Bismarck v. State

• Decision Date: 15 April 1903
• Citation: 73 S.W. 965
• Parties: BISMARCK v. STATE.
• Court: Texas Court of Criminal Appeals

73 S.W. 965

BISMARCK v. STATE.

Court of Criminal Appeals of Texas.

April 15, 1903.

Appeal from District Court, Travis County; N. A. Rector, Judge.

H. Bismarck was convicted of receiving stolen property, and he appeals. Reversed.

Hart & Kemp, Moore & Moore, and Walton & Walton, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of receiving stolen property, knowing the same to have been so acquired, and his punishment assessed at two years' confinement in the penitentiary; hence this appeal.

Appellant made a motion to require the judge to recuse himself on the ground that he was prejudiced against defendant. The motion shows that, when the case was called, the district attorney suggested that he would file a motion to dismiss the case on the ground that the evidence was not sufficient to authorize the conviction. At this juncture the motion shows the judge to have stated that he thought he was disqualified to enter any order in said case, because he knew defendant to be a liar and perjurer. The judge, in his qualification to the bill, says that he made some such remark when he thought the case would be dismissed; that he made it in view of his knowledge of the defendant, and his testimony in a former trial in a civil suit in which he had acted as counsel; that said statement was not made in the presence of the jury, but in private conversation between the judge, district attorney, appellant's counsel, and the district clerk; that the remarks were of a jocular character, and without any knowledge of the facts in the case at bar. After this the district attorney stated he had discovered that he could corroborate the accomplice, and would not dismiss the case. While the remarks in question, under the circumstances, were not proper, and should not have been made, yet, as was held in Gaines v. State, 38 Tex. Cr. App. 202, 42 S. W. 385, said remarks did not disqualify the judge from trying said cause. Such remarks, emanating from a judge, will cause a closer and more rigid scrutiny of the errors complained of.

Appellant made a motion to continue the case, based on the absence of three witnesses, to wit, George S. Walton, John Kennerly, and W. C. Puckett; the first two alleged to be residents of Travis county, and the latter formerly a resident of said county, but that he had changed his residence, and his present abode was unknown. It appears: That defendant caused a subpœna to issue for George S. Walton on November 3, 1902. which was served. Subsequently, on November 29th, appellant caused another subpœna to issue to said Walton, commanding him to bring with him a certain note which had been written by Charles Edwards, state's witness, to certain parties named in said application. On disobedience of said subpœna, it appears, attachment was issued on the 6th day of December to Jefferson county for said witness, returnable on December 9th, the day the case was set for trial. At the time of trial said process had not been returned, and witness was not in attendance on the court at the trial. On October 29th a subpœna was issued by the state for said witness Puckett to Travis county, which was served on November 1st. That another subpœna was issued by the state for said witness November 15th, but same was not served; it being stated that witness was in Oklahoma. On December 6th the state issued process for Kennerly, which was served, and said witness was not in attendance on the court. Appellant relied on the state's process for the two last-named witnesses. Appellant says he expected to prove by witness Walton the possession of a certain letter or note which was written and sent out of jail by Charles Edwards to one H. Joseph, an Assyrian. Said letter demanded the payment of $250 by certain Assyrians, including appellant. In case of refusal, Edwards proposed to give them away, etc. It occurs to us, under the circumstances of this case, that this was material testimony, as going to the credit of the witness Edwards; and, inasmuch as the application shows that demands were made of others for payment of money, it was no answer to the proposition that the contents of said letter were permitted to be proven by other witnesses. The witness was not certain that Bismarck's name was in the letter. It also occurs to us that the testimony of Puckett was material. On the part of the state the proof showed that the sale of the goods was made to appellant by Edwards in the town of Manor, some 15 miles from Austin, about 8 o'clock in the morning; and by Puckett it was proposed to be shown that he saw Edwards at Manor, endeavoring to sell goods to other parties, about 11 o'clock on said day. This testimony would directly controvert the testimony of the state's main witness, and would furthermore tend to show that appellant bought the goods in due course of trade, inasmuch as Edwards was endeavoring to sell the goods to other parties, whereas Edwards' testimony shows that he took the goods to appellant early in the morning, and disposed of them to him as prearranged between them. It does not occur to us that the testimony of the witness...