Chapman v. StateChapman v. State
- Reporters:
- , , ,
- Before:
- Davidson, Prendergast
*1 ms.] Chаpman v. 591 The State. to allow refusing was no error in certainly judge
There when county attorney of the of the claimed remarks a bill exceptions shqwn thereto at taken that no was exception conclusively was two attention until to the judge’s wаs The matter called time. trial. motion for new and then his amended trial, after the weeks matter, this and specially contested stated, As the county attorney language charged. used denied assign- many each of have not discussed separatеly appellant’s We out pointed all of them. No error ments, though we have considered The case. court to reverse that would authorize require is affirmed. judgment Affirmed. 17, 1915.—Reporter.] denied November
[Rehearing Chapman v. The Albert State. October 1915.
No. 3728. Decided Trial—Diligence. —Bigamy—Continuance—Motion 1. New for If it be conceded that first a continuance was not for trial, compliance for new yet strict shown on motion was testimony was which attached witness that affidavit the absent material, a facts of granted new trial should been under the instant case. Application. 2. Evidence—Second —Same—Cumulative only It subsequent applications for second and continuance that pro- place practice rule of cedure, in our cumulative evidence finds criminal where defendant is himself or his immediate relying regarded the rule with reference to cumulative testify be if who are in no related strictness that it would the witnesses wise expressing opinion. Presiding Judge, no Prendergast, Evidence—Marriage—Divorce. —Same—Insufficiency of 3. time, at the time married a tnat he defendant believed when second marry, right laboring if he divorced he had from Prendergast, Presiding Judge, expressing opinion. no of fact. under mistake Lamar. Tried below before District Court from the
Appeal H. Denton. Hоn. Ben three imprison- bigamy; penalty, years a conviction from Appeal ment in the penitentiary. the case. states opinion Hutchison, & Black Ramsey, & Roach, and Lattimore Chas. v. continuance: Roquemore On question
Ramsey, appellant. id., v. 54 Pierson State, 617; 595; Smith Rep., Crim. State, 54 Texas id., 343. 61 State, id., v. 609; Sharp State, 56 v. State, Baines v. Texas trial: 42 new motion for question On 435; State, v. 48 id., 566; id., State, Long v. 43 510; LeRoy Rep., Beports. 592 Texas 77 Criminal [October, State, Morgan id., 549; v. 54 Thomas v. State, id., 51 v. 330; Long State, id., 462; State, Freeman v. 505; S. W. v. Rep., Snead State, 100 922; 1173; S. W. Rеp., v. Smith 142 S. W. Rep., Creacy State, 166. S. W. *2 question On State, of absent materiality testimony: McAdams v. 24 Texas 86; Crim. App., State, id., 247; MeCline v. 25 Hammond v. State, id., 28 205; State, Tyler id., v. 205; 13 Yantis v. Texas State, 49 Crim. 404; Rep., id., v. Day 62 448. State, On question of cumulative testimony: Morgan State, v. Texas 54 Crim. 549; Rep., State, v. 85 Gaithright 1076; v. Rеp., S. W. Phipps 31 State, S. W. 397. Rep., McDonald, C. C. Assistant General, for State. Attorney On questionof State, 181; cumulative evidence: Fisher 4 v. Texas Crim. App., Law, State, Fulkerson v. 57 Texas 80; Crim. Branch’s sec. 257. On question of diligence: Texas Crim. Kirkpatrick Rep., 17; Branch’s Crim. sec. 257. Law, Appellant was DAVIDSON, convicted his Judge. bigamy, pun ishment being assessed three years at confinement in penitentiary. One of the serious and the most questions, serious perhaps question in case, was the action of the court reference to the aрplication for a continuance as in and action originally presented, a subsequent overruling motion for new connection in application for continuance. The evidence shows that defendant married Laura 1903, Purvis and and that childrеn, separated had some they they and were not more, 1911, for three and in living together years or Miss mar married July, Grayson Lamar County, previous to Miss Purvis Erath riage His having County. applica occurred tion was based the absence of Johnson and his former Boy Laura The court evidently’ overruled Chapman.
account of The went diligence. want of what deemed sufficient to trial. it was wife the trial of the case testified his On former a divorce.. had to the effect that she had written mother appellant’s that his had- defendant Boy It also Johnson informed developed having a letter, He himself introduced wife had been divorced. also first, inform behalf, wife, Laura, his from taken stand in own his divorce him him that she had from and of the fact obtained ing was introduced wеnt before of the children. This letter and custody sought it was attacked, This and as evidence. letter the jury to that effect there was introduced and show it was letter received brother-in-law. especially some of by language: and is in the 1911, following was dated June 25. by appellant “Purvis, Texas, 25, June 1911. you lines to let know that the I will write few A. Chapman: A. that I well and I want doing say got my well and children are Chapman v. The State. J mine, divorce are no so will close. Ton you longer you from write Laura Goodbye, Chapmаn.” children.
