*1 y. The State. 1900.] Keaton v. The State. Pearce 11, April 1900. No. 1938. Decided Continuance—Agreement of Counsel. 1. merely required grant because a continuance there is an court The continued, parties be and a the case should refusal ground upon agreement will not for reversal of the court to continue whereby injustice legal reason shown was done defendant. there is some unless of Court. Terms 8. during regular legal Legislature amended, a session of with an Where emergency clause, adding terms of the act which fixed the said court another beginning changing term, Held, the- to the term without this did not week previous repeal which the court was law held. Law—Challenges. Jury 3. Juror impanelment jury objection- error is not shown Reversible where no juror peremptory defendant was forced after he able had еxhausted his challenges. Murder—Evidence—Sufferings 4. of Deceased. competent prove physical it a trial for murder On the mental or condition or immediately shot; groaning of deceased both to be he was that he seemed great pain, suffering very in a deal of he much. Dying 5. of Approaching Declarations—Consciousness Death. morning day died, Between 9 and 10 o’clock deceased when told operated upon by physicians hope he was expressed to be that he replied, better, “No, any better; soon be I’ll never be I am a done man.” night o’clock, being died that few He a minutes before 10 rational a few minutes anyt three before better, death. About hours before his death he stated wasn’t Held, a and then statement to the witnesses as to made how was shot. sufficiently apprоaching death, he was conscious of shows and was sufficient predicate dying a to admit statements declarations. Witness—Impeachment. 6. Defendant as a may impeached A defendant a who is witness in his own behalf as to his credibility by proving penitentiary, him that he been in the has is not necessary prove facts, should be record his conviction introduced but he be forced to answer the matter on as to cross-examination. Two 7. Distinct Offenses in the Same Transaction. The fact that defendant has been of an assault with intent convicted rob one person prosecution is no bar to his conviction for the murder of another person, offenses, although perpetrated where the offenses are in the same distinct transaction. Murder—Forcing 8. Danger—Charge. Occupy Deceased thе Flace a perpetration appeared On trial for train-robbery, murder in the where it place defendant and his where he confederates took deceased to the probably shot life, Held, which might, knew was a where he lose his place, defendant was liable for deceased’s matter murder at said shot, whom shooting he was occurred the robbers and the between passengers, train jury. instructing the court did not err Appeal from the District Court of Coleman. Tried below before J. 0. Hon. Woodward.
Appeal a conviction of murder in the first degree; penalty, life imprisonment penitentiary. case to Jeff Taylor ante,
This companion p. with the murder of charged The indictment Lee Johnson 1898, June him with shooting gun The murder pistol. of a train committed in" attempted perpetration robbery. Beports. [Austin, north end about 10 o’clock at night occurred attempted robbery *2 south train facing switch Y Coleman Junction. The was the at of side of the near On the east the of the switch. engine with the pilot out was a circular' embankment extending near this there track pilot block feet switch from the ten or twelve the track some stopped the train The brakeman forward when located. went was hag the of train in the end to let the Ballinger throw the switch to brakeman fusilade of shots and the Y. up The robbers opened In us!” cars, got “The have robbers exclaiming, rushed back into the meantime, and “Myself testifies: Stanton Engineer the Lee.Johnson of the at pistols, forced out of cab the point were (deceased fireman) ,and robbers by of compelled was the out Johnson being forced me. When door, them looked after and two of to the car express go again injector, off the he was and Johnson came back to the cab shut He one of the robbers. by inarched back near door the car express taken being and remain robbers.” there compelled by Aft(er cab, took Johnson out of the robbers says: same witness “One car, messenger and told forward Johnson the express if the mes- heard him to I them cursing asking wanted open up. car blow the the car and opened threatening up senger man ran up I tender time was beside the at the another dynamite. I said mine Bill ?’ his face close to ‘Is that placed you, I said, ‘Ho.’ He are for?’ ‘What you trying tender. T shot.’ said, rather under the side of the I am of being afraid said, said, I afraid of He ‘We are hurt ‘I am not going you.’ of me; I am afraid of from end the shooting the rear I have to train.’ At this heard the fireman time say were One injector. off the There two men with me shut at time. said, ?’ I said, of them ‘Has he left the damn so will blow thing up a minute; ‘Hot for that is all and the right.’ About this time Johnson Stanton, said, back. I will robber with came Johnson then ‘Mr. said, mind,’ off that injector.’ shut and then told I ‘Hever to shut it off. He Johnson He went shut off injector.” back and the car, then marched back to when more the of express front the were car with threats’ made to blow the express robbers with him Stanton, and two robbers dynamite. engineer, near tender middle tender. Stanton “I engine, says: about of in next to it as tender; of course I as close was getting range so as to of from rear of could be out toward shooting I could rear train, when in there next tender not see toward train; end of would shut view.” It express front car off my inches more than tender. In the meantime eighteen out projected some Buchanan, E. had awakened B. outcry opened brakeman’s went rear secured end grip, pistol smoking smoker, stepped car down the lower car between chair the robbers By again the smoker. steps Buchanan charge. with Johnson took a view door ear fired two parties, shots in quick as to situation 'the The State. 1900.1 succession robbers down off steps, then swung ground by the side car the shadow and steps emptied robbers. Buchanan was to the north of the pistol shot, robbers, also on east side of train. When robbers Buchanan shots, returned immediately the fire a number of in the shoot- killed, either Lee Johnson the robbers or Buchanan. ing All three opinion physi- testimony, exception cians, The opinion showed that the robbers. was shot usual, was divided three in their physicians stating opinion ball that it entered from right side, entered from three left side side. The wound on the than considerably larger right ' left; left. The witnesses twice as say large right some *3 navel, to wound on left front of near to rear body right was the and in lower down over the just and the the ball have hip, range taken if the robber shot that witness Cox saw from the shooting near and whom him. the the shot dump pilot deceased said party Keaton, “Newman fireman Appellant, Pearce testified: and the were this time at car door the fireman express and was telling the ex- the to down press messenger open up. engineer The was crouched under was thought the tender I to crawl run trying and under the car and our It to car away. express was cut the loose and run it part plan train, off fоr reason did from and we not want engineer the and from to us. But the away fireman brakeman back get running car frustrated our we not brakeman plans; did out expect there. I said to the under engineer, are ‘What there you trying get shot;’ said, for?’ ‘I said, and am afraid I ‘We are being and hurt going don’t want it is money; workingman’s said, are express that we after.’ T am afraid of shoot- your He me, but I am ing afraid from end the train.’ At shot other being this time Newman and the came fireman back, fireman and the * * * he was off to shut going about the When something engine. shut off, he had Newman it fireman to the express went back car and the fireman told the Newman express messenger up. open said, cursed them and we’ll dynamite on that blow the ‘Bring damn About from the one thing shooting time some up.’ began train.” Keaton, defendant, On cross-examination “My- Pearce testified:
self, Newman, Bud Jeff into an Taylor, Taylor agree- and Bill entered Gulf, ment on Fe express rob the Colorado & train at Santa first Junction. We it at but the robbing Ballinger, spoke ' Taylors said Coleman They Junction would be best were place. acquainted place, about about said. We first talked they two months we made the We to Cole- attempt. before to come agreed man Junction come We and did purpose, purpose. agree we started was' before as to the each up there one part perform. the road up We made the while we were there as each was to be was to Bill Taylor perform. leader It were and direct. Newman agreed myself and Bud Reports. {Austin, of the
