27 Tex. Ct. App. 415 | Tex. App. | 1889
Lead Opinion
This is a conviction for murder of the first degree, with the death penalty.
At the May term, 1887, of the district court of La Salle county, appellant was indicted for the murder of C. B. McKinney. On the thirteenth day of May, 1887, the court of its own motion made an order, changing the venue of the case to the district court of Bexar county. When this order was made» appellant objected to the case being sent to Bexar, that county being out of that judicial district. The learned judge filed reasons for sending the case out of his district; which reasons are quite satisfactory. (See art. 576, Code Crim Proc.)
On the trial the State, over objection, proved by S. Y. Edwards that, about two or three weeks before McKinney was killed, defendant McCoy told the witness, in the presence of others, in Butler’s saloon, in Cotulla, La Salle county, that if C. B. McKinney ever came to Twohig he had better come shooting, as he intended to kill him, etc. Counsel for appellant objected because these threats did not tend to prove appellant a principal actor in the murder of McKinne'y, or to show a conspiracy with Bud Crenshaw to kill him, the fact being that Crenshaw was the actual perpetrator of the crime.
Appellant was present when Crenshaw killed deceased, and these threats were introduced as cogent facts in corroboration of the attending circumstances which established that there was not only a conspiracy to murder deceased, but also that Crenshaw and appellant acted in concert in the killing of McKinney. These observations apply to the competency of the
Upon cross examination of the witness Gallaway, counsel for appellant asked him: “ Were you not a witness in behalf of Simpson De Spain, a nephew of the defendant, when De Spain was tried for murdering a Mexican, and did you not voluntarily testify in behalf of De Spain; and, after you charged Dow White with raping your daughter, did you not endeavor to get this defendant, Jim McCoy, to procure false testimony against said Dow White, which he refused to do?” Counsel for the State objected because of irrelevancy. The objection was sustained and appellant reserved a bill.
“A witness can not ward off answering a question material to the issue on the ground that it imputes disgrace to himself, if such disgrace does not amount to crimination.” This is the doctrine as stated by Wharton. (Crim. Ev., sec., 473.) “A witness may, upon cross examination, be asked whether he has been in jail, in the penitentiary, or State prison, or any other that would tend to impair his credibility.” The facts proposed to be proved by this witness not being material to any issue in the case, the court acted properly in excluding them.
When Edwards related the threats, etc., made by the appellant, his counsel moved to postpone the trial because surprised by this testimony. It appears that Edwards had testified before the examining court, but had not mentioned these threats. He states that these threats were made in the presence of several persons; naming them. The threats were that in the presence of Foster Cope, Geo. Salmon and Tom Gerdner, at Cotulla, defendant told the witness Edwards that if McKinney ever came to Cotulla he had better get off the train shooting or he would never get away alive. In this there is no threat in terms to kill deceased.
How appellant moved to postpone to procure the attendance of Cope, Salmon and Gerdner to prove that they “were never present at the time when he, defendant, threatened to kill deceased,- or said if he, deceased, ever came to Tivohig he had better get off the train shooting.” Edwards swears that defendant said if McKinney came to Cotulla, etc. Appellant swears that he could prove by Cope, Salmon and Gerdner that defendant never said that if McKinney came to Twohig, etc. Edwards did not swear that defendant stated to him that if
The court did not err in refusing to charge the law of murder of the second degree. Crenshaw killed McKinney, and if appellant is criminally responsible at all for the homicide, the grade of the offense under the facts is not short of murder of the first degree.
At the request of appellant the court gave this charge to the jury:
“The defendant asks the court to charge the jury that before you are authorized to find defendant guilty, you must believe from the evidence, and the evidence alone, and beyond a reasonable doubt, that the defendant either shot and killed the deceased, C. B. McKinney, or was present acting with some one else in the killing of McKinney. Therefore, if you find from the evidence that one Bud Crenshaw shot and killed C. B. McKinney, and that such killing was with express malice as defined in the general charge, and that immediately afterwards the defendant shot at, and shot, S. V. Edwards, and that this was the same time and place of the shooting of deceased, McKinney, and that the defendant did not shoot at C. B. McKinney, or offer any violence towards the deceased, then, before you would be authorized to find this defendant guilty, you must believe from the evidence, beyond a reasonable doubt, either that this defendant and Bud Crenshaw had previously entered into an agreement to kill the deceased, C. B. McKinney, and the deceased was killed in pursuance of such agreement, while the defendant was there present, or that Bud Crenshaw shot and killed McKinney, and that the acts of the defendant were enacted for the purpose of aiding or abetting the said Crenshaw in the killing of said McKinney. And if you should find from the evidence that one Bud Crenshaw shot and killed the deceased, and that all that was then done by the defendant was to shoot S. V. Edwards, then before you could find this defendant guilty you must find from the evidence, beyond a reasonable doubt, that the shooting of Edwards was done for the purpose of aiding or abetting said Crenshaw in the killing
“J. M. Eokford,
“Teel & Haltom.
