Compton v. StateCompton v. State
- Reporters:
- , ,
- Before:
- Hawkins
Where the indictment alleged that the appellant killed the deceased in Floyd County, Texas, and proof showed that the injury which resulted in the death of deceased was inflicted in Floyd County, but that deceased died in Lubbock County, the venue was properly laid in Floyd County.
2.—Same—Evidence—Properly Received.
Where appellant complains of the action of the court in refusing to retire the jury, and permit him to introduce proof showing that the voluntary statement made by the appellant at the examining trial was inadmissible, and the court‘s qualification to appellant‘s bill of exception complaining of this matter states that the evidence showed a legal examining trial, with statutory requisites complied with before the statement was introduced, no error is presented.
3.—Same—Argument of Counsel—Held Proper.
Where counsel for the state in his argument to the jury said, “I don‘t usually like to jump on a witness, but as long as they get upon the stand and commit perjury, as Allen McReynolds has done, I am not going to throw any bouquets at them,” such comments and criticisms in the light of the evidence in this record were proper deductions and conclusions.
ON REHEARING.
4.—Same—Statutes Construed—Held Constitutional.
MOTION FOR SECOND REHEARING.
5.—Same—Practice on Appeal.
Where appellant filed a motion for rehearing, and later a supplemental motion and argument, and later a supplemental argument, based wholly upon a matter not mentioned or referred to in either the original or supplemental motion, and now asks leave to file a second motion for rehearing, presenting the matters omitted from both the original motion and supplemental motions, this request comes too late to merit attention.
6.—Continued.
However, the questions presented in his request for leave to file a second motion for rehearing, which was an exception to the charge of the court on self defense, was entirely too general to call the trial court‘s attention to any defects in the main charge on threats, nor was appellant‘s special charges, requested to correct the deficiencies complained of by him in the court‘s main charge, specific enough to direct the court‘s attention to the point urged as error. See Boaz v. State, 89 Tex. Crim. Rep. 524; Parker v. State, 98 Tex. Crim. Rep. 209; and Bell v. State, 99 Tex. Crim. Rep. 61.
The indictment charged that the appellant killed the deceased in Floyd County, Texas, on or about the 4th day of October, 1922, by striking him with an axe. The record discloses that the difficulty occurred in Floyd County and that the lick was struck in said county but that the deceased died in Lubbock County two days after he was struck and that the lick struck by the appellant was the cause of the death of the deceased. Under this state of facts, appellant very earnestly contends in a very able brief that as it is essential in a prosecution for homicide to allege the place of the death that this allegation must be proved as laid and that in view of the fact that the indictment charged that the death occurred in Floyd County, proof that the injured party actually died in Lubbock County is not sufficient and does not correspond with the allegations contained in the indictment. Appellant‘s counsel has evidently devoted a great deal of time and thought to the preparation of his brief on this question and it evidences great research and ability on his part. We are convinced, however, that counsel has overlooked the application of
By bill of exceptions No. 7, complaint is made at the court‘s action in refusing to retire the jury and permit the appellant to introduce proof showing that the voluntary statement made by the appellant at the examining trial was inadmissible. This bill of exception is approved with the qualification that the “evidence showed a legal examining trial with statutory requisites complied with before the statement was introduced.” Under this qualification of the trial court, we think this bill of exception does not show error.
Appellant complains at the argument of the special prosecutor in the case. The bill shows that counsel made the following remarks in his argument to the jury: “I don‘t usually like to jump on witnesses but as long as they get upon the stand and commit perjury, like Allen McReynolds has done, I am not going to throw any bouquets at them.” The bill shows that the defendant objected to these remarks and requested the court to instruct the jury not to consider them, to which request and objection the state‘s attorney replied: “Yes, sir, I accused him of perjury, I sure did, and it‘s not reversible error.” The bill shows that appellant‘s counsel again objected and requested the court to charge the jury not to consider same, which the court declined to do. We think that the argument set out above was a statement of a conclusion reached by state‘s counsel and that it was not of such an inflammatory nature as to warrant a reversal of the case. The witness, McReynolds, may have told the truth but we do not believe that his testimony carries with it such convincing and inherent evidence of verity as to make it reversible error for the state‘s counsel to reach the opposite conclusion and to state such conclusion to the jury. We have carefully considered the other complaints raised by appellant in his bills of exception and believe that none of them present error. So believing, it is our opinion that the judgment should in all things be affirmed.
Affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
HAWKINS, Judge.—We have examined with interest appellant‘s motion for rehearing, his argument thereon, and the authorities cited in support of his contention.
Chief reliance seems to be upon Ball et al. v. United States, 140 U. S. 118, 35 L. C. P. 377; and Broakway v. State, 138 N. E. 88, 26 A. L. R., 1338. In the jurisdictions where these cases arose there was a statute corresponding to our
“When an offense may be prosecuted in either of two or more counties the indictment may allege the offense to have been committed in the county where the same is prosecuted, or in any county or place where the offense was actually committed.”
Effect has been given these various articles many times. Numerous cases may be found collated in the notes under said articles as found in Vernon‘s Ann. C. C. P. of Texas (1925).
“An offense committed on the boundary of any two counties, or within four hundred yards thereof, may be prosecuted and punished in either county.”
This statute has been given application even where a river was the dividing line between the counties. Hackney v. State, (Tex. Ct. App.) 74 S. W. 553. Where an offense was committed in an unorganized county and indictment returned in the county to which the unorganized county was attached for judicial purposes, (it being alleged in the indictment the crime was committed in the county where the indictment was presented) it has been held that
We have not been able to perceive wherein the various articles of the statute referred to, and especially
Appellant takes the position that he would be unable to plead a judgment rendered on the present indictment in bar of another prosecution for the same offense in Lubbock County should one be there instituted. This is wholly untenable. One pleading former acquittal or conviction in this state may allege and prove the facts which show the identity of the offense although this may not appear upon the face of the indictment, nor from the recitals in the judgment. The evidence shows that death occurred in Lubbock County and resulted from the injury inflicted in Floyd County. Under the facts a quotation from the opinion in Spencer v. Commonwealth, 184 Ky. 699x, 240 S. W. 750, seems appropriate.
“It would be absurd to say that one indicted for the crime of murder by feloniously shooting another in one county, and the death followed in another, that such indictment did not apprise him of the crime for which he was to be tried, from the fact that it charged him with the acts and consequences necessary to make the complete offense as having all occurred in the county where the crime became complete. Further, there could be no question but that such trial would be a complete bar to another trial for the same crime, since all the elements of the crime were proven upon the trial.”
Counsel for appellant have made an exhaustive investigation of the subject and present their views in a forceful manner, but we have been unable to agree to the soundness of their position.
The motion for rehearing is overruled.
Overruled.
ON REQUEST TO FILE SECOND MOTION FOR REHEARING.
HAWKINS, Judge.—On April 1, 1926, appellant filed a motion for rehearing consisting of twenty-one pages in which the only question raised was the one discussed in the opinion on rehear-
Appellant‘s request to file second motion is denied.
Request denied.