Burrell v. State

• Decision Date: 01 January 1857
• Citation: 18 Tex. 713
• Parties: JAMES BURRELL AND ANOTHER v. THE STATE.
• Court: Texas Supreme Court

18 Tex. 713

JAMES BURRELL AND ANOTHER

v.THE STATE.

Supreme Court of Texas.

1857.

The statute makes no provision for a third continuance; and whether it shall be granted or not must rest in the sound discretion of the court. It would require a strong case to warrant the control of that discretion, by this court.

Where a person who had been summoned upon a special venire, in a capital case, being sworn upon his voir dire, said he had some impressions from conversing with Bell, a witness for the state, but that he had no opinion, only from rumor; this court remarked that it appeared from the statement of facts that Bell's testimony was not important; that it did not appear that the juror had formed such an opinion, even if he had expressed it, as would disqualify him; but, if he was incompetent, he did not sit upon the trial, being challenged by the defendant peremptorily; and it did not appear that defendant exhausted his peremptory challenges.

Where a challenge of a juror, for cause, is overruled, and the juror is then challenged peremptorily, this court will not revise the overruling of the challenge for cause, unless it appear that the defendant exhausted his peremptory challenges before a jury was obtained.

Where a person who had been summoned on a special venire, in a capital case, being sworn upon his voir dire, stated that he had conscientious scruples about the infliction of capital punishment, that his scruples would influence his verdict, though he believed men might sometimes be rightly hung, it was held that the state's challenge for cause was properly sustained.

Where the credit of a witness has been impeached by proof that he made a statement to a witness, contrary to what he had testified to on the trial, it is competent to admit evidence of his general good character for truth and veracity.

This case comes clearly within the well settled rule respecting the admissions of such declarations (dying declarations).

It has been uniformly held that the admission of evidence of dying declarations does not infringe the constitutional right of a person accused of crime, to be confronted with the witnesses against him.

Although a man be present whilst a felony is committed, if he take no part in it, and do not act in concert with those who committed it, he will not be a principal merely because he did not endeavor to prevent the felony or apprehend the felon. Whether he was aware of the intention of his companion and participated in it, is the fact to be proved, in order to implicate him in the criminality of the act.

But his presence and companionship, and his conduct at and before and after the commission of the act, were circumstances from which the main fact of his participancy in the criminal intention and design of his companion might be inferred.

It is the province of the judge to determine when there is or is not any evidence as to a certain fact; it is therefore not error to refuse to instruct the jury, that if they believe there is no evidence of a certain fact, they must acquit the defendant when there is some evidence of such fact.

The circumstances which will amount to sufficient proof of a disputed fact, can never be previously defined. The only legal test of which they are susceptible, is their sufficiency to satisfy the mind and conscience of the jury.

Instructions to the jury, asked by a party, should not be presented in the form of abstract propositions, but should be constructed upon the evidence in the particular case, leaving the fact to the jury.

Where there was positive evidence that the fatal wound was inflicted by one of the defendants, and there was no positive proof that his companion, the other defendant, was aware of his intention, or that he committed any overt act, this court reversed the judgment, as to the one defendant, on the ground that the court below did not distinctly inform the jury that if they should find the one guilty, the fact to be found as to the other would still be, whether he was aware of his companion's design and participated in it; the circumstantial evidence not being of a conclusive nature, and there being cause to apprehend that said defendant did not have a fair trial.

Appeal from Austin. Tried below before the Hon. Nelson H. Munger.

