Smith v. State

21 Tex. Ct. App. 277 | Tex. App. | 1886

White, Presiding Judge.

1. Defendant’s motion to quash the indictment was properly overruled, it being in the usual form for murder in the first degree, and sufficiently specific in its allegations. (Willson’s Crim. Forms, No. 388, p. 173.)

2. Defendant made a motion for a change of the venue. One Crutcher made affidavit controverting the two compurgators’ means of knowledge of the facts stated by them in their affidavit in support of the motion. Exceptions to the sufficiency of his affidavit were made by the defendant upon the grounds: 1. That his affidavit did not attack, the credibility of said compurgators. 2. It does not sufficiently controvert the compurgators’ means of knowledge, by stating facts showing they were mistaken or misinformed as to the case. 3. Because the affiant, Crutcher, was not himself such credible person as the law requires to raise this issue, for the reason that he was the physician who attended deceased in his last illness, is a witness for, and interested in the prosecution of the cause.

Article 583 of the Code- of Criminal Procedure provides that the credibility of the persons making affidavit for a change of venue, or their means of knowledge may be attacked by the affidavit of a credible person, and the issue thus formed shall be tried and determined by the judge, granted or refused, as the law and facts shall warrant. Two modes are thus provided for controverting the motion: 1. By attacking the credibility of the compurgators. 2. By attacking their means of knowledge. Either one of these two grounds is, of itself, sufficient without the other to form the issue to be tried. (Davis v. The State, 1 Texas Ct. App., 201; Carr v. The State, Id., 635; and Pierson v. The State, ante, p. 14.)

The controverting affidavit, in this instance, was sufficiently explicit in its statements traversing the means of knowledge of said compugators. As to the last ground of the motion, to-wit, the fact‘as to whether or not the controverting affiant, Crutcher, was himself a credible person, this was a matter to be ascertained and determined by the judge in the court below. There is not a particle of testimony, one way or another, in this record with regard to his credibility. The fact that he was a physician who attended the deceased in his last illness, nor the fact that he was a witness for the State in the case, would certainly neither, in themselves, tend to establish that he was not a credible person; nor would they tend in the slightest degree to disprove the statements made by him in his controverting affidavit. The court did not err in overruling the motion for a change of venue.

3. A motion was also made to quash the special venire. As ground for this motion it is stated that the names for the special venire were not drawn in open court from the names selected by the jury commissioners to do jury service for the term, as is required by the statute (Art. 610, Code Crim. Proc.); and because it appears from the return of the sheriff thereon, that one of the sixty men named in the venire was dead, and that another was in the Indian Territory at the time said venire was ordered, and that therefore the same was not a venire for sixty men, as ordered by the court.

With regard to the first ground of the motion there is no testimony going to show whether the selecting of the special venire was had by drawing the names, in open court, of persons selected by the jury commissioners to do jury service, or not. Where there are no jurors selected by the jury commissioners as provided in Article 610, Code of Criminal Procedure, then the court can order the requisite number of jurors to be summoned from the body of the county. . (Code Crim. Proc., Art. 611; Weaver v. The State, 19 Texas Ct. App., 547.) Inasmuch, however, as the writ of special venire in the case required the sheriff to summon the sixty persons whose names appeared on the list attached to the writ, we think it is sufficiently manifest that these sixty men had already been selected before the writ issued; and we will further presume, in the absence of any thing to the contrary, that they had been selected in the manner required by law—that is, that they had been drawn from the selected jurymen for the term in open court.

As to the objection to the two venire men named on the list, that one was dead, and that one was in the Indian Territory, it may have been, and doubtless was, impossible to know these facts when the venire was ordered, and we can not well see how such unforeseen contingencies can well be guarded against or avoided. Such objection is not sufficient to authorize nor warrant the quashal of the venire. It was not error to overrule the motion to quash.

There is no merit in appellant’s third bill of exceptions. The bill itself shows that when the names of jurors who had already been passed upon on the original venire were reached on the call of the second special venire, they were made to stand aside by the court, and neither the State nor the defendant was required to challenge or pass upon them.

4. We are of opinion that the appellant was sufficiently arraigned in the court below before the trial was proceeded with. (Code Crim. Proc., Arts. 509, 512, and 516; Willson’s Crim. Forms, 685, p. 321.) The recitals of the entry of the arraignment render it clear that the indictment must have been read to the appellant before he was required to plead thereto, and this is, substantially, all that the statute requires with regard to the entry of the fact upon the minutes.

5. Appellant’s fourth and fifth bills of exception have reference to the admission in evidence of a certain diagram of the locus in quo, drawn by the witness Ball. It is insisted that the diagram was not properly admitted in evidence. Its correctness had already been testified to by the witness Ball, before it was introduced in evidence, and before it was used by the other witnesses in connection with their testimony. Mr. Wharton says: "We have already had occasion to observe that parol evidence may be received of buildings, monuments, and other objects which can not be brought into court. For this purpose, authenticated plans or diagrams of the locus in quo are admissible.” (Wharton’s Crim. Ev., 8 ed., sec. 545; Gavignan v. The State, 55 Miss., 532.)

