139 U.S. 462 (1891), Leeper v. State of Texas

Citation:139 U.S. 462, 11 S.Ct. 577, 35 L.Ed. 225
Party Name:LEEPER et al. v. STATE OF TEXAS.
Case Date:March 30, 1891
Court:United States Supreme Court

Page 462

139 U.S. 462 (1891)

11 S.Ct. 577, 35 L.Ed. 225

LEEPER et al.



United States Supreme Court.

March 30, 1891

In error to the court of appeals of the state of Texas.

Plaintiffs in error were arraigned in the district court of Coryell county, Tex., upon an indictment reading as follows: 'In the name and by the authority of the state of Texas, the grand jurors for the county of Coryell, state aforesaid, duly organized as such at the January term, A. D. 1890, of the district court for said county, upon their oaths in said court present that Jim Leeper and Ed. Powell, on or about the 17th day of December, A. D. one thousand eight hundred and eighty-nine, in the county of Coryell and state of Texas, did then and there, with malice aforethought, kill and murder J. T. Mathis by then and there shooting him, the said J. T. Mathis, with a pistol, contrary to law and against the peace and dignity of the state;' and severally pleaded not guilty. The cause being called for trial, the defendants made an application for a continuance, which was overruled, whereupon trial was had before a jury duly impaneled, which found each of the defendants guilty of murder, and assessed his punishment at death, and judgment was entered accordingly. No motion to quash the indictment was made nor objection raised thereto in the progress of the trial. But exceptions were taken to the action of the district court in overruling the application of defendants for a continuance; in refusing to quash a special venire issued in the case; in the admission of testimony of other distinct offenses committed near the scene of the murder, and immediately afterwards; in the admission of testimony that upon an inspection of the body of one of the defendants after he had been arrested, his shirt having been taken off by the jailer, marks or bruises were found thereon indicating that he had been struck one or more blows, which tended to corroborate the testimony of one of the witnesses; and to the failure of the court to charge in relation to murder in the second degree. Defendants moved for a new trial on the ground of error in these rulings, and also because one of the jurors was not qualified as such under the laws of Texas, in that he was not a freeholder in the state of Texas, although he had assumed to be such on his voir dire, and the fact was not discovered until after the trial, wherefore it was claimed defendants had not had a trial in accordance with law; and because the verdict was contrary to the law and the evidence. The motion for a new trial having been overruled, the cause was taken by appeal to the court of appeals of the state of Texas, and errors therein assigned, raising the same points as on the motion for new trial, and error in the action of the court in overruling that motion. The cause was submitted to the court of appeals on oral arguments and briefs, and the judgment affirmed, the opinion being delivered by Judge WILLSON. A rehearing was afterwards applied for, and the application heard on oral arguments and briefs, and overruled. An opinion was delivered on this motion by Judge WILLSON, and a dissenting opinion by Judge HURT, who concurred in the views of the majority, except upon the question of the disqualification of the juror. These opinions are transmitted as part of the record. The court decided that the evidence tending to show assaults upon other parties by the defendants, almost simultaneously with the assault made by them upon the deceased and at the same place, in pursuance of a general design to rob the partes assaulted, was admissible, such assaults being part of theres gestae; that it did not appear that one of the defendants was compelled to expose his body, or that his shirt was removed $w465 without his consent, nor was it shown what injury or prejudice might have been caused by the admission of the...

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