any manner involved in the objects or purposes of the organization, as was the case in the instance cited by Mr. Wharton, supra. As the matter is presented to us in the defendant’s bill of exceptions we do not think the learned trial judge erred in holding the matter collateral, and such as that contradictory evidence was not admissible to impeach the witness with regard to it. 2. Defendant's second bill of exceptions was reserved to that portion of the charge of the court which instructed the jury upon circumstantial evidence.

The objection is that the case was not one of circumstantial evidence, but that the proof was direct and positive, and that there was no question as to the mode and manner of the killing, or the attendant circumstances, or the identity of the parties. It is claimed that the-charge lacks any foundation in the evidence, and being therefore erroneous must, because excepted to, necessarily reverse the case whether injury to-the defendant on account of it be shown or not.

With regard to the charge and its character the now well settled rules. are that it must set forth distinctly the law applicable to the case—that-is, to the allegations and the evidence; that it must conform to and be limited by the allegations, and must be applicable to and also limited by the evidence. Code Crim. Proc., art. 678; Willson’s Crim. Stats., secs. 2335-2337; 25 Texas Ct. App., 723. If the charge rests the guilt of the-accused upon a state of case not made by the proof it will be erroneous.. Chamberlain v. The State, 25 Texas Ct. App., 398.

If there is no evidence to warrant a charge it will be error to give it, and if the error be-excepted to the conviction must be set aside, although the error may have been harmless. Willson’s Crim. Stats., secs. 2337, 2363; Briscoe v. The State, 27 Texas Ct. App., 193. Again, an erroneous charge, although it inures to the benefit of the accused, if excepted to constitutes reversible error. White v. The State, 28 Texas Ct. App., 71; Jenkins v. The State, 28 Texas Ct. App., 86; Habel v. The State, 28 Texas Ct. App., 588.

A charge upon circumstantial evidence is not required of the court unless the evidence relied upon by the State is purely and solely circumstantial in character. Johnson v. The State, 28 Texas Ct. App., 17; Huffman v. The State, 28 Texas Ct. App., 174; Self v. The State, 28 Texas Ct. App., 398; Clore v. The State, 26 Texas Ct. App., 624; Willson’s Crim. Stats., sec. 2342; Heard v. The State, 24 Texas Ct. App., 103.

In explaining the bill of exceptions taken to this charge the learned, judge says: “Defendant’s knife was found with blood on it immediately after the cutting, but no witness testified that he saw defendant cut the-deceased with the knife; hence the charge complained of.” This explanation is borne out by the record if the evidence be literally considered.

The facts were in such close juxtaposition that upon this point, had the court failed and omitted under the circumstances shown to have charged on circumstantial evidence, we should have held that the omission was not-an error, since such a charge was not required. But because a charge is-not required does not necessarily render it unauthorized and illegal. The court thought the charge called for; it certainly can not be said to be-prejudicial or even unfavorable to the defendant; on the contrary, if it had any effect at all it must have been beneficial to him.

Hot being unauthorized or illegal, and being favorable to the defendant, notwithstanding it might have been omitted, we hold that the giving of it does not con- ■ stitnte error, much less reversible error. 3. The charge of the court upon the issue of manslaughter was excepted to because the same failed to instruct the jury that they might consider threats, insulting words, or gestures in connection with other inadequate causes which, considered together, might constitute adequate cause, or be so found by the jury to reduce the homicide to manslaughter.

But defendant requested no written instruction to the effect stated. The charge of the court was sufficiently full and comprehensive on the law of manslaughter, especially in the absence of any requested written instruction amplifying it in the particular mentioned. Requested instructions are not required to be given by the court, even when correct, unless they are written and presented by the party desiring them. Code Crim. Proc., art. 679. We are of opinion that the law was fully and fairly submitted in the charge upon all the legitimate issues in the case.

We have found no reversible error in the record, and the judgment is affirmed. Affirmed. Judges all present and concurring.