6. Over objections of defendant, as shown by the sixth and seventh bills of exception, the prosecution was permitted to prove, by the witnesses James Garrett and L. R. Helms the statements made by the deceased to them within some ten or fifteen minutes after he was shot, as to how and by whom he was shot. Under the facts detailed by the witnesses, in connection with the making of these statements, they were properly admitted as res gestae. They sprang out of the principal fact, tended to explain it, were voluntary and spontaneous, and were made at a time so near, and under such circumstances as to preclude the idea of deliberate design, and so may be regarded as contemporaneous. (Booth v. The State, 4 Texas Ct. App., 203; Foster v. The State, 8 Texas Ct. App., 248; Stagner v. The State, 9 Texas Ct. App., 441; Warren v. The State, 9 Texas Ct. App., 619; Hobbs v. The State, 16 Texas Ct. App., 517; Pierson v. The State, 18 Texas Ct. App., 524; Pierson v. The State, ante, p. 14.)

7. As shown by defendant’s ninth bill of exceptions, Rudolph" Gray, a child ten years old, was placed upon the stand and examined as a witness for the State, and cross-examined by the defendant. On his r-e-examination by the State, he was asked the question: “Did not your uncle, Walter Cochran, tell you, in presence of the defendant, to wait until your mother came home the next morning, and she would tell you what to say about the shot?”

This witness, on his examination in chief, had stated that he and his uncle Walter and his little brother were together at the house of his uncle Walter when the shot was fired; that about two minutes after he heard the gun fire, the defendant stepped into the room where they were, and witness asked him if he had heard the gun fire, and he said that he did; that whilst defendant was in the room, he, defendant, told his uncle Walter something, but the witness says: “I do not remember what uncle Walter told me about it.” It was then and in this connection that the question objected to was asked the witness.

We do not think that the question was objectionable under the circumstances shown. Whatever his uncle told him was or is shown to have been the result of what had transpired between defendant and his uncle with regard to the firing of the gun; and whatever his uncle told him about the matter was told him in the presence of the defendant, and presumably at his instance or suggestion. In his explanation to this bill of exception, the learned trial judge says: “Had the objection been made that it (the question) was leading, I should have sustained it, unless the State’s counsel had stated that he was seeking to lay a predicate for contradicting the witness.”

8. Appellant’s ninth, tenth, and eleventh bills of exception relate to the exclusion of evidence proposed by the defendant. This evidence was excluded because irrelevant and immaterial, and we are clearly of opinion that the court did not err in ex-eluding the same upon the ground stated. The proposed evidence could not possibly have thrown any light upon the transaction.

9. Appellant’s twelfth bill of exceptions relates to the action of the court in refusing to permit counsel for the defendant to read, as part of his argument to the jury, certain rules of law with regard to circumstantial evidence as contained in Black’s case, 1 Texas Court of Appeals, 391, and Willson’s Circumstantial Evidence, rule 5, page 175. It is a rule established now by repeated decisions in this State, that the extent to which counsel may read to the jury from books as part of their argument to the jury is a matter left largely in the discretion of the trial judge, and one which will not be revised on appeal unless that discretion has been clearly abused to the prejudice of the appellant. (Wade v. De Witt, 20 Texas, 398; Dempsey v. The State, 3 Texas Ct. App., 430; Hines v. The State, Id., 596; Foster v. The State, 8 Texas Ct. App., 248; Harrison v. The State, Id., 183; Cross v. The State, 11 Texas Ct. App., 184; Lott v. The State, 18 Texas Ct. App., 627.)

In this case no material error could possibly have inured to the defendant by a failure to have the jury instructed with regard to the rules applicable to circumstantial evidence. The case was not one wholly of circumstantial evidence, because, in the statements of the deceased, made within a few moments after the shooting, he positively and emphatically stated that the defendant on trial was the party who did the shooting. But, even had the case been one. of circumstantial evidence, the ruling of the court in excluding, or in refusing to permit counsel to read, as stated in the bill of exceptions, could possibly have worked no injury to defendant in this case, because we find that the jury were fully and sufficiently instructed with regard to the rules of law applicable to a case of circumstantial evidence, in the thirteenth paragraph of the charge of the court.

10. Defendant’s thirteenth bill of exceptions was reserved to certain remarks made in the closing argument of the counsel for the State. These remarks and argument were provoked and induced by the argument made by defendant’s counsel in his address to the jury, and were perfectly legitimate, and were based upon facts in evidence, and under the circumstances shown the appellant certainly has no ground to complain.

11. Appellant’s fourteenth and fifteenth bills of exception were taken to the entire charge of the court as given to the jury, and the refusal of the court to give the requested special instructions asked for the defendant. It is unnecessary, and we do not propose to go into a discussion of these exceptions. NA material error is pointed out in the main charge. It was, in our opinion, a full and fair presentation of the law as applicable to all the substantial phases of the case. In so far as they presented the law it was unnecessary that the court should give-defendant’s special requested instructions, and there was no error in refusing them.

Opinion delivered May 8, 1886.

13. The sixteenth and last bill of exception was taken to the action of the court in overruling defendant’s motion for a new . trial. In discussing the questions presented by previous bills of exception, we have already disposed of the grounds upon which this motion is based, and it is unnecessary further to elaborate them. It was not error to overrule the motion.

It only remains for us to say that the evidence in this case is amply and conclusively sufficient to establish the guilt of appellant of murder in the first degree, as found by the jury—a cold blooded assassination, committed at night, with premeditated design, and by lying in wait. The judgment is in all • things affirmed.

Affirmed.