Powers v. State

23 Tex. Ct. App. 42 | Tex. App. | 1887

White, Presiding Judge.

This appeal is from a conviction of murder in the first degree, with a life term in the penitentiary assessed for punishment. The record is quite voluminous, containing seventeen bills of exception reserved to matters occurring during the progress of the trial, a motion for a new trial embracing twenty-five specific grounds, and a motion to stay proceedings based upon five grounds. We do not propose to notice, much less attempt to discuss in this opinion all the questions thus raised, but will select for examination only those which we deem worthy of discussion, stating in passing that such as are not discussed have been fully considered and found to be without merit.

1. Of the special venire ordered and selected, twelve of those whose names appeared in the writ were not summoned. In his return upon the writ the sheriff had set down the names of these twelve in a row, one under the other, numbering them from one to twelve. Opposite No. 1, which was the name of O. H. Harlan, was written, “not found in Taylor county after diligent search,” and opposite each of the following names, and under the words written opposite Harlan’s name, were ditto marks, indicating that the same return as to Harlan was applicable to each of the others. Defendant moved to quash the writ because the return was insufficient under the statute which requires that “if any of those whose names are upon the list have not been summoned the return shall state the diligence that has been used to summon them and the cause of the failure to summon them.” (Code Crim. Proc., art. 614.) On a counter motion of the district attorney to that effect, the sheriff was permitted to amend his return as to each of said twelve venire men, the amendment being that the particular juror named had either moved out of or was absent from tne county. Bills of exception were saved by defendant to the overruling of his motion to quash, to the amendment of the return, and to the legal sufficiency of the return as amended. Fone of the objections are well taken; the amendment was proper. (Murray v. The State, 21 Texas Ct. App., 466.)

2. As to the action of the court in overruling defendant’s challenges, for cause, and thereby forcing him to use peremptory challenges upon one or more supposed incompetent jurors, suffice it to say the record does not show that defendant exhausted his peremptory challenges, and in consequence had an objectionable juror forced upon the panel, and he has, therefore, no apparent ground for complaint in thp premises. (Loggins v. The State, 12 Texas Ct. App., 65; Ward v. The State, 19 Texas Ct. App., 644; I. & G. N. Ry. Co. v. Underwood, 64 . Texas, 466.)

3. It is shown by a bill of exceptions that the court refused, after the defendant’s first bill, to stop the trial and permit him then and there to prepare, reduce to writing and submit in writ, ing his bills of exception as taken to adverse rulings of the court. We had occasion to review and settle the practice with regard to this matter in Kennedy v. The State, 19 Texas Court of Appeals, 619. It was said “a defendant on trial objecting to any order, ruling or decision of the trial court is entitled (under art. 1358, Eev. Stat.) to time in which to prepare his bill of exceptions, no matter whether he has one or more counsel. But' we do not think it was ever intended to hold that a mere refusal to grant time is reversible error per se whether defendant was injured or not by the refusal. For though the time may not have been granted him, yet, if he got his bill subsequently it can not be perceived how he .could claim that he was injured. In such a case the ruling would amount simply to error without prejudice, which is rarely ever held reversible error. In order to make an exception of this kind available, the exception should show that the refusal of time prevented defendant from preparing and getting the benefit of such a bill as he was entitled to, or that some other material injury was thereby caused defendant; and the bill of which he was deprived, or the injury done, should be shown in the bill of exceptions saved to the refusal to grant time.” (See also Roseborough v. The State, 21 Texas Ct. App., 672.) As presented here it is not made to appear that any injury whatever has resulted from the action complained of.

4. During a temporary absence of defendant from the court room, which seems to have been unnoticed at the time by the court, the names of five talesmen summoned upon the jury were called, and one of them (Adams) was examined as to his qualifications, and was peremptorily challenged by the State. When defendant’s absence was called to the attention of the court, further proceedings were arrested. After waiting unavailingly for an hour for the sheriff and deputies to bring back Adams, who had left after his discharge, the court, over objections of defendant, had the other talesmen examined and passed upon by the parties in the absence of said Adams. In qualifying this bill of exception, the trial judge says, “Adams was the only juror examined during the absence of defendant, and he, Adams, was peremptorily challenged by the State.”

