Caldwell v. State

• Citation: 41 Tex. 86
• Parties: MAT CALDWELL v. THE STATE.
• Decision Date: 01 January 1874
• Court: Texas Supreme Court

41 Tex. 86

MAT CALDWELL

v.THE STATE.

Supreme Court of Texas.

1874.

APPEAL from Falls. Tried below before the Hon. J. H. Banton.

Late Saturday evening, in the month of June, 1869, a stranger, who gave his name as Lackey, obtained from S. M. Jones, of Limestone county, a warrant for the arrest of one Gilmore, who was charged by him with stealing two mules. Jones, according to his own testimony, was “acting justice of the peace.” On the following Sabbath morning, at sunrise,the defendant, Mat Caldwell, who was constable of this beat, appeared at the residence of William Cleveland, in company with Lackey and one Allen Norris, and inquired for Gilmore. They were informed by Mr. Cleveland that Gilmore was his tenant and lived with his wife near by. Caldwell, after announcing his purpose to arrest Gilmore, was invited, with his companions, to remain for breakfast, and was told by Cleveland that if they would remain he would go alone and arrest Gilmore. Whether this proposition was influenced by a suspicion that Gilmore's life was in danger, does not appear. The proposition was declined by Lackey, who stated that Gilmore was a bad man who had before escaped. Cleveland then accompanied the party to Gilmore's house, leaving Lackey concealed some two hundred yards from the house. Gilmore came out of his house when called by Cleveland, and was then arrested by Caldwell without resistance, being told by Cleveland that Caldwell was deputy sheriff and would treat him like a gentleman. Gilmore, who came out barefooted and bareheaded, desired to return for his shoes, which were brought to him. Caldwell told him that he had heard he was in the habit of getting away from officers; that he would be protected and treated properly, but if he attempted to get away he would be hurt. The party then started with the prisoner to Cleveland's house, and was joined by Lackey when they reached the place where he had remained concealed in a ravine. Lackey, after asking the prisoner if he recognized him, with pistol in hand, began to curse and abuse him, and told him that he had escaped from him several times but would not do so again. Here Caldwell interfered and stopped the abuse, announcing that Gilmore was his prisoner and he would protect him, but telling Gilmore that if he attempted to escape he would shoot him. When the party had entered through the outer gate of Cleveland's premises, some two hundred yards from his house, and were approaching the yard gate, they were met by Dr. Griffin, who objected to their going to the house with the prisoner, on account of the delicate health of Mrs. Cleveland. They then dismounted and turned in the direction of a school-house near the yard and to the right of Cleveland's house, with the avowed purpose of eating their breakfast at that place. Caldwell took charge of the horses, while Lackey and Norris started with the prisoner to the school-house, under instructions from Caldwell to shoot him if he ran from them. This instruction was given in response to a remark from Norris, who expressed his belief that the prisoner would run. As they approached the school-house the prisoner ran rapidly to some tall weeds, higher than one's head, in the rear of the school-house near a fence. Beyond the fence grew cotton higher than one's head, and still beyond that corn in tassel. As the prisoner crossed the fence, Lackey fired, and one of the witnesses thought the shot broke the prisoner's arm. After crossing the fence, Gilmore turned to the left, instead of seeking cover in the cotton and weeds, and ran rapidly to Cleveland's house, Lackey pursuing and firing at his back. Caldwell took position near the yard gate, and as Gilmore approached the door of the house, with his left side exposed, Caldwell fired at him twice, as stated by one of the witnesses, who saw the lint fly from his left side and blood flow from the wound. Gilmore sunk at the fire of the pistol, but continued to run, and entered the house pursued by Lackey. Several shots were fired in or beyond the house after they disappeared from sight. When Gilmore was next seen he was lying on a bed in Cleveland's kitchen, with four pistol wounds on his person, one of which was in his left side. His left arm was broken, and two balls had entered his back. He died from the wounds that day. None of the witnesses seem to have known Lackey, who disappeared after the killing. The only evidence of Gilmore's character was given by Tucker, who stated that it was “bad for breaking arrests.”