to take the and fireman them out engineer and take charge him to the ex- cab, and that Newman was take of them with opened. car for car When we express press getting and Newman en- got engine there made the got myself ground. fireman out of the cab and used gineer get doing our so. and Jeff Taylor, guns Myself they got cab, and Newman took took engineer; fireman and marched him to the car door to express have it opened. We forced the fireman and to do as we told engineer while Newman fireman were at the car express time, and the the first some- matter with the and the engine, fireman New- thing got said.to (cid:127) man, T will to shut off injector,’ and he and Newman At the came back for fire- purpose. (Newman and the they car and man) back, came Jeff myself, Taylor, engineer near the tender to the engine car,, down under what engineer trying and I get asked said, am trying for, T engineer shot,’ afraid of I told to hurt being going you; ‘We are we don’t hurt man’s laboring want to man or take any laboring anv said, money.’ engineer me; T not afraid am of your shooting am afraid of train.’ After from the other end of me, fireman so stated to informed there notwithstanding the rear end engineer being shot forced back injector the fireman after off the train, shutting *4 there, and he Newman remain in front of and to car express not I did car. held there while he shot back- Newman did so with arms. there. myself force him to go there, we took the when Newman ing up assisting robbery. the of accomplishing took the fireman for the purpose * * * what rob about in our There was nothing had guns pistols. resistance. We all in case of we do intend effect, did not we but agreement particularly had no it.” help if we could of it worst in case of resistanсe the an and argu- & for able brief McCartney, Jenkins filed appellant, not can length on the motion rehearing, owing ment the are shown by in full. Then contentions reproduced principal rehearing, in motion summarized argument propositions follows: from a must result homicide, A in amount to a 1. death order to force. physical life must destroys force which 2. The physical of the accused. constructively, or actually caused the meant that the force which “actually” physical is 3. By in own in whole or his part by phys- been must have projected death his own or by physical by must say, power, is' to ical power; or done others, have struck blow aided by power own physical deceased. killed act which t m*
i v. The State. 1900.1
4. or By will, meant that his own either “constructively” is alone acting connected with set others must have оr impelled motion the force which killed the deceased. physical o. Where cause of death act an immediate sole is will, accused, human concert independent acting is the act of act neither the accused. actually constructively death Where immediate cause of results act of third done instance of and such third party accused, party fear, has no or discretion infancy, because idiocy, by reason of deafness or blindness or other defect of he does the senses act know what he then such the act of accused done doing, or, were, as mere through intervening party passive, mechanical agency.
7. That the accused in a when deceased places killed an third intelligent he is party who acts premises in the usual and manner оf business with no knowl- expected only, deceased, act of the edge position is the killing accused, and, so far as transaction acting through unconscious concerned, an unintelligent agency. these ease, have:
Applying facts in principles (1) The force physical that killed fired Johnson was a bullet Buchanan. fired (2) Buchanan was not or' actually constructively fired by appellant. Not (3) appellant, because not actually by whole inor part by hand. Not (4) constructively by appellant, because by one with him. acting (5) Neither nor con- actually structively, because Buchanan was not acting against ap- pellant. Buchanan, (6) intervening party, who the act which was the immediate death, sole cause Johnson’s was neither a idiot, nor child blind, neither deaf nor was not commanded by to shoot and by threats forced to do so. Buchanan did (7) Johnson kill in the discharge of his business in ordinary the usual manner expected ignorance of Johnson’s position. in our There is change nothing statute these well established law, principles nothing decisions of this else- State or where to cause them to be other than applied Campbell Butler cases. our Article 77 of Penal Code is but a re-enactment of *5 the common law. The “or expression, use other direct any means causes another to person receive his injury property,” I j cause, does not alter the of the nor word rule that meaning change the Ito be of homicide death result from act guilty must of the ac- On it must contrary injury result from provides jcused. ¡“the Code, use of means.” such indirect Article Penal is common Ilaw without alteration. Article 651 “Homicide the de- says: life agency, struction of omission procurement, culpable accused,
another.” If the act or omission culpable it act; “actually” vould be it would agency procurement, Rep.—40 41st Crim. Reports. [Austin, act. alter the common “constructively” his So we see does regard.