A requirement of our law is that a defendant must be personally present during his trial for a felony (Code Crim. Proc., art. 596), and the requirement has been held to extend to all important steps of the trial. (Gibson v. The State, 3 Texas Ct. App., 137; Mapes v. The State, 13 Texas Ct. App., 85.) A selection of the jury is beyond doubt one of the most important features of a trial for a capital felony, and we can well imagine how important it is ordinarily for a defendant to be present during such proceedings. But in any case, when a rule is invoked for non-observance, there should at least appear some slight reason why it should have been observed. It is a maxim that as a general thing, where the reason of a rule fails, the rule ceases to be obligatory or operative. How the talesman, Adams, had been peremptorily challenged by the State. What possible injury could inure to defendant because the talesman could not be found and brought back so that the State might again, challenge him in defendant’s presence? We confess we can not imagine. Under the circumstances disclosed, if error was committed it was manifestly harmless error, for which no just ground of complaint can lie.

5. After the jury was completed, the absconding and much desired talesman Adams made his appearance in court, and the judge called the attention of defendant’s counsel to the fact, remarking “there he is now, if you still want him.” Defendant’s counsel protested against this remark having been made in presence of the jury. Other remarks were elicited from the ju Ige by remarks of counsel, and áre presented also in the bill of exceptions. With all respect to the learned counsel, we must be permitted to say that the exceptions really appear to us to be r..ther captious, when all the circumstances connected with the controversy over Adams are taken into consideration. Whilst the remarks of the judge may have been unnecessary, we are u íable to see how they could affect the defendant prejudicially.

0. After the State’s witness, Thornton, had detailed what he had seen of the origin of the difficulty between defendant and deceased, to the effect that Powers, defendant, placed his foot on fie foot of deceased, and that deceased remarked in an audible voice that might have been heard thirty feet, “that’s my foot you are on,” and then shoved Powers’s foot off his, the court, over objections of defendant, permitted counsel for the State to ask the witness: “What was the manner of the defendant when* he put his foot on the foot of the deceased? Was it done in a jocular manner, or in an insulting manner?” To which the witness answered: “ From the defendant’s not moving his foot from Suban k’s foot when Eubank asked him, I regarded it as an insult.” Defendant’s objection was that the question called for and elicited simply the opinion of the witness, and that the witness’s opinion was not admissible as evidence.

Mr. Wharton says: “When we enter upon the discussion of the admissibility of opinion (as evidence) we strike a topic which is embarrassed by much ambiguity of terms.” * * * “The true line of distinction is this: An inference necessarily involving certain facts may be stated without the facts, the inference being equivalent to a specification of the facts; but when the facts are not necessarily involved in the inference (e. g., when the inference may be sustained upon either of several distinct phases of fact, neither of which it necessarily involves), then the facts must be stated. In other words, when the opinion is the mere short hand rendering of the facts, then the opinion can be given, subject to cross examination as to the facts on which it is based. A fortiori, whenever a condition of things is such that it can not be reproduced and made palpable in the concrete to the jury, or when language is not adequate to such realization, then the witness may describe it by its effect upon his mind, even.though such effect be opinion.” (Whart. Ev., 2 ed., secs. 509, 510, 511.)

The same author, in a note to section 512, gives upon this subject nearly the entire opinion in Hardy v. Merrill, 56 Hew Hampshire, 227, from which we make the following extracts,viz.: As a general rule, “opinions of witnesses derived from observation are admissible in evidence when, from the nature of the subject under investigation, no better evidence can be obtained.” Again, “in an investigation of mental and psychological conditions—because it is impossible to convey to the mind of another any adequate conception of the truth by a recital of visible and tangible appearances; because you can not, from the nature of the case, describe emotions, sentiments and affections which are really too plain to admit of concealment, but at the same time incapable of description—the opinion of the observer is admissible from the necessity of the case, and witnesses are permitted to say of a person, ‘He seemed to be frightened,’ ‘He was greatly excited,’ ‘He was much confused,’ ‘He was agitated,’ ‘Ho was pleased.’ ‘He was angry.’ All these emotions are expressed to the observer by appearance of the countenance, the eye, and the general manner and bearing of the individual— appearances which are plainly enough recognized by a person of good judgment, but which he can not otherwise communicate than by an expression of results in the shape of an opinion.” (1 Greenl. Ev., 13 ed., sec. 440 and note on p. 494. See, also, Best on Ev., 585; Dill v. The State, 6 Texas Ct. App., 113; Richardson v. The State, 17 Texas Ct. App., 486; Hardin v. The State, 8 Texas Ct. App., 658; Tompkins v. Toland, 46 Texas, 585. See, specially for collocation of authorities and an able discussion of the subject, Com. v. Sturtevant, 117 Mass., 122.)

Under these rules we are of opinion the question and answer set out in the bill of exceptions were admissible, and the court did not err in so holding.

