Morris v. State

30 Tex. Ct. App. 95 | Tex. App. | 1891

WHITE, Presiding Judge.

This appeal is from a judgment of conviction in the court below for murder in the first degree, the penalty being assessed at death.

There are twenty-two bills of exception contained in the record, and the same are here assigned as errors for which the cause should be reversed upon this appeal. We will notice the second bill of exceptions first. This bill complains that after the jury had been impanelled and sworn to try the cause the court suspended the proceedings before the jury in order to have the defendant arraigned, he not having been arraigned prior to that time. In the order of proceedings in a capital case the code of procedure does not prescribe the exact time at which a defendant shall be arraigned. Code Crim. Proc., arts. 508-512. It has been held, however, that the arraignment should precede the trial proper, but it is also well settled that a conviction will not be set aside on appeal because the record shows an arraignment at an improper time. Cordova v. The State, 6 Texas Ct. App., 207; Willson’s Crim. Stats., sec. 2108. Ho material error is shown in the matter as presented here.

The first bill of exceptions is with reference to the ruling of the court as to the competency of the juror Odell. With regard to this, the explanation of the trial judge shows that the objections urged are not well taken under repeated decisions of this court. Steagald v. The State, 22 Texas Ct. App., 464, and authorities there cited.

By defendant’s third bill of exceptions it is shown that the court overruled the objection of defendant to witness Powers, on redirect examination by the State, testifying as to the condition of the body found in the ravine and the character of the wounds upon it. This testimony was objected to, because the same was not in rebuttal of anything that was drawn out by the defendant on cross-examination, and because the witness had not qualified himself as an expert as to the character and effect of such wounds. The witness stated that the body was in an advanced state of decomposition, that the left jaw was blown off and. torn back as if it had been shot with a shotgun, and that the wound in the jaw had the appearance of being made with a shotgun/ while the wound in the back had ifire appearance of being made with a 32 Winchester bullet. The rule which confines the cross-examinatian of a witness to questions propounded on examination in chief, or in rebuttal to his cross-examination, does not exist in Texas. Rhine v. Blake, 59 Texas, 240. And besides, the common law rule with regard to the examination of witnesses is practically and entirely abrogated in effect by that provision of the Code of Criminal Procedure which expressly declares that the court shall allow testimony to be introduced at any time before the argument of a case is concluded, if it appear that it is necessary to a true administration of justice. Code Crim. Proc., art. 661; Willson’s Crim. Stats., sec. 2312. The exercise of such discretion by the trial court will not be revised unless it plainly appears to have been abused. Ro error is shown in so far as it was objected that the testimony was not in rebuttal is concerned.

As to the objection that the witness did not qualify himself as an expert, the matters about which he testified were not matters of skill demanding the testimony of an expert. It does not require an expert to tell that a human body is in an advanced state of decomposition, nor that the wound had the appearance of having been made with a shotgun or with a Winchester bullet, where it is shown that the witness is familiar with shotguns and Winchesters.

Defendant’s fifth bill of exception was to the'court’s permitting one Byers, a witness for the State, to testify to the finding and giving a description of another dead body discovered several miles from the dead body of Roberts, the deceased involved in this case. The explanation of the learned trial judge to this bill is that he admitted this testimony for the purpose of identifying said body as that of one Moss, who had been a traveling companion of the deceased Roberts and the defendant, and who had disappeared at the same time that deceased Roberts disappeared. The testimony was admissible for the purpose of showing the motive, knowledge, and intent on the part of this defendant, and also as a circumstance developing the res gestee of the transaction under investigation. Willson’s Crim. Stats., sec. 2496; Moore v. The State, 28 Texas Ct. App., 377; Barton v. The State, Id., 483; Blackwell v. The State, 29 Texas Ct. App., 195. The learned trial judge in his charge limited and restricted the objects and purposes for which this testimony was adduced and for which it alone could be legitimately considered by the jury.

Defendant’s seventh bill of exception was taken to the admission, over his objection, of the testimony of one Patrick about the finding of a watch in a well that he was cleaning out in the town of Vernon, which watch was found some months after the arrest of defendant upon this charge of murder. This testimony was legitimate in the light of the other evidence in the case. It was shown that the defendant on the day of his arrest was stopping at the wagon yard in Vernon in which this well was, and after he had been notified of the suspicion resting against him for the murder of these parties he was permitted to go about the well and water his horses therefrom. The watch found in the well was identified as the property of the deceased.

Defendant’s tenth and thirteenth bills of exception relate to a certain letter found upon the defendant after his arrest, which letter purported to be from the deceased Roberts to the defendant, asking him to take Care of his (deceased’s) property. The court properly admitted this testimony as a fact going to show defendant’s guilt. The letter was identified as the one taken from the defendant, and was proved to be in the handwriting of the defendant himself by a witness who had seen him write and was familiar with his handwriting.

Defendant’s eleventh and sixteenth bills of exception complain of the admission by the court of the testimony of a watch, ring, and other contents of a trunk, which trunk had been in possession of the defendant and was found in his room at his boarding house after his arrest. The articles taken from the trunk and permitted by the court to be produced in evidence were identified and proved to be the property of the deceased Roberts and his companion Moss, who had also been killed at the same time and near the same place where Roberts was killed. This evidence was legitimate as tending to show motive (robbery), fruits of the crime in defendant’s possession, and form links in the chain of circumstances going to establish defendant’s guilt.

The seventeenth, eighteenth, nineteenth, twentieth, and twenty-first bills of exception are complaints with reference to the service of a copy of the venire, the sheriff’s amendment of his return on the venire, and matters pertaining to the motions and counter-motions made by the defendant and the State with regard to the proceedings antecedent to the entry of a final judgment nunc pro tune. These bills show no intrinsic merit, and are fully explained where they appear at all to have merit by the learned trial judge.

We have considered all the questions raised upon this appeal, and have found no matter of sufficient importance to require the reversal of the verdict and judgment rendered.

The evidence shows that this defendant went off upon a hunt with Roberts and Moss from Hardeman to Greer County, and that in Greer County he murdered both of his companions—murdered them for the purpose of obtaining possession of the horses and wagon and other property which belonged to. them. The evidence is circumstantial in character, but it is most cogent and conclusive, and no fair minded, dispassionate judgment passing upon it as it appears in this record could arrive at any other conclusion than that this defendant was the. guilty agent who perpetrated the foul murder, for which he has had a fair trial and been legally and justly convicted.

The judgment is affirmed.

Affirmed.

Davidson, J., being disqualified, did not sit in this case.