law in this John, Sims & RoVt A. Snodgrass and Assistant Attorney-General, for and brief and argument. filed an able elaborate Appellant was BROOKS, the murder of convicted of Judge. Johnson, at Lee assessed confinement pen and punishment substantially for life. testified in his own behalf tentiary Appellant Newman, en as Jeff Bill “Myself, Taylor follows: Bud and Taylor, Gulf, into & tered to rob the Colorado agreement express Fe train at We first Santa Coleman Junction. Company’s spoke it Taylors Junction robbing Ballinger, but be the best were sо said. acquainted place, they place. They We first about it about two months before we made attempt. talked for come We to come Junction and did agreed to Coleman purpose, there, before started We did we purpose. agree, up made we each one was We while part perform. Bill were on road there to the each was to up perform. leader, was to Taylor agreed myself be the and direct. It was charge, and Bud Newman and fireman in take the engineer and take them out of and that Newman was to take one cab, them with of getting express him to car the purpose express en Newman on the got car and got When there opened. myself cab, gine, and made the and fireman out of the engineer get Jeff ground. Myself Taylor, We used our so. guns doing Newman took cab, engineer, took they got door to car fireman, and marched him express up told to do as we engineer forced the fireman and opened. We car first Newman fireman were at while express New the matter with the and fireman something got engine, man, Newman then ‘I will have shut oft and he and injector,’ they came back for At time purpose. fireman] [Newman Taylor, car and came Jeff myself, back express and the were near tender engineer engine, engineer car; down under the and I asked he was get trying him what trying shot,’ said, for, T am afraid of engineer being don’t want told zWe are to hurt you. going man, money.’ or take man’s laboring any laboring hurt any being ‘I me. I am afraid of said, shooting am afraid of gineer so stated shot from the other end of the train.’ After the fireman I was informed therе was me, notwithstanding train, fireman, from rear end of the engineer being car in forced to back injector, express off go shutting there, Newman, remain and he shot while and to force I did not him to myself there at the car. *6 assisting arms. backing Newman there, took there for he took fireman we man when 1900.] y. The State. * * *
purpose of accomplishing robbery. There said nothing in our agreement to rob about do what we would in case of resistance. We all had guns and We had no pistols. agreement to particularly effect; intend, resistance, we did not in case of to get any it, worst of it.” could help first Appellant’s assignment is that the court erred in overruling continuance, for application after the district attorney private prosecutor defendant, had attorneys, agreed to orally con- tinue the case until the court, term of September which agreement was announced to court; whereupon court stated he not said allow cause continued, to but it at must once. The proceed court bill qualifies this as follows: “I did not believe for the attorneys State and defendant should be permitted agree continue a lot murder eases, when I knew the tried could be and dis- personally ease of. posed defendants, One of the wit, Jeff Taylor, just been brought from the murder, penitentiary for trial on the charge of when I so stated that the case must be tried motion was made to continue.” We do think the mere counsel agreement to con- tinue cause requires court grant continuance; and where a trial refuses to judge and continue ratify legal unless some reason is shown whereby injustice has been done appellant, will not be for cause reversal. court, second Appellant’s assignment contends time tried,
this case was session, and had no lawfully jurisdiction it, time said and place try had, because the Legislature since the convening of court, the law repealed for fixing holding terms of the District Court in Coleman County an amend- by passing for ment fixing times said court in county, said which ter- holding 1899, minated the court February term, court, and this could again lawfully be in session first before the Monday September, 1899; and defendant the jurisdiction of this court excepted try this cause at time. The court overruled the The reg- exception. ular time for the which of the term of court convening 1899, tried first February, continue ses- Monday said day. sion four weeks. The court was While the organized law, court was in session held under the thеn existing and being attached, merely with the clause Legislature passed emergency Coleman week. The the term of one adding County term to first Febru- Monday amendment provided begin to remain in five It seen from this session weeks. ary intend- clear the term was not beginning changed, simply give additional week ment of the Legislature Court, for the District the amendment was County effect, so as to the then existing to have retrospective repeal intended 7, County. of Coleman Article District Court section term State shall be divided into many "The of the Constitution provides: law, now hereafter be provided by may districts as judicial diminished law. He district shall judge] be increased [the *7 Reports. 