Boxley v. State

• Decision Date: 03 June 1925
• Docket Number: (No. 9246.)
• Citation: 273 S.W. 589
• Parties: BOXLEY v. STATE.
• Court: Texas Court of Criminal Appeals

273 S.W. 589

BOXLEY v. STATE.

(No. 9246.)

Court of Criminal Appeals of Texas.

June 3, 1925.

Appeal from District Court, Brazoria County; M. S. Munson, Judge.

H. P. Boxley was convicted of murder, and he appeals. Affirmed.

Rucks & Enlow, of Angleton, for appellant.

Tom Garrard, State's Atty., and Grover C. Morris, Asst. State's Atty., both of Austin, for the State.

MORROW, P. J.

The offense is murder; punishment fixed at death.

On the night of May 2, 1924, while in his house, and lying upon the bed, Tom Coleman, a negro man, was killed by the discharge of a shotgun which was fired from the outside of the house and through the screen door. The appellant, a negro, 33 years of age, was the stepson of the deceased. Some months before the death of the deceased, a policy of insurance had been issued upon his life at the instance of the appellant, who was named as the beneficiary. The policy was an accident and health policy for the maximum sum of $2,500, in case of death, and for stipulated indemnities in case of sickness or accident. On the 26th of April, the deceased, while in his house, received a pistol-shot wound, the weapon having been discharged through the window. There was evidence to the effect that, a short time after the incident last above mentioned, the appellant reported to the insurance agent through whom the policy was issued that the deceased had been killed by Mexicans or some one, and requested that steps be taken so that the appellant might realize upon the policy. While preparations to that end were being made, appellant received a letter advising him that his stepfather had been wounded but not killed. He then went in an automobile to the home of his stepfather, where he remained until after the homicide. Other inmates of the house in which the deceased was killed were his wife (the mother of the appellant), a youth, the son of the deceased, a sister of the appellant, her husband and baby. The homicide took place between 9 and 10 o'clock at night. The appellant's automobile was standing near the house, in the neighborhood of 15 feet from the door through which the shot was fired.

According to the testimony of his mother and of the appellant, he at the time was at or near his automobile doing some work upon it. She said that she saw no gun in his hand, but that she rushed to the door upon the firing of the shot and saw no one save the appellant. He testified that while he was in a stooping position working on the automobile a shot was fired, and immediately thereafter he saw two persons flee. In a statement in writing, signed by the appellant and introduced in evidence, he stated that he had killed the deceased.

The state introduced circumstances tending to show that the appellant fired the shot which wounded the deceased a few days antecedent to his death. This was controverted by the appellant's testimony and by evidence introduced by him tending to show that he was not present at that time.

An additional recital of the evidence is not deemed necessary, further than that which may appear in connection with the bills of exception.

His first complaint is the denial of his application for a continuance. Three witnesses were named, two of whom appeared upon the trial. From the absent witness, Hannah Morgan, appellant expected testimony to the effect that, late in the evening of the day upon which the deceased was first shot, she met the appellant upon the streets of the city of Houston in Harris county, and that he requested that he be permitted to spend the night at her house, but that she declined, for the reason that room was inadequate. In the application for a continuance, it is stated that the place of residence of the witness was unknown. On the 22d of September, a subpœna was issued to Harris county in which her specific address was given. The subpœna was returned on the 29th of September with the statement that the witness was not at the address designated, and could not be found. The homicide took place on the 2d of May. The previous shooting occurred on the 26th of April. Soon after the homicide, appellant became aware of the fact that he was under suspicion, and several circumstances were introduced tending to show that he was conscious of guilt. One of these was the hiding of the insurance policy, which occurred soon after the homicide. Others consisted of declarations of the appellant made about that time. After the homicide, he went to the city of Tyler, where he remained until the date of his arrest, which, we infer from the record, was about the 8th day of September. At all events, he was incarcerated at that time in jail in Brazoria county.

Explaining his action in overruling the motion for a continuance, the trial judge said that he regarded the diligence as inadequate, and that the purported testimony was not such as would have probably brought about a verdict more favorable to the accused. It might be added, we think, that the probability of securing the absent testimony by delay was not made apparent. From the qualification of the bill, it appears that at the time of his indictment, appellant was present and was represented by counsel. The unexplained delay of 14 days in issuing subpœna for the witness, under the circumstances, in our opinion, justified the conclusion of the trial judge that the rule of diligence was not met. The statute demands diligence in the issuance of process for witnesses, and, where the delay is substantial and unexplained, the diligence is not regarded sufficient to warrant the appellate court to hold that the trial court abused its discretion. Among the cases illustrating this principle, see Boaz v. State, 89 Tex. Cr. R. 515, 231 S. W. 790; Mann v. State, 87 Tex. Cr. R. 142, 221 S. W. 296; Mills v. State, 83 Tex. Cr. R. 515, 204 S. W. 642; Walker v. State, 83 Tex. Cr. R. 484, 204 S. W. 227; Wilson v. State, 87 Tex. Cr. R. 625, 224 S. W. 772; Vernon's Tex. Crim. Stat. vol. 2, p. 307, note 4, and cases collated. See, also, Hornsby v. State, 91 Tex. Cr. R. 168, 237 S. W. 940. The truth of the averments in the application for a continuance, as well as the merit of the ground set forth therein, shall be addressed to the sound discretion of the trial court, and his action in denying it is not to be reviewed upon appeal unless, when considered in the light of the evidence adduced upon the trial, the testimony set forth in the application was of a material character and probably true. This is the substance of subdivision 6 of article 608, C. C. P. Many cases applying this statute are collated in Branch's Ann. Tex. P. C. § 305. On the subject, see, also, Grayson v. State, 91 Tex. Cr. R. 137, 236 S. W. 1110; Bedford v. State, 91 Tex. Cr. R. 285, 238 S. W. 224; Weaver v. State, 91 Tex. Cr. R. 637, 240 S. W. 543; Evans v. State, 91 Tex. Cr. R. 579, 240 S. W. 916; Cruz v. State, No. 8711, 272 S. W. 486, recently decided. In the light of the record, we are constrained to the view that, in refusing to continue the case, and in refusing a new trial based thereon, the trial court committed no error.

The confession of the appellant reads as follows:

"I, H. P. Boxley, after having been warned by R. A. Bassett, the person to whom this statement is made, first, that I do not have to make any statement at all; secondly, that any statement that I make must be freely and voluntarily made; and, thirdly, that any statement that I make cannot be used in my favor, but may be used against me in the trial of any case growing out of the facts concerning which this statement is made, do hereby made the following free and voluntarily statement: My name is H. P. Boxley. I killed Tom Coleman, and no one else had anything to do with it. Signed H. P. Boxley. Witnesses: T. C. Brooks and S. T. Yancey."

Against its receipt in evidence several criticisms are addressed. In the statute it is declared that the statement must be voluntarily made after having been warned:

"First, that he does not have to make any statement at all. Second, that any statement made may be used in evidence against him on his trial for the offense concerning which the confession is therein made." C. C. P. art. 810.

The warning embraced in the confession in the instant case contains all that the statute requires. It is true that it contains more than was demanded by the statute, but we cannot bring ourselves to conclude that the additional warning either vitiates the confession or impairs its admissibility. The recital in the confession that "I, H. P. Boxley, after having been warned by R. A. Bassett, the person to whom this statement is made," seems to bring it clearly within the terms of that part of the statute which requires that the written statement "shall show that he has been warned by the...