7. When the witness, W. A. Grounds, was being examined by the State, the court, over objections of defendant, permitted prosecuting counsel to ask the witness “If he (witness) had not had frequent difficulties with defendant?” To which the counsel for defendant objected because the same was irrelevant, incompetent, and calculated to develop and go into the character of defendant, which he had not put in issue. In explanation to the bill of exceptions reserved to the ruling, the learned judge says: “This bill signed with the explanation that the defendant was boss on the ranch of witness, and counsel for State stated that their object was to show that witness had had difficulties with defendant and threatened defendant to discharge him and employ the deceased, Eubank, and thus to show motive for the killing, and for this object alone the court permitted the witness to answer the question.” To our minds this explanation is entirely satisfactory, and shows sufficient reason for the admission of the testimony, the object of which was to establish the probable feelings of defendant toward deceased, and to discover and illustrate the motive for his actions at the time of the homicide.

8. Most serious complaint is made of certain testimony of the State’s witness, Coggin, permitted to be given in evidence over defendant’s objections. The witness Coggin was the party who arrested defendant after the homicide, under circumstances which may be briefly stated, thus: In a very few seconds after the fatal blows had been inflicted, Grounds told defendant “he had killed Eubank, and that he had better get on his horse and leave.” Defendant immediately mounted his horse and fled. Coggin, seeing him on his horse running off, and having heard he had killed Eubank, procured a Winchester rifle, mounted another horse and went rapidly in hot pursuit, which pursuit was continuous for a period of not more than five minutes, when he overtook or came upon the fugitive, having gone about three-quarters of a mile. When within thirty or forty feet of defendant, Coggin says: “I told him to hold up; if he did not I would kill him. I told him this two or three times; about the second or third time I told him this he stopped and I held him up.” Witness was asked by the prosecution, “What then occurred?” and answered, “I told him he must go back to town then with me; that he had killed Eubank.” Counsel for the State then asked witness, “What did Powers say in reply?” to which defendant’s counsel objected because defendant was under arrest, and because no predicate had been laid as required by the statute for the admission of confessions of a defendant made under arrest. These objections were overruled, and in answer to the question the witness said: “Defendant said, ‘No, I have not killed him.’ I said yes, you have, and defendant replied, ‘ If I have killed him nobody saw me.’ ”

Our statute relating to or prescribing the rules under which admissions or confessions of a party being in arrest may be used against him (Code Crim. Proc., arts. 749 and 750) have uniformly been construed to embrace all statements, acts or conduct from which guilt might be inferred. (Haynie v. The State, 2 Texas Ct. App., 168; Marshall v. The State, 5 Texas Ct. App., 273; Williams v. The State, 10 Texas Ct. App., 526; Austin v. The State, 15 Texas Ct. App., 388.) That defendant was under arrest, as shown by the circumstances above mentioned, can scarcely be questioned; that an inference of guilt might well be predicated upon his statement, “If I have killed him nobody saw me,” will not be denied. And, again, the inference may also be correct that defendant was in fear of his life when he made the statement, and a statement made under such circumstances could not be regarded as voluntary. (Warren v. The State, 29 Texas, 370; Nolan v. The State, 14 Texas Ct. App., 474.)

As confessions or as admissions of fact from which guilt might be inferred, we are of opinion that the objections urged to the admission of the testimony should perhaps be considered well taken. The question, then, is, was the testimony admissible as res gestee ? If res gestee, then the evidence was admissible notwithstanding it might not be admissible as a confession or admission, because res gestae is independent of, superior to, and can not be restricted or limited by the rules relating to con-

fessions or admissions made after arrest. Whilst it is true that declarations made by a defendant in his own favor, unless part of the res gestee, are not admissible for the defense, it is otherwise equally true that when such declarations are part of the res gestee they are admissible either for or against the defendant. Mr. Wharton says: “ Res gestee are events speaking for themselves through the instinctive words and acts of participants, not the words and acts of participants when relating the events. ***** Nor are there any limits of time within which the res gestee can be arbitrarily confined. They vary in fact with each particular case. * * * * They need not be co-incident as to time if they are generated by an excited feeling which extends without break or let down from the moment of the event they illustrate. In other words, they must stand in immediate causal relation to the act, and become part either of the action immediately producing it, or of action which it immediately produces. Incidents which are thus immediately and unconsciously associated with an act, whether such incidents are doings or declarations, become in this way evidence of the character of the act.” (Whart. Crim. Ev., 8 ed., secs. 262 and 263.) Again he says, “but we must remember that continuousness can not always be measured by time.” (Id., sec. 264.) And again, “instinctiveness is the requisite, and when this obtains the declarations are admissible.” (Id., sec. 691; see also Bradberry v. The State, 22 Texas Ct. App., 273, and Cartwright v. The State, 16 Texas Ct. App., 473.) We are of opinion the evidence was admissible as res gestee.

