30 Tex. Ct. App. 64 | Tex. App. | 1891
Appellant was convicted of murder in the second degree for killing Mase Burton. The killing occurred in the early part of July, 1888, in the city of Dallas, between 9 and 10 o’clock at night. The indictment charging appellant with the murder of said Burton was presented in the District Court of Dallas County on the 20th day of October, 1888. The judgment of conviction from which this appeal was taken and is prosecuted was entered of date March 11, 1891. There had been an intermediate trial, at which time the appellant had been acquitted of murder of the first degree. When the cause was called for trial on the 11th day of March, 1891, the appellant presented his application for a continuance of this cause, which was overruled by the court. The principal ground upon which appellant’s motion for a new trial is based is this action of the court overruling said application for continuance. The continuance was sought because of the absence of two witnesses, Joe Collins and Frank Gillispie. As to diligence, the application shows that on the 18th day of February, 1891, the appellant caused a subpoena to issue to Dallas County for both of said named witnesses, which subpoena was duly served on said wit
By Frank Gillispie it was expected to be shown that on Monday night preceding the homicide he informed appellant that Mase Burton had been sleeping with his (appellant’s) wife when he was away from home; that Burton told the witness that appellant did not need any wife; that he was going to take her away from appellant, and that Burton admitted to the witness that he had had criminal intercourse with appellant’s wife, and was going to do so again. By Collins it was expected to be proved that Burton, the deceased, was keeping appellant’s wife, and that he had seen Burton with appellant’s wife a few nights before when appellant was down town. On Tuesday night appellant shot and killed Burton. This testimony is alleged to be material in view of the fact that appellant would show that he shot Burton while he was having intercourse with his (appellant’s) wife on the back gallery. Said application does not show or allege that the communication made to him of the infidelity of his wife and. the conduct of the deceased toward his wife as made by the absent witnesses was the first information he had received of such-conduct, and the record shows it was not.
The application shows an utter want of diligence to have the witnesses in attendance upon the court, as well as a want of probable truth of the stated testimony. The application shows that on Monday preceding the killing these two parties communicated to appellant the evidence sought to be obtained. This was in July, 1888. 2sTo process was sought for these witnesses prior to the 18th of February, 1891, although he. had been tried in the meantime for said killing.
Again, if on the 27th day of February, 1891, when this case was continued by operation of law, these witnesses were not present or had disobeyed the process served upon them, it was obligatory upon him to issue attachments for them promptly to enforce their attendance upon the court. This was not done. The application fails to state whether they attended the February term of court or not. The issuance of process, if necessary, after the 27th of February, 1891, was not satisfied by calling for and obtaining a subpoena for said two witnesses. If process was necessary for them after that date, attachments alone would satisfy the demands of the law. Chaplin v. The State, 7 Texas Ct. App., 87; Walker v. The State, 13 Texas Ct. App., 618; Long v.
¡Neither will this court nor the trial court supply by inference and presumption allegations not contained in an application for a continuance which should be stated therein. The application must be complete within and of itself in order to require this court to say it was erroneously refused. Presumption when indulged will and must be in favor of the rulings of the court in reference to the matter complained of, and not against same; and in regard to pleadings, presumptions when indulged must be taken most strongly against the pleader. The pleading is presumed to set forth correctly the matter complained of as desired to be understood by the pleader. Its defects will not be supplied by presumptions on the part of the court.
The probability of the truth of the evidence is not made to appear, but rather the contrary is apparent. If the statements of the two witnesses alleged to have been made to the defendant as to the adulterous acts of deceased with defendant’s wife were true and made to him before the killing in July, 1888, it is not explained why process was not issued at an earlier date than February 18, 1891. This is somewhat emphasized by the fact that in the meantime the defendant had been once tried for this offense, and it is not shown why these witnesses were not under process to attend that trial nor any term of the court prior to February, 1891, although they lived all the time in the city of Dallas.
Again, the probability of the truthfulness of these statements, as well as the materiality of the same, is seriously affected- by the further facts that neither the application nor the statement of facts shows that the killing occurred as soon as these facts were made known to defendant nor upon the first meeting that occurred between defendant and the deceased thereafter; but, on the contrary, it is shown that defendant must
From this evidence it is evident that the defendant armed himself and went to the place of the homicide for the purpose of doing just what he did. He had known of the conduct of his wife for some time and her relations to the deceased. If defendant armed himself under the circumstances and facts detailed in this case and went in search of the deceased and killed him, such killing would not be “sudden passion arising from an adequate cause,” nor would it reduce such homicide to manslaughter. There must not only exist the adequate cause coupled with the defendant’s knowledge of its existence, but the disturbed condition of the mind and the necessary “passion” must also exist in order to reduce the killing from murder to manslaughter. In so far as manslaughter may be involved in the application for continuance, the testimony of the absent witnesses, when viewed in the light , of the record before us and the facts proved on the trial, are not only not material to the theory of manslaughter, but would have been prejudicial to that phase of the case. In the absence of the “passion” that reduces a homicide to manslaughter, the unattended “adequate cause” may become evidence of the most cogent force showing the antecedent malice on the part of the slayer. In such case the “adequate cause,” unattended by the necessary “passion” rendering the mind incapable of cool reflection, instead of constituting an extenuation of-the crime, may and would become an aggravating circumstance attending the commission of the offense. Equally untenable is the position that the absent testimony is material in view of the fact that the defendant killed the deceased while he was in the act of adultery with his (defendant’s) wife. If defendant came upon the parties in the act of adultery he would be justifiable in killing the paramour of his wife if such killing occurred before the separation of the parties. Penal Code, art.
If defendant came upon the parties in the act of adultery and he killed the seducer of his wife before the parties separated, his right to kill could not be questioned, and the proof that the parties occupied this position and relation to each other at the time of the killing would preclude the conviction of the defendant of any grade of homicide. The justification of the homicide is based upon the fact of .that relation to each other of the parties at the time of the homicide. The information conveyed to the husband that his wife had been previously known to commit adultery with the party slain could not materially benefit the husband under such circumstances. Its tendency would not be favorable to the husband unless it operated to put him upon notice of the infidelity of his wife in connection with the party slain. If that be its beneficial effect in this case, it would not be material, because defendant had known of the compromising relation of his wife toward deceased for three weeks at least prior to the time that these absent witnesses should have informed him of the facts.
A careful investigation of the record shows not only that the testimony was not material but that it was not probably true. Rot only is the alleged absent testimony not probably true, but it is not probably true that defendant killed the deceased while he was in the act of adultery with his (defendant’s) wife. .Cole’s testimony excludes that idea as we understand it. The continuance was properly overruled and the motion for new trial based on such ruling was properly refused.
We have considered the bill of exceptions and motion for the continuance as if properly presented to us. The motion itself does not state whether it is the first, second, or a subsequent application. We might, indulge the presumption that it was the first, as the record does not show that the defendant continued the cause; or we might presume that it was the second application, inasmuch as by its allegations it was sought to comply with the statutory requirements of a second application. But we are not required to indulge in presumptions to aid attacks upon judgments of courts of record. The party complaining of error ought to be able to point it out plainly or with reasonable certainty at least. Our Supreme Court in passing upon this same question said “the record shows that the case had been pending in court some two or three years when the application was made, but whether it had been previously continued by appellants is not shown; but if it had not been, it was their duty to have shown it in their bill of exceptions to the refusal of their application; for, as has often been said, it is for the party alleging error to lay his finger upon it, or this court
Finding no reversible error in the record, the judgment is affirmed.
Affirmed.
Judges all present and concurring.