Alarcon v. State

• Decision Date: 07 December 1904
• Parties: ALARCON v. STATE.
• Court: Texas Court of Criminal Appeals

83 S.W. 1115

ALARCON v. STATE.

Court of Criminal Appeals of Texas.

December 7, 1904.

Appeal from District Court, Coleman County; Jno. W. Goodwin, Judge.

Marcario Alarcon was convicted of murder in the second degree, and he appeals. Reversed.

Howard Martin, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of 12 years; hence this appeal.

Appellant questions the action of the court refusing to change the venue, the grounds alleged being that a formidable combination existed in Coleman county of influential citizens against appellant, and that so great a prejudice existed in said county against him as to render it improbable that he could get a fair and impartial trial. As to the first proposition, it is not necessary to discuss it, as the only evidence relating to that matter is to the effect that decedent's father and some other relatives interested themselves in the prosecution, and that they employed able counsel to prosecute the case. On the subject of prejudice a number of witnesses were introduced, who testified pro and con. There is some evidence to the effect that after the homicide there was considerable excitement about the town of Coleman, where it occurred. There is testimony showing that the sheriff removed appellant from the jail of said Coleman county to another county, in apprehension of a mob. However, no witness testifies directly that any mob was formed. There is testimony tending to show that on the night of the homicide, and during the excitement, something was said about getting up a mob, and one witness testified that he was aroused at home, and asked to come down and join a party to mob appellant. At the term of the court succeeding the homicide appellant was indicted, and his case was continued by the court. On that occasion there was considerable excitement in the courtroom and about the courthouse. Defendant's counsel testified to overhearing conversations in which certain parties threatened him with violence for procuring a continuance. It is also shown that a crowd of people gathered at the courthouse steps and created some excitement. But it is not shown in this connection that anything was said or done looking to violence toward the prisoner. It is suggested that the people gathered at the courthouse around some of the relatives of deceased, who were crying, and talking about the court having continued the case. It was further shown that after this continuance there was a contest for the office of district judge in the judicial district of which Coleman county was a part. The contest was waged between Hon. Jno. W. Goodwin, judge who granted the continuance, and Hon. J. O. Woodward, his opponent; and that the continuance granted by Judge Goodwin in this case entered into the campaign, and was used against Judge Goodwin. It was also shown by several witnesses that they had heard others speak of the case, and generally against appellant, some saying he ought to be hanged. On the other hand, some witnesses say that they had heard as many speak in his favor as against him. It was further shown that there were some 1,500 or 2,000 qualified jurors in Coleman county; and that, in the opinion of the witnesses, appellant could get a fair and impartial trial in the county. Sheriff Goodfellow testified that he talked with a great many people, but outside of the relatives of deceased and other friends he knew of no prejudice in the county against appellant. In connection with the race between Judge Goodwin and Hon. J. O. Woodward for district judge in that county, and that the continuance of the case against appellant entered into the campaign at the primary election, appellant proposed to show that Judge Goodwin received a majority in every other county in the district, and that Judge Woodward beat Judge Goodwin in Coleman county more than two to one; that said Woodward knew nearly all of the voters in the county who had supported him, and he knew how more than two-thirds of the voters felt in regard to the case; that Judge Woodward was prosecuting the case against appellant. We believe this testimony, which was excluded by the court, should have been...