41st Criminal [Austin. county each hold the of regular term of his court seat county district in manner as be year, pre- in his at least twice each law.” provision scribed The bare of this constitutional statement of the amendment preclude the construction certainly would Legislature that as contended for contention by appellant; of the session amendment law repealed previous whereby authorized on the first District Court of Coleman to begin County Coleman la¿w, If of the old in this is a February. repeal Monday Court, which the District would be of one term of County deprived doWe of the constitutional quoted. would be in the face provision juris- in plea not think court erred overruling appellant’s diction. court erred refusing is that the assignment third Appellant’s had voir on their dire that they
set various who stated jurors aside well-defined, as clear, and fixed opinion formed had a to rob the attempt guilty participancy Junction, killed, at the time the had no oрinion would opinion, they evidence to but remove require murder- charge as or innocence defendant guilt upon “Bach wit: case. explanation, this The trial court this appends exclusively stated the had formed opinion they veniremen rumor, no bias that had hearsay, reports; and newspaper they defendant; on they favor of or that if taken against jury prejudice would in- opinion, would discard same have the slightest not fluence on them their ver- verdict; that would base returning they law;, on dict in the case evidence on under the given the trial whatever had no as to innocence of defend- opinion guilt now M. stated ant him. Grantham charge pending against R. no facts; that he had not heard what that he had be the purported defendant, innocence to- guilt or either opinion attempt or the juror rob Said Grantham was the fifteenth present charge. challenged juror defendant stood aside. peremptorily, de- guilt J. B. stated had innocence of Warren no as to opinion fendant that the as to participation present charge; opinion to rob was based hearsay, reports attempt solely upon newspaper rumor; that he would and same would discard opinion, verdict; have the influence at a arriving slightest given and under base verdict the evidence the trial juror challenged law. was not peremptorily, accepted This sworn in A. A. juryman Griggs, defendant. The twelfth had in favor of or stated on his voir dire that he no bias prejudice defendant; that he had formed such conclusion as to against in find- defendant as would influence his action guilt or innocence of he had no whаtever as to or innocence guilt verdict; opinion ing to rob or the charge attempt of defendant of either case, witness case; speak that he had heard the facts of the as to either purported what heard murder; to rob present charge attempt 1900.] v. The State. rob, that, killed in
have the if Lee Johnson was opinion attempt same, and ought defendant was responsible punished; *8 had no in to that. Said ac juror he was opinion regard thereupon him, and sworn State. Defendant challenged he cepted by The juror; thus juror, the twelfth making completing panel.” is any of the trial court shows without lengthy explanation appellant just ground in Fo ob jury. complaint organization State, forced Adams 35 jectionable him. In v. Texas juror 295, Criminal the court said: “The answers of said jurors, Reports, in connection with the court to the bill of qualification excep tions, jurors that shows those had formed any opinion so, the case had done not from heard witness state having facts, but from rumor not further declare hearsay; that, guilt then entertained as to the or innocence withstanding any opinion could fair trial appellant, they give appellant impartial State, the evidence in the case.” also v. 30 Texas See Suit Crim. App., 319; State, 629; State, v. 19 Kennedy Texas Crim. Johnson v. App., 21 368; State, Texas Crim. also 10 Post v. Texas Crim. App., App., 591. that, It is established “the rule the court although State not, may err a juror who is holding qualified yet, ten dered a fair and he can not impartial jury, complain, although may have been of a deprived challenge by the action of the improper court.” Keaton v. 40 State, Crim. Texаs In Rep., Loggins 12 73, White, Texas Criminal Appeals, Presiding Judge, delivering the opinion court, “As stated concisely case, 9 Holt’s Criminal ob- that, it is ‘unless Appeals, shown to jection one or more of the who tried the jury antecedent court rulings upon the who competency jurors have been challenged stood aside will' not be into inquired in this court; but, if one objectionable juror is forced upon defendant after then exhausting peremptory challenges, entitled to have action of the court reversed’ juror as to any against whom objection urged which should have been sustained.” It will seen from authorities foregoing contention appellant’s borne them, nor court, explanation since no objectionable juror was forced upon appellant after he had exhausted his peremp- challenges. tory