The affidavit Laura is as follows: filed by Chapman Mexico, “State of New ¡Roosevelt. County authority, undersigned before me the
Personally appeared that ‘1 was wife says sworn Chapman, being deposes 1911, 25, A. him a letter under date of June A. and I wrote Chapman, Eastline, him same to at Purvis, Texas, addressed while I was ” Then follows the Texas, the following.’ and in this letter I told 27th on the Chapman This is sworn letter above copied. in and Jr., notary M. Compton, public before C. April, day ¡New also letter is Mexico. The following County, Roosevelt State of new trial: to the motion for attached *3 Roach, Paris,
“Mr. Texas. Chas. case. to Alfred’s will lines in you regard I write few Kind Sir: and will send all to morning from Mr. a letter Lipscomb I had ask, want to did Alfred thing but one I now. There isn’t you reall y should Worth, in or is it false. I think I Ft. anоther woman marry to not hesitate see Alfred he would the and if I could truth, know their that will do all in here, two brothers lawyers two tell me. I anything, can or the do Comptons so time I Mr. free gratis any power stand and time am needed on the on us I any hesitate don’t .сall more in I could do be there person. there-1 will and can possibly get here, Stephenville, and have for more evidence I can wrote there than and Sagesor soon. Mr. their evidence Jim I will Texas, guess get I and brothers impeach minister. I want my a Baptist R. P. Ogen, be the relation both, a slave for all if I was possible. brother-in-law same Alfred to continue and me they married and wanted fore I was am to the of their height him it would so hate and be they objected, not threats. did those They him. have even made They bition pen and not would kid Alfred, said he was only they me to marry want and one word say did not of me. father My take care know how to and a kick first raised brothers my with marriage; my satisfied know failed to thinks what the sons mother my then Palmer and then left and dad is six wore the boys pants, Her and are marked out. flinch. that would make a jury I tell things that half can Oh isn’t out. a human. less much dog, as good as good was not treated even He every me, see change coming I could against disgusted They Alfred just him. I love don’t blame that is I him, why day I was Tell him say I was married day as I did well today as mind From always. is in my He hello, to be good. Chapman.” for the letter was a testified that she mentioned The brother-in-law Vol. Crim.-38 Beports. 77 Texas Criminal [October. was related
gery. Turney marriage, Chapman being niece. brother-in-law was named he was a Appellant’s Purvis, and e brother-in-law of Laura whos maiden name was Laura Chapman, Purvis, and testified that the letter introduced evidence was not in her handwriting. it conceded diligence be that sufficient strict or
compliance it be is the may replied application for a continuance, that his former wife, Laura, and in New was living time, Mexico that was issued for her it and process seems found; at returned not least she was not trial. After obtained at the the conviction communication was secured and made affidavit she that the letter introduced in evidence was that she wrote genuine, and it. In connection with that this letter that she to appellant’s writes Boach, Mr. attorney, introduced that communicated she showing with the district attorney, Mr. with reference to these matters. Lipscomb, Several filed that intro- jurors affidavits if had believed the letter they duced in evidence was would have genuine they acquitted appellant without but of the fact that hesitancy, in view some the evidence was not her decided showing handwriting against These affidavits of can not ver- appellant. jurors impeach their dict, and in a for new are mentioned statement of the motion general trial.’ Mexico, his wife was at Believing Portales, New to send out to take her were interrogatories These prepared depositions. not in for filed but time to secure her Process was testimony. issued well and stated, Johnson as he was not obtained. As before dili- Boy for always is not criterion of first gence controlling the innocence A fair trial of of the guilt continuance. party laws Texas, to be and even guaranteed ought guaranteed by motion sufficient, if if shown upon, new diligence material, is true a new the absent еvidence trial should be *4 shows that a awarded. The affidavit of his wife the letter was not that in fact write the letter. It she did be stated in this forgery, may that the not been at wrote. connection divorce had the time she granted at divorce, did obtain a but it she not been obtained Subsequently had wrote the letter to her husband. cumulative the time she The rule of evidence, which seems to have entered somewhat into the trial of the record, this from the of does not obtain below, appli- viewpoint cаse first continuance. It is on second and only subsequent ap- cations for that of cumulative evidence finds a in our the rule place plications There is another that this court criminal rule procedure. practice folloived, defеndant is that is where the himself relying upon has n that the rule with reference to cumulative immediate his that it the not strictness that if is would be regarded testimony in nowise are related This is based Avitnesses who testified case, that his who testified for him this mother, the theory her dаughter-in-law letter also from to the that effect had received that divorced, and defendant himself be more would much she others, the of trial than in the result to the interested perhaps Engatan 1915.] v. The State.
extent that their should be more closely scrutinized. The inducement under such circumstances would be stronger prevaricate to to than state the truth. In view the affidavit statements the of letter to letter, Mr. by Roach the Chapman of of genuineness the and that it was not a and in view of the whole record and the situation of this as both before the presented and in the jury court, record before this entitles this to trial. another Laura Chapman should take the stand and as ‘testify she has sworn would, letter, she that she wrote that it and was not the forgery; if who filеd affidavits in the jurors credit, case are of worthy and there to indicate that they are not nothing first-class citizens, appellant would he If he acquitted. believed that time he married time that second he was divorced from his he right had a to If the had marry. divorce occurred to the of actually time prior his of course there marriage, would be no to mar- objection his second riage. If he believed it and was under such mistake fact laboring to as induce to he man, believe divorced he still would be guilty, jury verdict should have been in favor. his if testimony, in accordance with Chapman’s affidavit, her ought to that settle question, and seems settled jury against defendant because of the fact that her brother-in-law had sworn letter was not sister. We handwriting beliеve record presents itself in such has had a fair trial shape appellant ought have had, to and under to showing hearing, entitled another and it to and is him. ought be awarded reversed and the judgment remanded. cause
Reversed and remanded. Judge. Presiding PRENDERGAST, to a I agree reversal because think under the circumstances a new trial should granted, have been to all agree but I that is said in the do not opinion. Engman
Frank The State. No. October 3712. Decided Option—Sufficiency 1.—local of the Evidence. evidence, Where, upon option local violation conviction, re- although conflicting, was sufficient sustain the there no versible error. by Judge 2.—Same—Remarks jury way were in judge preju no the remarks made Where defendant, Following Tyrone v. revеrsible error. the Texas there’ was no dicial *5 Exceptions. 3.—Same—Other Sales—Bill sales, to other complaint that evidence was admitted as Where defective, record, there exceptions was bill borne out error. was.no reversible