27 Tex. Ct. App. 273 | Tex. App. | 1889
This appeal is from a death penafly inflicted upon a conviction for murder of the first degree.
Several questions are propounded by the bills of exceptions reserved for appellant during his trial. 1. One of the main witnesses for the prosecution was a boy eleven years old, and he was examined at the instance of the defendant, with the purpose 'of testing his competency as to intelligence, and his understanding of the obligations of an oath. It appears that after his examination by defendant’s counsel, he was re-examined by the court, but the statement, in the bill of exceptions gives us but a very meagre account of the extent of the examination. He seems to have known but little, if anything, about the obligations of an oath, but he knew that it was wrong to tell a lie, and that it was right to tell the truth. That portion of our statute relative to the matter denounces as incompetent to testify in criminal actions “Children or other persons who, after being examined by the court, appear not to possess sufficient intellect to relate transactions with respect to which they are interrogated, or who do not understand the obligation of an oath.” (Code Crim. Proc., art. 730, sub-div. 2.)
As stated in the bill of exceptions, the objection made to the witness was that he “was incompetent to testify because of his youth and ignorance” It is not objected that he did not “understand the obligation of an oath.” If that had been the objection it might, and perhaps could, have been obviated then and there by a further examination—and, if necessary, by instructions given the witness under direction of the court. (Taylor v. The State, 22 Texas Ct. App., 529; Holst v. The State, 23 Texas Ct. App., 1; Comm. v. Lyons, 9 Crim. Law Mag., Mass., 68.)
The objections urged are solely as to his “youth and ignorance” “There is no precise age under which a child is deemed incompetent to testify, but when under fourteen years of age, competency is determinable by an examination, and the action of the court thereon will not be revised in the absence of a showing that its discretion was abused, and unless an abuse of discretion is apparent.” (Willson’s Crim. Stats., sec. 2435.)
Objection, therefore, simply upon the ground of “youth” was no objection. As to the objection under the ground of “ignorance,” suffice it to say that this witness’s testimony, as detailed in the statement of facts, is as clear, circumstantial, positive and intelligent as most witnesses of mature years and
2. For the purpose of impeaching the testimony given by the wife of deceased at the trial the prosecution was allowed, over objection of defendant, to prove contradictory statements made by her to officers who had her under arrest as one of the parties implicated in the murder, whilst they were con-spying her to jail the day after it occurred. The objections to the testimony urged by defendant were that she was under arrest or in duress at the time, and that her declarations were hearsay. Prior to the trial of this defendant she had herself been tried and acquitted. The objection that the witness was under arrest at the time she made the contradictory statements was not available by this defendant. It is the confession or admission of a defendant who is on trial, made when he is under arrest, which can not be used against him except under the circumstances and upon the conditions mentioned in the statute. (Code Crim. Proc., arts. 749, 750.) This statute does not apply nor extend to parties not defendants on trial. As to the declarations being hearsay, whilst that was true in so far as this defendant was concerned, they were nevertheless admissible to impeach the witness, and that was the sole purpose of their admission, as the jury were very properly and explicitly told by an instruction given them upon the subject by the learned trial judge. They were expressly limited and restricted in its consideration to the only purposes for which the evidence was admitted, and they could not have been misled as to the objects and purposes of its admission.
3. On defendant’s motion for a new trial he assailed one of the jurors who tried the case for bias and prejudice against him as shown by statements of the juror made before he was placed upon the panel. This matter, in our opinion, is satisfactorily explained and settled against the objections urged to the juror, by the counter affidavit of the juror himself.
4. Some objections are raised to the charge of the court to the jury, but we have found it to be a clear, comprehensive and fair presentation of the law to the various phases of the case.
As to the evidence, though it is circumstantial, it is to our minds as cogent and convincing as such a case could well be. That the defendant is the guilty agent who assassinated the deceased in his own house whilst at his meals and unconscious of danger, and that he did so from revenge and jealousy, we have no doubt. After a fair and impartial trial he has had the extreme penalty of the law denounced against him, and because we have been unable to find in this record, which he has submitted to us on his appeal, any good or sufficient reason why his conviction should be set aside, the judgment is in all things affirmed.
Affirmed.
