Baines v. State

• Citation: 66 S.W. 847
• Parties: BAINES v. STATE.
• Decision Date: 19 February 1902
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 847

66 S.W. 847

BAINES v. STATE.

Court of Criminal Appeals of Texas.

February 19, 1902.

Appeal from district court, Erath county; W. J. Oxford, Judge.

Dock Baines was convicted of an assault with intent to murder, and he appeals. Affirmed.

Daniel & Keith, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of an assault with intent to murder, and his punishment assessed at confinement in the penitentiary for three years. This is the second appeal; the former appeal being reported in 61 S. W. 119, 312, 1 Tex. Ct. Rep. 816. The facts on this trial are substantially the same as on the former trial, except several witnesses testified on this trial who did not testify on the former. But the state's theory and the defendant's were the same on both trials.

In the motion for new trial, appellant, for the first time, raises the question as to the qualification of the judge to try the case; the ground of disqualification, as urged by him, being that the judge, before he came on the bench, was of counsel in the case. To support this motion, appellant relied on the affidavit of J. O. Freeman, who testified, in effect: That he went to the office of W. J. Oxford to employ him. After consulting with him in regard to the case, he made a contract with him as to what his fee would be to assist in the prosecution of defendant, and $75 was agreed on as the fee. That the said Oxford advised affiant that he thought defendant could be convicted of making an assault in disguise, and defendant given a heavy penalty for the offense. That said Oxford advised affiant that he believed defendant guilty, and could prosecute defendant to conviction, and that, after relating to Oxford the circumstances against defendant, the said Oxford advised affiant as aforesaid. That afterwards affiant was advised not to employ private counsel to prosecute defendant, and he failed to pay said Oxford the fee agreed upon, and let the matter drop. The state controverted the grounds of disqualification, introducing witnesses who were present at the alleged transaction between said J. O. Freeman and W. J. Oxford, to wit, W. J. Oxford, Eli Oxford, and Lee Oxford; the latter not being related to the judge. These witnesses flatly deny the employment of said Oxford as an attorney. They state, in effect: That Freeman was drinking at the time he came into Oxford's office, and spoke about employing him; asked him what he would take as a fee, and he replied, "One hundred dollars." Freeman then said that his neighbors proposed to help him raise the fee, if they could agree on it, and that Oxford then told him he would take $75 if the fee was made up in that way. That Freeman may have told Oxford something about the case. Oxford himself did not remember. That Freeman told him he knew appellant was guilty of that offense, and guilty of burning his barn, and wanted him prosecuted. That he gave no advice about the case, and that Freeman never returned to employ him. That some time afterwards he asked him about it, and he said that he had conferred with the district attorney, who said he did not need any help to prosecute the case; that he had dropped the matter. The other two witnesses corroborate the judge in his statement. The state also introduced Dr. Burger, who testified that some time after Freeman's daughter was shot he had three different conversations with him about employing Judge Oxford. In the first conversation, Freeman told him the neighbors were going to make up the money to pay an attorney. The next time Freeman told him he did not know about it, and the last time he said positively he had not employed and was not going to employ an attorney, but was going to let the case take its course. In addition to this, the state introduced a number of witnesses who testified that the reputation of J. O. Freeman for truth and veracity was bad. On this state of case, the court thought he was not disqualified, and refused to recuse himself. Appellant insists that under the rule laid down in the Graham Case, 63 S. W. 558, 2 Tex. Ct. Rep. 821, the judge was disqualified to try the case; the only ground of similarity being that the matter of fee was discussed in both, but no fee ever paid. In the Graham Case it was shown by appellant that Judge Goodman consulted with other attorneys of appellant in regard to the case. We do not understand that the judge, in his testimony, denied consulting with appellant's attorneys; but he stated, however, that he considered the consultation rather as a friend of one of the lawyers who was related to appellant, than as an attorney in the case. He admitted that he went to the jail to see appellant, and did not deny that appellant may have there talked to him about the case, but stated, if he did so, that it was voluntarily made by him, without any consultation or even inquiry on his part; that he went there for the purpose of arranging the fee. In this case the witnesses for the state testified emphatically that there was no employment, and no advice given; that, at most, there was only on the part of the judge a proposition to take a certain fee, but this fee was never arranged or agreed to be paid. On this state of facts, we do not believe this case comes within the rule as laid down in Graham's Case, supra. If it be conceded that Freeman's testimony showed an employment, and advice given, this was contradicted, and his testimony overwhelmingly controverted by that offered on the part of the state. If a judge could be disqualified on this character of evidence, then in every case where an attorney should be spoken to, and, in response to the question of fee, should state what amount he would take to prosecute or defend a case, and such attorney should afterwards be elected judge, and what had previously transpired should afford a ground of disqualification, it would follow, in order to disqualify a judge, it would only be necessary to show that he had previously been asked what he would prosecute or defend the case for. We do not believe that any case has gone to that extent. There was no error in the refusal of the trial judge to recuse himself.

Appellant, by his first bill of exceptions, raises the question as to the admissibility of the testimony of Minnie Freeman to the effect that on one occasion, as she returned with appellant from a fortune teller's whither they had gone, appellant offered to put his arm around her waist, and put his arm on the back part of the buggy, but never said a word. This was objected to by appellant on the ground that it was too remote from the time of the shooting to show any motive whatever. It might be replied to this bill, in the first place, that it does not state the time when this occurred. Accordingly, we cannot tell how remote it is. That it was admissible, as showing motive, if not too remote, we do not understand to be questioned. The motive relied on here by the state, as we gather from the record, was an attempt on the part of appellant to seduce prosecutrix, Minnie Freeman, who was a girl about 16 or 17 years old at the time, and the sister of his wife. The record tends to show that his attempts in this direction extended over a considerable lapse of time. Evidence tending to show motive, though remote, if connected or manifesting any bearing upon the issue, was admissible; its weight being a matter for the jury. Dill v. State, 1 Tex. App. 278; Jones v. Same, 4 Tex. App. 436; Rucker v. Same, 7 Tex. App. 549; Early v. Same, 9 Tex. App. 476.

The objection to the testimony of Minnie Freeman to the effect that she found some of her clothing with oil poured on it was not well taken. The circumstances tend strongly to show that this was done by appellant. From the evidence of both Minnie and her sister Lena, appellant was the only person at the house at the time; the other members of the family being in the field at work, or away from home.

Over appellant's objections, the state was permitted to show by Minnie Freeman the state of feeling existing between her and appellant. That is, the state asked the witness what the state of feeling was between her and defendant, and she replied: "It is just like it has always been. If he is the one that shot me, it is hard; if he ain't, it ain't. If he is the one, I want him to suffer for it; and, if he ain't, I don't." The objections to this are that it was immaterial to show the state of feeling between appellant and the witness. The court explains this by showing that the witness was hostile toward the state. Under these circumstances, we think it was proper for appellant to have asked the question, and to have proved directly by the witness what her feelings toward defendant were, but we do not understand the witness to so testify. Indeed, her testimony is of a noncommittal character, and we fail to see how it could injure appellant.

It is shown that appellant objected to the state showing that the witness Minnie Freeman was brought before the grand jury after she had formerly testified before that body. It is not shown, however, what she testified on either occasion, so the bill is not in a condition to be revised.

We have no doubt that it was competent to show that the ground near the house appeared on the next morning to have been disturbed, as if some one had been there. It was not necessary to identify appellant's tracks there, and show that he had disturbed it, before such evidence could be adduced. It was merely necessary to show that the signs indicated some one had been there.

Witness Gordon testified that while they were looking for tracks, in order to determine who the guilty par...