Bosley v. State

• Citation: 153 S.W. 878
• Parties: BOSLEY v. STATE.
• Decision Date: 12 February 1913
• Court: Texas Court of Criminal Appeals

Page 878

153 S.W. 878

BOSLEY v. STATE.

Court of Criminal Appeals of Texas.

February 12, 1913.

Appeal from District Court, Shelby County; R. T. Brown, Special Judge.

Herman Bosley was convicted of murder in the second degree, and he appeals. Affirmed.

Allen & Flanary, Gibson & Callaway, and C. F. Greenwood, all of Dallas, and W. F. Ramsey, of Austin, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant was indicted, charged with murder in the second degree, and, when tried, was convicted of that offense, and his punishment assessed at five years' confinement in the state penitentiary.

Appellant filed an application for a continuance on account of the absence of Allee Earl, Mell Handy, and Idella Waterhouse. This was his second application, a continuance at the former term having been granted on his application. By the witness Allee Earl he states he can prove that some four or five days after appellant was arrested charged with this offense one Rufus Driver at night came to the home of appellant, and "asked the wife of appellant not to turn against him, Rufus Driver; that he was also charged with the offense (as well as appellant), and there would be no case against him (Driver) if she (appellant's wife) did not turn against him, and promised to buy her a nice present." As to this witness, the record discloses that she was summoned while a resident of Shelby county; that since being summoned she had moved to Nacogdoches county, and no additional process had been issued for her, consequently the diligence as to this witness would be insufficient on a second application. The witness was not required to attend, having moved out of the county, and the application, to be sufficient, must show that a subpœna had been issued to the county where the witness had moved, or some good reason stated why it had not been done. This has always been the rule in this court.

In addition to this, the application itself shows that the testimony was procurable from another source, and no reason stated why this witness was not used, and it has been the unvarying rule in this court that a second application is insufficient which fails to show that the testimony cannot be procured from any other source. McCulloch v. State, 35 Tex. Cr. R. 268, 33 S. W. 230; Pinckord v. State, 13 Tex. App. 468; Henderson v. State, 5 Tex. App. 134.

Then, again, it would only be by inference that the testimony desired from this witness could be of any benefit to defendant. This language would be as susceptible of the construction that Driver thought himself wrongfully accused by appellant and his mother, and he did not want his wife to join in the wrongful accusation as one injurious to Driver.

As to the witness Mell Handy, the record shows that another witness did appear and testify to the same facts it was expected to be proven by this witness, and in Harvey v. State, 35 Tex. Cr. R. 545, 34 S. W. 623, and other cases, it has been held that testimony which would only be cumulative of other testimony adduced on the trial would be no ground on which to base a second application for a continuance.

The only other witness named in the application is Idella Waterhouse, the mother of this appellant. The application and record would disclose that almost immediately following the homicide appellant and his mother, the absent Idella Waterhouse, were arrested charged with the murder; that while in jail she was carried before the county attorney, and denied any knowledge of the crime; that, after conferring with appellant, she went before the county attorney again, and then made a statement or confession in which she stated that she and one Rufus Driver, her son-in-law, had entered into a conspiracy to kill Byron Alexander; that, in pursuance of this conspiracy, she and Rufus Driver went near the home of Byron Alexander, and she went in, and, after getting in the house, complained of the heat, and raised a window, when the shots were fired from the outside that killed the child for which appellant was being prosecuted for killing. Driver was then arrested, but, when the grand jury met and investigated the case, Driver was not indicted, but indictments were returned against appellant and his mother, the absent witness. It appears at the former term of court the cases against appellant and his mother were both continued, and then his mother made a bond and went to Louisiana, where she remained until after the February term of court, when appellant was tried. It further appears that on March 9th the case against appellant's mother was dismissed by the district attorney. Thereafter, on March 19th, when his case was called, he applied to continue on account of her absence, setting up that he expected to prove by her the facts she had stated in her confession to the county attorney, which evidence would go to show that Driver, and not appellant, was guilty of the offense. He gives as a reason for not summoning this witness when first indicted that she was also indicted for an offense growing out of the same transaction, and therefore was not a competent witness in his behalf until the case against her had been dismissed, but the application fails to show sufficient diligence used by him during the 10 days elapsing from the date her case was dismissed until his case was called for trial. He does not show the efforts he made, if any, to get in communication with this witness, or learn her whereabouts. It appears that on the day his case was called for trial he then knew her exact whereabouts and stated she was at Coushatta, Red River parish, La. The application does not show the distance from Center to Coushatta, and to make the diligence sufficient it should have shown the distance, and that from the time the case against her was dismissed and he learned her exact location sufficient time did not remain for him to have taken her depositions.

The record disclosing that he knew the location of the witness and that she was beyond the jurisdiction of the court, he should also have shown that he had made some efforts to take her depositions, or to obtain her attendance on court. While, as stated, the application does not show the distance, yet, if we take our geographical knowledge into consideration, we know that Shelby county borders on the Louisiana line, and there is but one county or parish intervening between Shelby county and Red River parish. Harvey v. State, 35 Tex. Cr. R. 545, 34 S. W. 623; De Alberts v. State, 34 Tex. Cr. R 508, 31 S. W. 391; Hennessy v. State, 23 Tex. App. 340, 5 S. W. 215; Swofford v. State, 3 Tex. App. 76. It may be said that the court permitted, without objection, the defendant to prove by the county attorney of Shelby county the facts stated by the witness at the time she made the confession, and, this confession being admitted, it was thus in evidence that this absent witness had sworn to all the facts the defendant stated he expected to prove by her. In addition to this, all the evidence stated it was expected to prove by this witness was proven as undisputed facts, except that Driver went with her to the house that night and fired the shots after she opened the window, and this fact, we think, the record would disclose the court was authorized to find was not probably true. The undisputed facts show that the cartridges used were 40-44 Winchester shells; they being picked up off the ground. The record further discloses that appellant was the owner of a 40-44 Winchester rifle, while it does not even suggest that Driver ever owned such a gun. If the state's witnesses are to be believed, appellant was seen to leave his house at night prior to the shooting, and return home just about daylight, riding a horse; that a horse of a neighbor of appellant was taken from his lot and ridden that night, and found next morning on the road between the home of appellant and the man from whose lot it had...