Bill of number exception complains that the court erred in per- mitting declaration of deceased to be introduced as testimony. On trial Stanton, the State introduced James thirty- testified that five minutes after forty Lee Johnson was shot and said (deceased) Stanton had the train on stopped from Coleman Junction way Anna, Santa deceased was groaning, and said he very was suffering much. that, Stanton had testified some five after previously minutes had deceased told shot, witness he was witness laid down the side by time or, minutes, deceased for some ten fifteen deceased during bowels, told witness he and also said he through know whether he could in the cab of the engine, expressed Bepobts. 41st Texas Cbimmal [Austin. could
opinion he do so with the witness’ assistance. into got Deceased cаb and rode about three-fourths of a mile. He also testified that, after at Santa Anna arriving deceased putting depot, and when witness left the about an depot, hour after deceased shot, deceased was and seemed to be in deal of groaning, a great pain. each of To these facts appellant reason objected, that the same immaterial, not a hearsay, the res gestae, and prejudicial appellant; the court overruled objection permitted testimony. bill as “Stanton testi- follows: qualifies that, fied Anna; he ran train Santa difficulty ended, was about minutes in eight Anna; train to Santa fireman getting cab, Lee Johnson was taken out and remained put depot, minutes, depot hotel; twenty and was carried thirty from time of to hotel scene of until got leaving difficulty *9 about or minutes; was that not remain he thirty forty [Stanton] minutes, room, hotel a few on did not into but remained he was on. He where could see in room and hear what gallery, going during time, suffering, testified to condition of the bill.” as mentioned in We do think court complaints was testimony. competent erred It admitting perfectly condition, or State to the mental' physical permit prove both, of was after he shot. deceased immediately action on the In bill 5 of the following number is made complaint conscious- court: of showing “The part ohnson, J death on the of Lee proved ness approaching inflicted, suffering experienced of the wound character that the infliction, and a (by physician) Johnson from the time its wound, fatal, deceased and a that painful necessarily wound him, first saw from the time the physician sink' graduаlly continued to death, aof exception until shooting, the night physician and at that time just operation, short while while, little, probably for a short but only rally stated seemed perceptibly grew deceased hour, gradually after which 10 o’clock on a few minutes worse, until that night, he died deceased about upon that 1898; operation performed June n 9 10 9or June; about 10th of of said o’clock the morning was, J ohnson H. Melton went into the room where "Mrs.B. o’clock face, sweat off him, the cold apron wiped her went toup room, into another Johnson, stretcher bringing parties seeing J ohnson]; were do with Mrs. Melton what going they [ asked operation him, are ‘They going perform Mrs. Melton said to ‘Ho, Johnson replied, soon be better.’ and I hope you on you, proved done man.’ The State further better; аm a never any I’ll There- few minutes before he died. within a rational Ben Melton that between Gardner and by Joe State proved 10th, de- in the room with Gardner was m., June 6 and 7 p. o’clock engine the night pre- Johnson’s taken (he having ceased worked, about the engine how after some and, ceding), conversation 1900.] v. The State. any felt, asked Johnson said he wasn’t Johnson how he Gardner him, ‘I who and he don’t
better, and Gardner asked him man at man me. It was. Buchanan never shot know the conver trucks, near the that shot me.’ Witnesses stated pilot Johnson died.” Appellant about three hours before sation took place deceased that it was shown testimony ground objected to hope death and there was no believed was conscious approaching declarations and state making the time reсovery conten statement contradicts appellant’s ment. We think the above death tion, contemplation approaching and shows deceased form of made. There phraseology at the time the statement fact must declaration indicate the a dying in which a party making death. So this done conscious of approaching State, 27 said Miller v. it is sufficient. We clearness, reasonable if it enough satisfactorily appears Criminal 80: “It is Appeals, made manner [referring dying declarations] the express sanction, proved by whether directly from his declarant or be inferred evident language or from of medical or other stated attendants opinions resorted of which are or other circumstances all conduct See also mind.” in order to state declarant’s ascertain the rule State, 36 foregoing Texas Crim. Rep., Applying Sims shows detailed, we think the clearly of law to the facts as evidence deceased, made the statement was introduced time he death, was conscious of approaching evidence against appellant, that the circumstances and environments such as indicated clearly *10 must die. deceased understood he bill number complains