“The foregoing charge is given in subordination to the general charge regarding principals.
'Geo. H. Noonan, “Judge.”
There was no objection at the time to the qualification, viz: “ The foregoing charge is given in subordination to the general charge regarding principals,”—the objection being urged first on the motion for a new trial. This being the ease, was the qualification calculated to prejudice the case of appellant?
In passing upon the question of injury vel non, or probable injury resulting from a positive error or omission in the charge, the whole record must be looked to: 1. The charge as a whole; 2. The statement of facts. The learned judge, in the charge already given, had clearly and concisely hinged appellant’s guilt upon the fact as to whether he was present and, knowing the unlawful intent of Crenshaw, aided and encouraged him in the killing, or whether the appellant had advised or agreed to the offense and was present when the same was committed.
Appellant’s requested charge, above, is predicated upon the theory that Crenshaw shot and killed McKinney, unaided by him in any manner. That the killing of McKinney was a distinct transaction from that between appellant and Edwards ; that, if this theory of the case is not shown to be true, it is left in doubt, and should have been submitted to the jury in a clear, simple and affirmative charge, without qualification, or being subordinate to any other charge. This is a strong position and if sustained by the evidence, or the weakness. of the State’s case, should be ground for a reversal of the judgment.
As Crenshaw killed McKinney, it devolved upon the prosecution to prove beyond a reasonable doubt: 1, that Crenshaw and appellant acted together in the killing of McKinney; or, 2, that appellant was present; that he knew of the purpose of Crenshaw to kill deceased, and with this knowledge he aided
Looking to the facts bearing upon this question, the most shadowy, gauzy veil of a doubt does not remain. Our judgment is perfectly clear and satisfied beyond any sort of doubt or misgiving as to the truth of each of the propositions, namely, that the appellant and Crenshaw acted together in the murder of C. B. McKinney; that it was thoroughly agreed between them before the deceased and Edwards reached appellant’s house that McKinney should be killed. Each knew minutely the part to be performed by him, and executed it with precision and fatally to deceased.
, Under this state of case, if the learned judge had refused to submit to the jury the requested instructions (those given with qualification), in the absence of exceptions for the omission or refusal, we would not be warranted in reversing the judgment. Other objections were made to the charge in the motion for new trial, but we are of opinion that none are well taken.
If correct in the above observations as to the facts of this case, it is unnecessary for us to discuss the sufficiency of the evidence to support the conviction.
Appellant has been awarded a just, cautious and fair trial. His triers have convicted him of one of the most heinous crimes known to our laws, inflicting upon him the most terrible punishment. While this is true, a moment’s reflection, carrying him back to the scene of the deliberate, bloody assassination of 0. B. McKinney, will convince him that he is the author of his present calamities and fearful doom.
Finding no error in the judgment, it is affirmed.
Affirmed„
Rehearing
The only ground upon which this motion is based and urged in the able oral argument of counsel for appellant is a supposed error into which we have fallen with regard to appellant’s motion at the trial for a postponement of the same to enable him to procure the attendance of witnesses to contradict the witness Edwards as to threats made by appellant against the deceased. We discussed the subject from the statement in the bill of exceptions itself. The bill of exceptions states that the threat or supposed threat was to be executed when McKinney, the deceased, should get off the cars at Cotulla. It is urged that a clerical mistake has occurred in preparing the bill, and that in fact Twohig, and not Cotulla, was the place named by the witness Edwards, and we are referred to other portions of the record in substantiation of this assertion. We are satisfied upon a re-examination of the record that the mistake in the names of the two places has occurred as stated—that Twohig must have been the place stated by the witness.
But, conceding this to be true, the sole object of the proposed testimony was to contradict the witness as to threats made by appellant against the deceased at the time and place mentioned. Suppose that evidence had been adduced, or that it could be adduced on another trial, is it at all likely or probable that it could or should have any effect in changing the result? This is the. question, and the only pertinent question, as the matter is now presented to us.
Viewed in the light of other testimony at the trial, we think the proposed testimony could have had no possible weight in changing the result. The witness Gallaway testified most positively, locating time, place and parties present, not only to threats made by appellant against McKinney, but to the fact that appellant tried to get him, witness, to aid and assist him in the killing. These threats, according to that witness, were made more than once. This witness’s testimony is not contradicted or attempted to be contradicted by Tompkins or Garcia, the parties stated by him to be present at the time these threats were made. If it was necessary to prove previous threats on the part of defendant, then this witness’s testimony abundantly proves threats of a more hostile character than those testified to by the witness Edwards. How, then, could the dis
We have found no reason, upon a mature reconsideration of this record, why our former affirmance of the judgment should be set aside, and the motion for rehearing is, therefore, overruled.
Motion overruled.
Opinion on the motion delivered March 23, 1889.