The appellants, James Burrell and James R. Burns, were indicted on the 8th of November, 1854, for the murder of William Bird. The indictment charged the immediate act of killing upon each, and that the other was present, aiding, etc. The murder was alleged to have been committed on the 15th of August, 1854, and the defendants were in custody. At same term, the case was continued upon affidavit, drawn as the affidavit of Burrell, but signed by both defendants, and certified as “sworn to and subscribed before me this 11th day of November, 1854”--name of clerk. The ground for continuance was to procure the attendance of George Hervey, Thomas Lubbock, Philip Thompson, J. H. Thompson, George Stansbury, Major Kellum, H. McGowen and William R. Baker, all residents of Harris county, to prove said Burrell's good character; the affidavit stated that Burrell was a stranger in Austin county, that he had been confined in prison since the middle of September, that he was unable to employ counsel, and had no counsel assigned him until the meeting of the court; also, to procure the attendance of J. H. Kelly, of Victoria county, to prove his conduct in that county (stating it) after the date of the killing; also to procure the attendance of a witness whose name he had just learned that day, Lawrence Miller, a resident of Austin county, for whom he will immediately cause a subpœna to be issued, by whom he could prove an alibi; that he knew of no other witness by whom the same facts could be proved; that the application was not made for delay; that he could procure the attendance of said witnesses at next term of the court, etc.

At spring term, 1855, defendants filed an affidavit for continuance, on the ground of the absence of the same witnesses, including Lawrence Miller, on account of whose absence the case had been continued at the term before, and excused their inability to show that they had used due diligence, by the fact that their counsel had been taken suddenly ill and died during the present term of the court; they also made the death of said counsel, and the fact that their present counsel had not had time to prepare their defense, a ground of the application. The case was continued.

Fall term, 1855, affidavit for a continuance, as follows:

James Burrell, defendant in the above entitled cause, after being duly sworn, says, and subscribes to the same, that he cannot go safely to trial at this term of the court, for the want of testimony material to aid him in his defense; that Lawrence Miller, a resident of this county, and Allevrin Eakhardt, of Colorado county, are very material witnesses to aid him in his defense; that due diligence has been used to procure the attendance of said witnesses; that it was but a short time since, to wit: about the first day of September, 1855, by the active and unwearied efforts of his counsel, that they were enabled to find out the residence of said Eakhardt, and to ascertain the materiality of his testimony; that said Eakhardt has resided in various places since affiant has been confined in the jail of Austin county, not remaining more than a month or a few weeks in a place, so that it was impossible for affiant to ascertain, until he fixed his residence in Colorado county, where to send a subpœna, and where to send to find him, and ascertain the facts, of which he knew, that were favorable to aid him in his defense; that a subpœna was issued about the first of September, 1855, to said county of Colorado, which was in ample and sufficient time to have made service of the same, and to have procured the attendance of said witness at this term; that defendant does not know why said subpœna has not been duly served and returned, or whether it has been served, and that it is not by his procurement or consent that said witness, Eakhardt, is not now in attendance on said court. He expects to prove by said Eakhardt that he was more than twenty miles from the place where Bird was killed, at the time of the homicide. He further says that Charles S. Kelly, whose residence is unknown to him, is also a material witness to aid him in his defense; that a subpœna was duly issued to the county of Victoria, which he knew to be the last residence of said Kelly, and the same was returned not found; that said Kelly has left the county of Victoria, and although defendant has used all the means in his power, both by his exertions and those of his counsel, to find out the residence of said Kelly, he has failed. He expects to prove by said Kelly, the time he saw him in the town of Victoria, that he was there but a few days after the 1st August, 1854, and was publicly and openly seeking work at his trade as a carpenter in said town; that he does not know the cause of failure of said testimony; and does not know from what other source he can procure the same; that he expects to procure the attendance of said witness at the next term of the district court for said county of Austin; that said witness is not absent by the procurement of affiant; that he does not know of any other source from which said testimony can be obtained. He further swears that he cannot go safely to trial in said case at this term of the district court of Austin county for the want of the testimony of Lawrence Miller, who resides near Post Oak Point, in the county of Austin, state of Texas, by whom he can prove, or expects to prove, that affiant was seen by said Miller at the distance of thirty-five miles from the town of San Felipe, in said county of Austin, at 10 o'clock P. M., on the 7th of August, 1854, and at such time as it would have been impossible for him to have killed the deceased Bird, with whose murder affiant...