In 6 the the that appellant court permitted ask State’s attorney appellant following cross-examination the “How out been How long you questions: penitentiary? you confined the been long, penitentiary? Have ever other felonies besides the one in the charged you were peni- for?” Be- objected to all tentiary Appellant questions: “(1) of said the assumed as a fact that had in the questions cause defendant been оf which fact had been offered. Because penitentiary, evidence (2) immaterial it was how had been long defendant peniten- or that he tiary, ever been in to show had except the penitentiary, defendant had That, object been convicted of a if the (3) felony. be to defendant convicted of sought felony, show had been All of record of such of such fact.” conviction was best evidence overruled, objections testified that been had appellant out of for about was confined there about years, two penitentiary fel- indicted for twenty-one months, and he had been frequently State, 36 onies. In v. Darbyshire Texas Criminal Reports, behalf, defendant was his own testifying “While stand on cross-examination him that he State’s counsel proved for several objected a term This was pеnitentiary. served for under objections, deem to notice the We it unnecessary reasons. Beports. 682 [Austin, decisions of repeated State, this this character of testimony admissible for the purpose fact impeaching testimony.” The of defendant been having charged with other admissi offenses is also ble as This affecting credibility. is well settled in State. this Clark 38 State, v. 30; Texas Crim. Rep., Rutherford v. (Texas State Crim. 271; 34 S. W. Carroll State, 32 Texas App.), Rep., v. Crim. 431. And it Rep., is necessary record of conviction facts, should he introduced in tirder to forced prove note, answer the same as indicated decisions. above however, that the court in its limited the charge effect testi this mony impeachment. - Bill also number court erred in complains refusing -not “to find defendant give special requested guilty offense charged viеw the fact that he had previously rob, been of an assault intent convicted .to the offense is of which defendant now on trial was the same offense for which he had been convicted in said trial assault An to rob.” inspection evidence shows did not err in to give the refusing They charge. are not and the nor special same one and the - same transaction. One was an assault with intent L. rob Bobert White, this case murder of Lee Johnson. Thé is,,if criterion character in-pleas true the act defend which ant is same violence or act relied upon in the being prosecuted convicted, case wherein" was or if two con offenses previously stituted but' transaction, one' continuous
actor, this stand; could not. hut acts were distinct prosecution if the transactions, separate and the maintаined to con prosecution one, viction against defendant'in this fact can in bar pleaded aof prosecution a different offense sheer subsequent force the fact that last Tay offense occurred same time. one and the State, ante, lor v. Texas p. 564; also Herera v. Crim. Rep., 607; State, 39 Crim. Sadberry Rep., n various Appellant- In thé urges objections- charge. the court’s same, view we take-of one. it is consider but necessary court, other among follows: things, charged jury as “Unless you further doubt, believe a reasonable that de- evidence, beyond Kewman, fendant Pearce Keaton entered into Bud a.conspiracy Jeff Taylor, and-Bill *11 or of Taylor, either commit the offense is, of robbery,—that Gulf, to rob the Colorado company Junction,—and & Bail road Santa Fe way Company’s agreed as themselves each was to among perform -robbery, said of in said enterprise and that of pursuance defendant, named, and said with the or either oné conspiracy parties them, did Junction, of to 'Coleman and that Coleman Junction go said Texas, there, was and is County, -in-Coleman and did then and in pur- suance of to commit conspiracy, said and the crime attempt perpetrate for' robbery, and and purpose accomplishing robbery, said of- and in its the .defend- aiding assisting perpetration, 1900.