*1 572 Rudalph
Ex Parte Martinez. 26,038. No. October 1952. Judge Presiding. Parish, Hon. O. L. McDonald, Angelo,
William C. appellant. San George Blackburn, P. Attorney, Austin, State’s for the state. Judge. MORRISON,
Appellant, having been arrested for murder and the district having bail, refused corpus to set sued out a writ of habeas Judge before the District of the 119th Judicial in order District might that he hearing writ, be admitted to bail. At the of said he was custody. judg- refused bail and remanded to From that appealed ment he has to this court. record,
After opinion careful consideration of the it is our bail, is entitled to and we have fixed the amount $5,000. judgment aside, bail the sum of will be set and the will be admitted to bail and released from cus- tody, upon the execution him $5,000, of a bond in the sum of good with sureties, and sufficient conditioned as the law directs. accordingly. Ordered
Robert Ernest Miers v. State. 25,654. February 6, No. 1952. Rehearing Denied June 1952. Appellant’s Rehearing Second Motion for Denied (Without Opinion) Written 1952. October *2 Burkett, Special Judge Presiding. Hon. Joe Hensley Douglas McGuire, Antonio, Joe Lee and J. San appellant. Anderson, Attorney, Wood,
Austin F. District RicTmrd J. George Attorney, Antonio, District Block- Assistant San and P. bum, Attorney, Austin, for State’s tht state. Judge.
MORRISON, murder; punishment, The death. offense is filling night Four witnesses at the station on the robbery They of the testified for the said that state. companion pistols up and his them and Thorbus held with money, having searched the establishment for the owner refused money to disclose where he had his hidden.
They during related that this search Thorbus being separated, became there several rooms the combination filling station, separation residence; during store deceased, neigh- premises owner and the who was his friend, evidently simultaneously bor and idea conceived the overpowering attacked the robbers. The owner of the station Thorbus, appellant. and the deceased went in search of person nearest deceased at the time he received the fatal *3 premises. wound was the wife of the owner of the She testified being through by appellant pistol point she was marched at one room of the entered. establishment when deceased She stated right got “jumped my my that deceased toward side. As he right grab Miers, side as he made a like that for who was in me, jumped back of then second later he backwards to right up this, side of me in front of me with his hands like me, and a shot was fired in the and kind back of it of knocked that, lunged said, Mr. Sendemer like and he forward and he ‘Oh, my Cod’, grab, tussling and made a and I heard some back momentary of me.” She further testified that a scuffle ensued her, slam, around, behind that she heard a door that she looked gone, falling found that and saw deceased floor.
It was further established that Thorbus shot the owner premises, though fatally, during not course of melee. performed autopsy doctor who testified that it would possible be for one who had received a wound similar to the engaged momentary strug- one inflicted on deceased to have in a gle following receipt of the same.
Appellant testified; tragic spent recounted a sordid and life dependent neglected in a children, home for and the National Training Boys, institutions; School for and Federal correctional holdups preceding and then told of a series of the one on the night charged in the indictment. corroborated the robbery, except state’s version of the that he stated that he hoping had fired him, to one side of deceased to scare but that him; that at to come continued who to deter deceased failed with deceased coat, he tried to hit grabbed and that deceased his Appellant stated get him. pistol from order to loose got hand pistol out juncture at this the deceased causing same, pistol be with the hit him over the head discharged. urged by appellant. Exception No. 1 the Bill of consider We grant his motion complains
It of the court to the failure severance. following part find as a certificate:
We of this bill the opinion a sever- “The Court was of the ance Miers would have a continuance in both the necessitated case, case and the Johnson for a therefore motion severance is overruled.”
