20 S.W. 354 | Tex. Crim. App. | 1892
Appellant was convicted of murder in the first degree, and his punishment assessed at a life term in the penitentiary. When the jury was being empanelled, the defendant, as well as the State, asked for and obtained an attachment issued for the absent venireman, McAtee. The defendant then asked the court to suspend the further empanelling the jury until the sheriff could bring in the juror, or show cause why the attachment could not be executed. This the court refused, and ordered that the selection of jurors be proceeded with from the summoned talesmen. Defendant excepted, and duly reserved his bill of exceptions. The ruling of the court was correct. Hudson v. The State, 28 Texas Ct. App. 323[
Defendant sought a continuance for the testimony of Henry Henderson and Joe Wilson, residing in Cold Creek, State of Colorado, the county alleged to be unknown to defendant, and for the testimony of H.B. Lovett, Henry Spicer, John Lafayett, J.A. Anderson, and Ed Edwards, who reside at Hat Creek, Wyoming, the county of their residence also being unknown to defendant. The application states that defendant "expects to prove by the depositions of said witnesses that he was in the State of Wyoming all of the entire year of 1885; that said witnesses will swear that he was in Wyoming on the range during the months of September and October, A.D. 1885, and that it was impossible for him to have been in Texas during said months of September and October, 1885; that the murder with which this defendant is charged is alleged to have been committed on the 28th day of September, A.D. 1885; that he expects and can prove by said depositions of said witnesses that they were with him on said 28th day of September, 1885, in Wyoming; that said J.A. Anderson has known this defendant for nineteen years; and that his name is Charles Parker, and not Jim Jones."
Viewed from the standpoint of the motion for a new trial, was this testimony probably true? Or, to state the rule more strongly, and favorably for defendant, were the facts bearing upon this issue sufficiently cogent and convincing as to render improbable the truth of the facts set forth in the application? If so, the new trial was properly refused. In this connection the record discloses that the defendant testified that he was not in Wyoming during all of the year 1885, but that he spent a portion of that year in Colorado; that he was working for J.A. Anderson in *182 Wyoming during the fall of 1885, and was in Wyoming on the 28th day of September; that on the ranch of Anderson were with him the alleged absent witnesses Lovett, Spicer, Edwards, Lafayett, and Anderson; that since August, 1887, until he was brought to this State to stand his trial in this case, he was in the United States penitentiary; that the last time he heard from Lovett was in 1887, Spicer in 1890, at which time he had a letter from him, and that he has not heard from Anderson since 1889. He denied that he was ever in New Mexico "on the 101 Ranch," as testified by State's witnesses; that he never knew the State's witnesses Hicks Duncan, W.P. Yarborough, and Jeff Helsley on that or the adjoining ranch, or that he ever saw them before he was brought to Texas to stand his trial; and he denied that he was guilty of the homicide charged in this case.
By the witnesses Hicks Duncan, Jeff Helsley, and W.P. Yarborough, the State proved that they knew and had known the defendant for years. They knew him in New Mexico. That while there he worked on the "101 Ranch" during the year 1884 and a portion of the year 1885, and was then called or known as "Jim Jones, or the Tom Harris Kid."
They all identified him in the most unequivocal terms as the same party. Yarborough further testified, that he met defendant "in Cheyenne, Wyoming, in the spring of 1886. He told me then to call him Charley Parks, or something like that. This defendant now on trial is the same man I knew in New Mexico as Jim Jones, or the 'Tom Harris Kid.' He is the same man I saw in Cheyenne, Wyoming, who told me to call him Charley Parks." Duncan met the deceased, defendant, and the witness Ashby on the day of and just prior to the homicide. These three men met by this witness were then traveling together. He and the defendant stopped, shook hands, had some conversation, and then parted; the defendant pursuing his journey north, with his two companions, and Duncan continuing his travel south, with Helsley, to Johnson County. The traveling companions of defendant were strangers to Duncan. He had never seen them before. S.E. Ashby, the only eye-witness to the homicide besides the slayer, identified defendant, and said, "I know this man now on trial is the man who killed W.W. Chrisman. I can never forget the face of the man who did the shooting. It is indelibly photographed on my memory." Defendant shot this witness three times, at the same time, and immediately after killing Chrisman.
Defendant was indicted under the name of Jim Jones, and when arraigned pleaded to that name, making no suggestion that his name was other than that charged. The record, to our minds, clearly shows the improbability of the truth of the facts set out in the application. Here are three witnesses, strangers to deceased, and friends of the defendant, testifying to facts positively identifying defendant, and rendering it impossible that the testimony by which he proposed to establish his alibi *183 could be true. If presumption is to be indulged to support either theory, it must be against the defendant; first, because the ruling of the court is presumed correct; secondly, because the witnesses, if biased, would be so in defendant's favor, and not against him, because he was their friend, and had been for years, but were strangers to deceased. The court did not err in failing to charge upon the law of circumstantial evidence. The facts are positive and direct from an eye-witness that defendant shot and killed deceased in the perpetration of robbery.
The judgment is affirmed.
Affirmed.
Judges all present and concurring.
