MOORE, v. THE STATE

McMahon McMahon, for appellant. — 1. We will consider the action of the court in sustaining the district attorney's objection to the witnesses offered by appellant to show he was a good shot with a pistol. The objection of the district attorney was that it was immaterial and irrelevant. This objection we contend is not well taken, and that the court erred to appellant's prejudice in sustaining it. This testimony, we are of opinion, comes clearly within the general rule that the evidence must correspond to the allegations and be confined to the issue. But we submit, that if it does not come within the general rule it comes within the exception to the general rule, which is, that when the knowledge, motive, or intent of a party is a material fact in issue, collateral facts tending to show the knowledge, motive, or intent of a party are admissible. In this case the specific intent to murder is the gist of the offense, and hence the appellant has the legal right to have every fact or circumstance, however weak, go to the jury, which will tend to explain his intention in assaulting Clark. Francis v. The State, 7 Texas Crim. App., 501; Marshall v. The State, 5 Texas Crim. App., 290; Persons v. The State, 3 Texas Crim. App., 243; Pridgen v. The State, 31 Tex. 425; Gilbraith v. The State, 41 Tex. 567 [ 41 Tex. 567]; Cesure v. The State, 1 Texas Crim. App., 19; Heard v. The State, 9 Texas Crim. App., 26; Green v. The State, 12 Texas Crim. App., 58.

These decisions reaffirm the rule laid down by Mr. Greenleaf, who says: "Cases of this sort, therefore, instead of being exceptions to the rule, fall strictly within it." 1 Greenl. on Ev., sec. 53. Mr. Greenleaf further says: "It is not necessary, however, that the evidence should bear directly upon the issue. It is admissible if it tends to prove the issue, or constitutes a link in the chain of proof, although it might not justify a verdict in accordance with it." 1 Greenl. on Ev., sec. 51a.

In view of these decisions and the peculiar circumstances of this case, can this court say that the court below did not err in refusing to permit appellant to prove by these witnesses that he was a good shot with a pistol? We think not.

The theory of the State is, that appellant shot at Clark with the intention of killing him. The theory of the defense is, that appellant shot to scare Clark. It is clearly shown that three shots were fired by appellant. At the first shot appellant was thirty steps from Clark, at the second a short distance further, and the third about 100 yards from him. Clark was not hit. Then under these circumstances, would not the fact that appellant was an expert shot with a pistol be a circumstance in the chain of proof tending to show appellant did not intend to kill Clark? This circumstance would have corroborated the statement of appellant and rendered it more probable. Why? Because if an expert shot, it would seem with the opportunity afforded him he would more than likely have struck Clark. This is nothing more than a logical conclusion. This circumstance being favorable to the theory of appellant, did he not have the right to have it placed before the jury for their consideration? This question has been answered in the affirmative by this court in an unbroken line of decisions. In addition to those heretofore cited, we wish to call the court's special attention to the following decisions: Pridgen v. The State, 31 Tex. 429; Myers v. The State, 24 Texas Crim. App., 341; Bowers v. The State, Id., 549.

2. Appellant's first bill of exceptions complains of the remarks of the court in the presence and hearing of the jury, when ruling upon the admissibility of the evidence offered by appellant to show he was an expert shot with a pistol. By reference to the statement of facts and this bill of exceptions it will be seen that appellant had proven by Fred Scott and Anderson Phillips that he was a good shot with a pistol. These witnesses had been permitted to testify without objection. After these witnesses had testified appellant offered other witneses to prove the same facts, when the district attorney objected, on the ground that the testimony was irrelevant and immaterial. In sustaining this objection the court made use of the following remarks: "It is too late now, but if you had objected in time I would have sustained your objection to the witnesses who testified as to the shots, for it has nothing to do with the case." To these remarks appellant's counsel excepted, because calculated to injure appellant before the jury. The court then made use of the following remarks: "The question as to whether the defendant was a good shot or not has nothing to do with the case. I don't care whether he could hit a spot on a tree or whether he could hit the man in the moon." Appellant's counsel also excepted to these remarks on the same ground. That the court erred in making use of these remarks there can be no question. "In ruling upon the admissibility of evidence the judge shall not discuss or comment upon the weight of the same or its bearing in the case, but shall simply decide whether or not it be admissible. Nor shall he at any stage of the proceedings, previous to the return of a verdict, make any remark calculated to convey to the jury his opinion of the case." Code Crim. Proc., art. 729; Moncallo v. The State, 12 Texas Crim. App., 171; Copeny v. The State, 10 Texas Crim. App., 473; Mavo v. The State, 7 Texas Crim. App., 343; Wilson v. The State, 17 Texas Crim. App., 525; Rodriguez v. The State, 23 Texas Crim. App., 503; Crook v. The State, 27 Texas Crim. App., 241.

It is true that this court has held that a violation of the above article will not require a reversal of the case where there is no injury to the defendant. Rodriguez v. The State, 23 Texas Crim. App., 507; Copeny v. The State, 10 Texas Crim. App., 473; Wilson v. The State, 17 Texas Crim. App., 525.

But we submit the correct rule is laid down by Judge Wilson in Crook v. The State, 27 Texas Criminal. Appeals, 241, where he says that it is material error when such remarks might prejudice the defendant. The case at bar differs from those cases where this court held the remarks of the trial court were not prejudicial to the defendant, because in those cases the evidence was not before the jury, or else its remarks were not upon the weight of the evidence or its bearing in the case. In this case the remarks of the court were directly upon the weight and bearing in the case of evidence already admitted, as well as its remarks upon the evidence offered by appellant to prove he was a good shot with a pistol. Then we contend that both the letter and spirit of this article have been violated to the prejudice of appellant. We think these remarks are objectionable on another ground, that they were calculated to convey to the jury the court's opinion of the case. From these remarks the jury may have concluded that the court did not believe appellant's defense, and therefore they were influenced in finding their verdict. "So jealous are the courts of the right of trial by jury in some of the States, particularly in criminal cases, that an expression of opinion thrown out by the judge in the hearing of the jury, while deciding a question of law in the case, has been held ground for reversing the judgment. For it is evident that the opinion of the judge can be as effectively conveyed to the jury by expressing it in their hearing while ruling upon what purports to be a question of law, as by imparting it in what purports to be a declaration of law framed for their guidance. It has been accordingly held that a judge has no more right to volunteer before the jury his opinion upon a material fact in controversy, while deciding a question of law on the trial, than he has to charge in respect to such fact. * * * Juries, particularly ignorant juries, watch with great eagerness any expression of opinion from the bench, find are very apt to follow it, whether it is given in the form of an instruction to them or whether it falls from the lips of the judge as a casual remark. Hence, in those courts where the province of the jury is jealously guarded, light or careless expressions of opinion upon the part of the judge which have a tendency to intimate to the jury his opinion of the evidence have sometimes been held grounds for reversing the judgment." Thomp. on Charging the Jury, secs. 53, 54.

If these remarks do not constitute material error, then it would seem that no remarks of the court while ruling upon the admissibility of testimony would constitute such error, and article 729 of the Code of Criminal Procedure is a nullity.

R.L. Henry, Assistant Attorney-General, for the State.