The wife of the murdered man remained, nursing him until his death. When told by the physician, Dr. Griffin, that he must die, Gilmore protested his innocence of the charge for which he was arrested, whereupon the doctor exhibited his sympathy for the murdered man by saying, in the presence of his wife, “Hush, Gilmore; don't die with a lie on your lips.” Dr. Griffin heard the conversation between the dying man and his wife, who urged him to repent, and testified that Gilmore said to his wife, “Be careful, Mary, what you say.” The witness, Jones, was permitted to testify to all the conversation of Lackey when he applied for the warrant, tending to show that Gilmore had stolen his mules. If any objection was made to this testimony by the District Attorney the record does not disclose it.

A bill of indictment against Caldwell was ignored by the first grand jury organized after the homicide. The sheriff (Tucker) was permitted to testify that the County Court of Limestone county passed a resolution (in 1869) complimenting Caldwell over his action in the premises. The records and papers of the district clerk's office were destroyed by fire in the fall of 1873, and the District Attorney was permitted to substitute an indictment against Caldwell, on the back of which he endorsed that it was “substantially the same as the original, which was lost by fire.”

At the February term, 1874, the venue was changed on Caldwell's application to Falls county. His arraignment was omitted prior to the change of venue, and no objection was made by his counsel to the indictment until the venue was changed.

Nine jurors disqualified themselves by swearing that they had conscientious scruples about inflicting the death penalty for crime, and were excused from serving on the jury, which was excepted to by Caldwell's counsel, and the action of the court overruling the exception assigned for error.

A colored juror was called, who, being examined, stated that he did not understand the obligations of an oath. After an ineffectual effort on the part of the court to educate him on the subject, “he still answered that he did not understand either,” and was excused from serving as a juror on account of mental defect. Exception was also taken to this, and the action of the court assigned for error.

Verdict of guilty, and punishment assessed at five years in the penitentiary. Motions for new trial and in arrest of judgment overruled. Their character will be understood from the opinion.

Herring & Anderson, for appellant.

George Clark, Attorney General, for the State.

ROBERTS, CHIEF JUSTICE.

The defendant was indicted in the county of Limestone for the murder of one Gilmore on the 16th day of June, A. D. 1868. At his instance, supported by the oath of four persons, the venue was changed to Falls county, where he was tried and convicted of murder in the second degree, and his punishment was assessed by the jury at five years' labor in the penitentiary. Motions for new trial and in arrest of judgment were made, which, being overruled by the court, judgment was rendered in accordance with the verdict of the jury, and defendant gave notice of and obtained an appeal to this court.

Those motions and the bills of exceptions taken at the trial raise numerous questions. It was objected in the motion in arrest of judgment that it did not appear by the record that the indictment was returned into court by the grand jury. It appears that the indictment on which he was tried was substituted in the District Court of Limestone county before the change of venue in lieu of the original, that had been destroyed by fire. The indictment was substituted without any contest as to its validity as a record of that court, and it purports to be a copy of the original, regularly filed in the court by the clerk thereof on the 11th day of June, 1873. The venue was changed at the February term, 1874, after the substitution of the indictment. The orders of the District Court of Limestone county, as contained in the transcript sent and certified to by the district clerk of Limestone county to the District Court of Falls county, did not go further back than those at the October term, 1873, subsequent to the date of the filing of the indictment, from which it is probable that the records containing them had also been burned. Had there been any doubt about the authenticity of the substitute as a valid indictment, the original of which had been properly returned into court, it would have been appropriately called in question by the defendant before the change of venue. Then the court would have had ample opportunity of ascertaining the authenticity of its own records, and, if necessary, of supplying the loss of any order that might be necessary to make a complete record of all the proceedings in this case from its inception. The defendant continually recognized it as a pending charge against him from the time of its substitution until his...