Appellant accepted containing this bill the above certificate thereby. is bound P., Under Article C. Digest, C. Note Texas Crim. 622(2), Law holding we find numerous re authorities that a quest for permitted P., severance under Article C. C. will granted not be “operate to do so where would as a continuance party.” either Bill complains No. 2 of the court’s failure to grant appellant’s *4 quash special motion to upon the venire based following: the 1. That the in court his order failed direct to the officer executing the writ toas the manner of service. 2. had, That the court appellant, without consent ex- many cused as as 50 prior of the veniremen to the time the case was called for trial. that, The bill shows at the time presented the motion was him,
to the court pro dictated a nunc tunc order to the sheriff directing him to by summons the venire for said case mail. qualified The court the bill with to the reference veniremen whom he had excused as follows: only “That presented legal those veniremen statutory who a * * *” by
excuse were judge excused the trial 576 brought in if any to veniremen
“That the offered have Court no but a of those desired defense would furnish list counsel brought again furnished, matter was not such list and the was **up 597, by 52nd amended It will noted that Article as be feel Legislature, motion filed. We effect when was in original pro in tunc order cured the defect nunc order. court, by we excused
With reference to the veniremen appellant complain feel that should have availed to here he opportunity offer to himself of him the court’s afforded brought have the veniremen in. absent applicable a under old Article For of the discussion law amendment, 597, stringent which than the was more State, we refer to R. 222 Brown v. 81 Tex. Cr. S. W. injury upon appellant re wherein we held it incumbent show sulting summoning card; by post McKee from the venire (2d) 1058, we v. Tex. R. 102 W. where 132 Cr. S. gave stating qualification effect court of the legal possessed veniremen ex whom he had excused were emption; Digest, Law and to those cases in Texas cited Crim. (5). 11661/2 complain Exception re-
Bills of Nos. 3 court’s copies petition fusal filed admit evidence certified County 1942, praying in the appellant Juvenile Court Harris children, dependent to- and his brother declared be gether prayer. with decree such any theory under We cannot conceive of such evidence would be relevant. Exception complains
Bill of No. 5 remark of the testifying which occurred after he had while interrupted by objection been an of the state. The court seems objection to have overruled the because he “Go state’s said Evidently, ruling ahead.” did not understand the *5 court, asked, of the “You because he turned court to the telling it, keep your meant me to re- honor?” to which the court plied, right your story.” “Go ahead and tell
An appellant examination of the reveals that in fact record near the conclusion story and was his life had told the entire of com- gave he now the answer of which thereof when the court impress us as plains. facts, remark not this does Under the weight upon of the evidence. comment complain failure of of the Bills Nos. 6 and 7 of This, charge he evidence. claims the court to on circumstantial they testified that required witness to have no state been because trigger actually the death appellant pull the that caused saw that he did not shoot of deceased and deceased, testified because accidentally in himself but that deceased shot scuffle. charge
These circumstantial evi- facts do not warrant on dence.
It is the well rule law in as will established of this Digest, be seen from the cases cited in Texas Criminal Law 814(17), testimony any that the case of homicide direct from bringing that the source accused was an actor in the death about of the deceased characterizes the case as one of direct and not supplied testimony circumstantial evidence. This direct by the premises. wife of the owner of the Exception Bill complains No. 8 the failure of give requested charge as follows: fired, any, you that if
“If believe that shot did, deceased, Sendemer, A. same was not killed the J. if the Miers, you by Defendant, Ernest if have a fired Robert or thereof, you acquit Defendant and reasonable doubt should say verdict, guilty’.” ‘not charge requested is restrictive. This is true because too
the facts of case entered show that Thorbus committing place purpose act of the robbery. They business for the principals then amenable under the became their criminal law enterprise. acts other the furtherance of though requested charge, now contends incorrect, charge put the trial court on notice he wanted a by on the claimed defense as testified him.
We must first determine whether the facts testified to appellant constituted a defense at all. He stated he did not
578 accidentally by fired shot, was that the same fatal but fire the endeavoring act thwart his was while deceased deceased robbery.
of one 55 W. Taylor 41 Tex. R. S.
