Cook v. State

30 Tex. Ct. App. 607 | Tex. App. | 1892

WHITE, Presiding Judge.

Appellant was indicted for and convicted of murder in the first degree for the killing of one Ida Bell Moore. Appellant was a negro man; the deceased a young white girl, about 16 years of age. The evidence shows that the murder was committed by the deceased having been choked to death, and also shows conclusively that it was committed in the perpetration, or attempt at the perpetration, of rape. At the trial appellant was found guilty of murder in the first degree, and his punishment assessed at death.

The record in the case is very voluminous, and the evidence entirely circumstantial in character; but while the testimony is circumstantial in character, a most mature consideration of it in its various phases has forced upon us the conviction that it is conclusive, and establishes the defendant’s guilt of this most heinous crime beyond all reasonable doubt.

We do not deem it necessary to discuss this testimony, or even recapitulate it, in its most important features. Suffice it to say, that in our judgment it abundantly sustains the verdict, and fully warrants the judgment, which inflicts the extreme penalty of the law. We propose only to notice the three bills of exception reserved by the defendant to the ruling of the court during the progress of the trial.

Defendant’s first bill complains of the action of the court in permitting the State’s witness McCaskill to testify. At the commencement of the trial the defendant invoked the rule as to all the witnesses who were to testify in the case. It appears that several of the State’s most important witnesses had testified, and that witness McCaskill, who had not been put under the rule, was present in the court room and heard them testify. When he was called to the stand the defendant objected to him as a witness because of this fact, but the court permitted him to testify. In explaining the bill of exceptions reserved to this action, the learned trial judge says: “The said McCaskill was permitted to testify in the discretion of the court because it appeared that the witness was not intentionally in violation of the rule, and that the State’s counsel were not to blame for it, and because the tracks concerning which this witness testified were seen by him at a different time and place from that testified to by other witnesses.” The admissibility of witnesses who1 have violated the rule, or who have hot been placed under the rule, is within the sound discretion of the trial court, and such discretion will be presumed to be correctly exercised until the contrary appears. Sherwood v. The State, 42 Texas, 498. The trial judge is invested with a wide discretion with regard to this feature of the trial, and such discretion will not be revised on appeal unless it has been abused. The rule is provided merely to prevent the testimony of one witness from influencing the testimony of another. Willson’s Crim. Stats., sec. 2318. In this instance we do not believe the trial judge has abused his discretion, nor that the defendant’s rights have been in any manner prejudiced by the admission of the testimony of McCaskill. As stated above by the learned trial judge, the witness McCask ill’s testimony was with regard to matter not testified to by any other witness in the case, and it is not shown that his testimony was or could in any manner have been influenced by the other witnesses whose testimony he had heard before giving his own.

With a view of illustrating the defendant’s second bill of exceptions, •it is perhaps necessary to observe that the State had impeached the testimony of the colored girl Martha Fox, who was a witness for the defendant, by showing by the witness Kelly that he had seen the defendant in the field with the two Fox girls on an entire day a few days before the homicide; and also by the witnesses Lee and Fortis, that Martha Fox, after the homicide, had told them of facts and circumstances which would go to show that the defendant, if he had not already become so, was endeavoring to become criminally intimate with said Martha.Fox. It is further shown, that on the day of the homicide these two Fox girls were chopping cotton in the field at the time of and a few hundred yards from the scene of the homicide. This evidence was manifestly introduced by the State for the purpose of showing the probability of the defendant being at the place of the homicide, and the motive which induced him to be there. With these facts in evidence, the district attorney in his closing argument to the jury used the following language, to-wit: “The State does not insist that the defendant went to the scene of the murder to take the life of Miss Moore. If you will take into consideration the testimony of Jim Lee and Clint Fortis, in connection with the testimony of Dan Kelly, who saw the defendant when he spent an entire day with the Fox girls, who were at the time of the murder in Sharp’s field, you will know that Cook was there, and what he was there for.” The bill of exceptions recites that at this point “counsel for the defendant called the alter,tian of the court to the language used, and that the district attorney was using testimony that was introduced exclusively to impeach the witness Martha Fox for the purpose of showing that the deceased was near the scene of the murder at the time of the commission o.f the offense, and excepted to the language of the district attorney; and thereupon the district attorney said to the jury: “I call your attention to the testimony of Jim Lee and Clint Fortis exclusively for the purpose of impeaching the witness Martha Fox. Proof of the presence of the defendant at the scene of the murder being essential, and it being proved that the Fox girls were hoeing cotton in the field near the scene of the murder.” We do not think the remarks of the district attorney were either improper or calculated seriously to affect the rights of defendant, especially in view of the fact that he qualified his first remark by limiting it entirely to the testimony as impeaching testimony. Willson’s Crim. Stats., sec. 2321, for collated authorities.

Defendant’s third bill of exceptions shows that the prosecution, with a view to impeaching Ary Cook, wife of the defendant, asked her if she had not written a letter while her husband was confined in the jail at Austin on this charge, in which she told him “that he was wrong about being at home on Wednesday [the day of the homicide], but that he would have to stick to it.” She replied that she had corresponded with her husband, but had not written to him “that he was wrong about being at home on Wednesday, but he would have to stick to it.” It further appears by the bill of exceptions, that at this stage there were several motions and counter-motions made by each party pertaining to this letter and its contents, which finally resulted in a proposition upon the part of the State to withdraw the objections to defendant’s motion to exclude all the testimony relating to the letter, which motion was objected to by the defendant, and the evidence, as far as it is above shown, was retained in the case. This being the condition of the matter as shown by the bill of exceptions, we can not see how the defendant can be heard to complain, because but for his action the entire evidence would have been excluded. Moreover, it does not appear to us how he could possibly have been injured by the question asked the witness as to the contents of the letter, and her answer that nothing of the kind was stated in the letter, and especially when it is further made to appear that said letter was in the possession of defendant’s counsel, who could have produced and read it, if they had deemed it essential to do so, in order to meet the imputation that such a statement would be found in it.

In so.far as the record before us is concerned, it shows a most fair and impartial trial, in which all the rights of the defendant were accorded him, and in which no action is shown in any manner prejudicial to his interests. So exception was taken to the charge of the court in its presentation of the law with regard to the various phases of the case, and no additional instructions were asked.

Having found no reversible error, and believing the punishment is fully justified by the heinousness of the crime which the defendant has committed, it only remains for us to declare that the judgment is in all things affirmed.

Affirmed.

Judges all present and concurring.