21 Tex. Ct. App. 1 | Tex. App. | 1886
I. An indictment similar to the one in this case was passed upon by this court in Carr v. The State, 19 Texas Court of Appeals, 635, and was held to be sufficient. The questions now presented upon the indictment were in that case fully discussed, and, without repeating the discussion, we adhere to that decision, and hold that the exceptions to the indictment in this case were properly overruled.
II. Defendant’s application for change of venue was based upon botli the statutory grounds, and was in due form of law. (Code Crim. Proc., Art. 578.) It was controverted in the manner required by law, by affidavits attacking the means of knowledge of the compurgators. We understand the affidavits to question the means of knowledge of the compurgators as to both of the alleged grounds of the application. The issue thus formed was tried by the court upon evidence adduced by both parties. As to the existence of the grounds of the application, the evidence is conflicting, and it was shown on the part of the State that the means of knowledge of the compurgators, especially two of them, as to the existence of said grounds, were quite limited, being confined to hearsay and to their,knowledge of the sentiment of the people in one particular neighborhood with regard to the case. We can not say that the court erred in its judgment refusing the change of venue. The granting or refusing the application rested in the sound discretion of the trial court, and on appeal the action of said court upon such application will not be revised, unless it should appear that said discretion has been abused. (Grissom v. The State, 8 Texas Ct. App., 386; Myers v. The State, Id., 321; Magee v. The State, 14 Texas Ct. App., 366.) It does not appear that there has been an abuse of such discre- n tion in this instance. In all respects the procedure upon the application has been regular, and the evidence admitted upon the issues formed was competent under the decisions of this court. (Carr v. The State, 19 Texas Ct. App., 635; Davis v. The State, Id., 201.)
III. When the State’s witness, Hester, was placed upon the stand to testify, the defendant objected to his competency, upon the ground that he had been convicted in this State of a felony, and in support of said objection produced a judgment and sentence of the district court of Gonzales county, showing that said Hester had been duly convicted in said court, on July 5, 1884, of the theft of sheep of over twenty dollars in value, and sentenced
Upon this question Mr. Bishop says: “In the absence of fraud a pardon will be good, though it states the date of the conviction incorrectly, if it was intended to cover, and does cover, the particular offense.” (1 Bish. Cr. Law, .sec. 906, citing Com. v. Ohio and Pa. R. R., 1 Grant., Pa., 329.) In Hunnicut v. The State, 18 Texas Court of Appeals, 499, this court cited and adopted the above quoted text of the distinguished author. That the date of the conviction as recited in the pardon is a date upon which such conviction could not legally have been had, would not, we think, change the rule. It is in any case a question of identity, the question being was the pardon intended to cover, and does it in fact cover, the particular offense of which the defendant was convicted? In determining this question the court is not confined to the record alone, but may hear evidence dehors the record. It is a question relating to the competency of the person to testify as a witness, and its determination is confined exclusively to the trial judge. It is not shown by the bill of exception, or in any other way by the record, that the State failed to prove that the Hester named in the pardon was the same Hester named in the judgment of conviction, and that the conviction named in the pardon was the same conviction evidenced by the judgment. We must therefore presume that such proof was made, to the satisfaction of the trial judge. We hold, therefore, that the objections to the pardon, upon the ground of variance between its recitals and the judgment of conviction, is not maintainable.
IV. It was further objected to the pardon that it was granted to avoid a decision of this court, wherein we held that a former
V. That a previous conditional pardon had been granted to and accepted by the witness Hester cannot, we think, affect the validity or effect of the full pardon subsequently granted to and accepted by said witness. We know of no such limitation to the pardoning power. The pardon in question in this case is a full pardon, and had the effect to restore Hester to his competency to testify as a witness. The former pardon in this respect was imperfect, and we can see no good reason why the executive may not grant a further and full pardon, as if no pardon had been previously granted.
VI. Another witness, A. J. Darnell, a convicted felon, who had been pardoned by the Governor, was also permitted, over defendant’s objections, to testify in be.ialf of the State. The same objections are urged to his pardon as to Hester’s, and what we have said with regard to Hestqr’s pardon and competency as a witness, is equally applicable to DarnelL
VII. Again, it is urged by defendant’s counsel, that public policy forbids the affirmance of a conviction obtained by the means resorted to in this cause to obtain testimony against the defendant. It is shown by the record that the witnesses, Hester and Darnell, were pardoned for the felonies of which they had been convicted, and under which convictions they were serving terms in the penitentiary, that they might testify in behalf of the State against the defendant in this cause. It was further shown that Hester was a principal in the crime for which the defendant was in this case being prosecuted, and that Darnell was probably an accomplice in the same crime. It may be that it is contrary to a sound public policy to pardon convicted felons in order to use them as witnesses to convict supposed offenders. It is not for this court to determine that question. Our function is to decide what the law is, not what it ought to be; to decide what a pardon is, and its effect, not when or for what reasons or
In the case under consideration the pardons are valid, and by virtue thereof, under the law, the witnesses were' competent, and there was no error in permitting them to testify.
VIII. There is no error in the charge of the court. It is full, clear and correct upon every issue and phase presented by the evidence; and in so far as the special instructions requested and refused were correct and applicable, they are contained in the charge given.
IX. There remains but one question to be determined, and that is the sufficiency of the evidence to support the conviction. Two of the State’s witnesses, Hester and Collins, testified that they participated in, and were principles with the defendant in the commission of the burglary and theft. Darnell, .another State’s witness, was shown, we think, to bean accomplice within the meaning of the statute relating to accomplice testimony. It is by the testimony alone of these three witnesses that the guilt of the defendant is directly established. Such testimony, unless corroborated by other evidence tending to connect the defendant with the offense committed, will not sustain the conviction. Has such corroboration been furnished by the State? The jury and the learned trial judge have answered this question in the affirmative, and after a thorough examination and careful consideration of the evidence, we have reached the same conclusion. Defendant was absent from home on the evening and during the night of the day on which the crime was committed. He was, during this absence from home, in the immediate vicinity
Affirmed.
