Barnes v. State

• Citation: 59 S.W. 882
• Parties: BARNES v. STATE.
• Decision Date: 19 December 1900
• Court: Texas Court of Criminal Appeals

59 S.W. 882

BARNES v. STATE.

Court of Criminal Appeals of Texas.

December 19, 1900.

Appeal from district court, Van Zandt county; J. G. Russell, Judge.

H. J. Barnes was convicted of murder in the second degree, and from the judgment he appeals. Reversed.

Kearby & Kearby, T. R. Yantis, and F. J. McCord, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was convicted of murder in the second degree, and his punishment assessed at 25 years' confinement in the penitentiary. Motion was made to change the venue. Without collating the facts, it is shown without contradiction that a very strong prejudice existed against appellant, running back since his trial and conviction for a burglary some 10 years prior to this transaction. This prejudice extended generally over the county. The charge of murder in this case seemed to revive and intensify the prejudice against appellant. It is stated in the testimony that defendant might get a fair and impartial trial if the jurors could be culled and particularly selected, but, if selected in the usual way, it would not likely occur that impartial jurors could be selected; in other words, it would be likely that unfair and partial jurors would be obtained. As we understand the testimony bearing on this question the prejudice is stronger than shown in the Meyers Case, 39 Tex. Cr. R. 500, 46 S. W. 817. See, also, Randle v. State, 34 Tex. Cr. R. 43, 28 S. W. 953; Gallaher v. Same, 40 Tex. Cr. R. 296, 50 S. W. 388. Without going into a detailed statement, we think the evidence was of such a character that the change of venue should have been granted, and because it was not the judgment will be reversed.

The court instructed the jury they might look to the cruelty evidenced by defendant's manner of killing deceased, in passing upon the testimony, under article 720, Pen. Code. As we view the record, this charge was wrong; and we call the court's attention thereto, so it will not arise upon another trial.

The evidence discloses there was some ill will between the parties prior to the immediate difficulty, and that on the morning, and preceding the difficulty, deceased sent for defendant, who was working on his own farm, and requested that he go to see him (deceased) where he was at work, several hundred yards away, in an adjoining farm. Deceased was the landlord of appellant. Appellant refused to go, and told the messenger if deceased desired to see him he might come to where he...