9. It is contended that the special judge presiding erred in “ suspending the trial of this cause on the twenty-eighth of October, 1886, until the night of the twenty-ninth of October, 1886, and leaving the county and district in which this cause was progressing,” and, as a corollary growing out of this proposition, that it was further error to overrule defendant’s motion to stay proceedings and discharge the jury upon his return and attempted resumption of the case. In the absence of the regular district judge, the special judge'had been elected in the manner provided by Revised Statutes, Article 1094 et seq. After the trial of this cause had proceeded as far as the introduction of a portion of the testimony, the special judge, of his own motion, adjourned the court to an hour of the succeeding day, at the expiration of which time he returned and the trial was resumed, over defendant’s objection. It is earnestly argued by counsel for appellant that this adjournment and going entirely out of the county and district vacated the office and terminated the functions of the special judge, and hence no further proceedings could be taken by him in said cause, and that all such attempted proceedings would be and are absolutely void.

Article 1094, Revised Statutes, supra, after making provision for the election of special judges, thus defines their powers: “and shall have all the power and authority of the judge of said court, during such continued absence (of regular judge) or inability, and until the completion of any business began before such special judge.” To the same effect is the provision of the Code of Criminal Procedure on the same subject, viz.: “He (the special judge) shall have all the power and authority of the district judge that may be necessary to enable him to conduct, try, determine and finally dispose of such case.” (Code Crim. Proc., art. 572.) Counsel, inferentially at least, concede that such an order of adjournment might legally have been made by the regular judge, a question about which there can be no doubt. Generally the power inheres in all courts to make all such reasonable orders as are necessary to the transaction of its business, subject only to the restrictions imposed by organic and statutory law.

Under a Tennessee statute, conferring powers on special judges, in language identically similar to ours, it was held that a formal order of adjournment for a period of even two weeks was within the jurisdiction of the special judge; and, in that case, a conclusion is reached, which we do not feel called upon to accept or reject, to the effect that if the order was ultra vires the court, if actually held at the time designated, would be a court de facto and its proceedings valid. (Brewer v. The State, 6 Lea, Tenn., 198.) So, under a Missouri statute, conferring similar powers, it was held that the powers of a special judge continue until the final determination of the cause for which he is chosen, and that a continuance of the cause does not abate them. (Davidson v. The State, 69 Mo., 509.)

It seems to be well settled that a regular judge may adjourn his court from day to day, and that he may do this for purposes of rest and refreshment—no public or private necessity requiring it. For all general purposes a court is considered in session from its commencement until the close of the term. (Barret v. The State, 1 Wis., 156; People v. Central City Bank, 53 Barb., N. Y., 412; Tuttle v. The People, 36 N. Y., 431.) In the case of Revel v. The State, 26 Georgia, 275, it was held that it was competent for the judge to adjourn his court over to a future day or week, as he might see fit. From these authorities we conclude that the order of adjournment excepted to in this case was not, as contended, ultra vires, and therefore the motion based upon it to suspend proceedings and discharge the jury was properly denied.

Opinion delivered February 2, 1887.

10. We have examined the charge of the court with reference to defendant’s special exceptions thereto, and do not find said exceptions to be maintainable. As far as they suggest errors of supposed omission of essential words, they appear to us to be hypercritical; and, in so far as it is supposed that there was a fatal omission, on account of the failure to charge the jury upon manslaughter and self defense in connection with the facts, we deem it only necessary to say that there is not a particle of testimony which shows the probability of an adequate cause to support manslaughter, and none which raises the issue of self defense.

11. Appellant’s bill of exception No. 17 (and the last) sets forth the fact that the verdict of the jury was received by the clerk and entered on the minutes, under order of the court, on Sunday, and that the judgment was rendered thereon upon Monday, and during the absence of the defendant from the court house. That a verdict can be returned and entered upon the minutes on Sunday is now well settled. (Sherman v. The State, 1 Texas Ct. App., 215; McKinney v. The State, 8 Texas Ct. App., 627; Walker v. The State, 13 Texas Ct. App., 618.) Whilst our code provides that a defendant must be .personally present on the trial of a felony case, and especially when a witness is re-examined by the jury, and when the verdict is read, (Code Crim. Proc., arts. 596, 698 and 711), we know of no provision which requires his presence at the time the clerk is performing the ministerial act of entering up a judgment in the case after the trial has been finally concluded.

We have endeavored to discuss all the material questions presented on this record, and we have been unable to find any material error requiring a reversal of the judgment. Appellant seems to have had a fair and impartial trial, and one in which all his rights under the law appear to have been accorded him.

Finding no error the judgment must be affirmed.

Affirmed.