} 633 v. The State. and Bill ant either alone or with Newman and Jeff acting said together arms, Taylor, against or either one of and and with force Johnson, malice, of Lee consent and upon express willfully compelled Johnson a and safety, any, the said Lee to leave if with force place against and arms said Lee his will knowingly compelled Johnson where, a of resistance to commission and case perpetra- tion of defendant said offense of it was robbery, reasonably apparent to and those with him that said and acting Lee Johnson naturally death, lose his further exposed life; be and necesarily likely you natural, that, believe knowing necessary these conse- probable, any, him, if defendant if quences, any or other with person) any, acting so said Lee Johnson to compelled position, such of said Lee Johnson such placing position, any, if was in pursuance rob, said any, thereof, if conspiracy furtherance aid and that while in B. Buchanan, E. position resistance of said perpetration shoot robbery, any, if attempted innocently Johnson, and kill or June, 1898, said Lee about 9th day Texas, Coleman County, so, but intending do intending actually kill attempting if parties perpetrate robbery, any, that said was caused and killing brought about the acts directly by defendant, or those if said Lee acting so any, compelling Johnson to be and remain in said instructed position,—then you are that defendant would be the first guilty you murder in degree, will verdict, in your find and assess hereinbefore as punishment believe, instructed. If you do not so think the acquit.” above-copied charge presents the law very clearly applicable 77, one, facts. Article Code, Penal “If a provides: any by employing offense, child or person other not be punished can to commit or taken, means such by any where it laying poison may be taken, intent or other by shall be preparing a himself, means intent injure person may such indirect shall other means person thereby injured or by any cause another to person receive an property, injury n offender the use of indirect becomes a principal.” means Hurt, In 702, Blain Judge Criminal Appeals, court, if delivering opinion “Again, person crime, instigates agrees with another to commit a person from, likely to be .so commits a crime different instigated intended, of, caused the reasonable result crime become com fact, and, its instigator accessory present mission, is thereto.” in Reddick v. Commonwealth principal Again, Reporter, Southwestern the court (Kentucky), approved to the ex evidence, “If believe from the charge: jury following doubt, maliciously, willfully, clusion of all reasonable accused oc Hotel, sеt and burned Miller feloniously fire to residence, Masters reason of Mrs. cupied by find life, her then the should accused burning, jury guilty she lost intended accused not have calculated murder, although .or *12 Bepobts. [Austin, Commenting burning.” of Mrs. as result of such death Masters it, instruction, em- we take “This charge, say: upon law, held same is so uniformly and that the great braces a principle need no special all criminal prosecutions acted upon Now, laid down principle citation applying authorities.” us, find appellant, authorities foregoing question for the others, to the scene of the homicide with several went together forced deceased to train; robbing car, down the door of the express after stopping train> would engineer been some one warned having previously .car, end them from rear сommence shooting probably Defendant, statement were. in his own where the coaches passenger com- the same was above, this, admits quoted knowledge Johnson was to the time taken prior municated to reasonable, nat- for the car. Then be responsible certainly wit, ural, deceased in a placing result his probable we think life. Therefore where he would danger, lose probably clear court’s as above was a copied proper presentation Taylor this case. law to the facts the trial of applicable upon State, ante, p. assignments, all of reviewed various carefully appellant’s have taken, will say, think well in passing,
and do not of them are on circumstantial we do think court erred refusing no evidence, as contended There strеnuously by appellant. appearing record, error in is affirmed. judgment Affirmed. absent. Henderson, Judge, Judge. Presiding DAVIDSON, regard The bill of exceptions Warren shows no reversible error. While I believe juror juror, cause for have been sustained to this challenge regard should yet this was-waived refusal to exercise his by appellant’s peremptory challenge could done. When the cause for challenge, overruled, exhausted juror having without accepted peremptory legally objectionable Thereafter there was challenges. was not satisfied juror jury. If placed Warren, exercised challenge. he should have juror peremptory authorities, so, done he is in no For Not having position complain. Proc., eleventh sec. 756. Warren was the White’s Ann. Code Crim. see in, bill of sworn twelfth admitted juror Griggs, juror, to have been exceptions qualified. motion without was overruled rehearing
[Note.—Appellant’s written opinion.—Beporter.]