In v. Cr. robbing train, fire- a took robbers, in the act while juncture, one engine express car. At this to the man from the and train, rear out of the Buchanan, passenger came on the fire, in the firing. began Buchanan’s There a return of tried The robber was progress killed. thereof the fireman was the fireman. murder of charge it objections court’s One of the death came to his even if the foreman authorized by conviction force, unexpected by a mere outside, independent an obligation passenger under to shoot. who was no pro- discussing same, Judge Henderson, made this found statement of law: If the question causal connection.
“The whole here is one of appellant which ooccasioned set in motion the cause here he deceased, doctrine that death of to be a sound we hold it culpable deed with his own would be as if he had done the as hands.” here in motion the cause hold set
We testimony deceased, the death and therefore his occasioned did not a defense.
Finding error, judgment no trial court reversible is affirmed. REHEARING.
ON APPELLANT’S MOTION FOR Judge. DAVIDSON, reflected in the action of the insists that error is overruling court in for severance. In this con-
trial his motion nection, qualification the bill of because of the trial court’s grant- “opinion” that it to the effect was his ing of a a continuance of the severance would have necessitated case, original challenges opinion in our the conclusion ruling. “opinion” upholding He the trial court’s stresses that certificate, fact, of the trial court as to this matter is not a granting “operate that the of the severance would as a continu- ance,” provided by as Art. P. C. C. not consti- course, “opinion” trial does
Of “opinion” merely that the “fact,” court’s such the trial tute operate the case continue would of the severance here, But, statutory the bill requirement. not meet the does *7 applica- hearing the exception of at time of the shows that the incorporated which evidence heard is tion severance was concluding in the the trial court in bill. evidence warrants This operated to con- would have that the of the severance the tinue case. reflected remain error not
We convinced that reversible is overruling the motion sever. the to quash venire was that motion to insists the exception presenting well taken. that, upon shows The bill of this matter state, special a the of two hun- motion of venire fifty capital dred names was ordered drawn in this and another felony case. The usual contained no order was in the form and reference whatsoever as to was to summon whether the sheriff person by by mail, provided the veniremen in or first-class as P., Art. C. as C. amended. by by veniremen were first-class summoned the sheriff overruling quash,
mail. Before to the motion the trial court dic- pro order, directing tated a nunc tunc Bexar the sheriff of County by to summon the mail. veniremen nothing
There pro is to show order that this nunc tunc was, fact, the order by in truth and in made trial instance, in the first actually or that the order as then made being and entered subject of record was im- incorrect peached by pro the nunc tunc order. pro then,” Nunc purpose tunc means “now for and its is to
give effect to and record that which was in fact done but correctly was not purpose entered of record. It is not the of a pro legal nunc make, tunc order to does it have nor effect making, entering independent a new an order and new order having record as to a transaction occurred at prior date. actually
Inasmuch as the order for the venire as entered impeached showing herein testimony was not and there was no in fact did, special the trial court at time the venire ordered, pur- also direct the sheriff as be method summoning veniremen, sued in question must be de- entered, which sufficiency first upon of the order termined sum- the veniremen were be reference to whether made no by person or mail. moned summoning venire or and manner of service
The mode non-compliance therewith consti- matter, procedural is a Matthews v. only injury shown. when has been error tutes this, 2d 817. As to R. 239 W. 156 Tex. Cr. S. who exception number of veniremen does not reflect the bill in answer to actually in court attended and were that, mail; reflect with- does summons the bill of jury exhausting challenges, appellant’s was ob- out all his appear. tained from those who did failed to show remain convinced that has We overruling injury quash in the his motion to venire. *8 Believing originally, correct was reached conclusion rehearing the motion for is overruled.
Opinion approved by the court. v.
Alton Paris State. 25,861. June 1952. No. by Supreme Court of the of Certiorari Denied Writ United 1952. States October Judge Presiding. Williford, Hon. R. W. Houston, Counsel, Ramey, Wright, and Ben N.
Mandell & appellant.