Canon v. State

• Decision Date: 23 March 1910
• Citation: 128 S.W. 141
• Parties: CANON v. STATE.
• Court: Texas Court of Criminal Appeals

128 S.W. 141

CANON v. STATE.

Court of Criminal Appeals of Texas.

March 23, 1910.

Rehearing Denied May 18, 1910.

Appeal from District Court, Polk County; L. B. Hightower, Judge.

John W. Canon was convicted of homicide, and appeals. Affirmed.

F. Campbell, for appellant. John A. Mobley, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was convicted of murder in the first degree; his punishment being assessed at death.

About 6 o'clock on the evening of the 28th of November, 1908, appellant shot and killed Warren Perryman. There were no eyewitnesses to the homicide except appellant. The state's case was one of circumstantial evidence, except that in rebuttal appellant's written confession was admitted as evidence. In making out the case in chief the state relied upon circumstances exclusively. Appellant took the stand in his own behalf and admitted the killing, but under circumstances showing a clear case of self-defense. The evidence for the state in chief shows that appellant and deceased lived close neighbors, both negroes, and both in the employ of a large lumber company. It is also shown there was ill feeling between the parties, growing largely out of a prosecution of appellant for cattle theft. The indictment charging that offense alleged the ownership in deceased, and it is further shown in the evidence that deceased was a very important witness in that case, and further that appellant was anxious that he should not appear against him in the case. Threats were also introduced by the state, made by appellant against deceased. There were other circumstances detailed before the jury with reference to the relation of the parties to each other, and threats made by one against the other. On the evening of the homicide, about 6 o'clock, the reports of three gunshots were heard at the point where it was subsequently shown deceased was slain. The state introduced many circumstances to connect appellant with the homicide—evidence of tracks; the condition of the ground; gunshot shells; the clothes worn by deceased; a sack containing flour deceased was carrying from a nearby store to his residence; the position occupied by the parties as shown by the wounds on the body of deceased; that a shotgun wad and also a shot were sifted from the flour taken from the sack supposed to have been carried by deceased—which corresponded with the state's theory that appellant was lying in wait, and shot deceased unawares, all of which were introduced by the state. It was further contended by the state that nearby where the killing occurred was a little grove of myrtle bushes, from which appellant fired the shots. It was also shown by the state that after the homicide the body of deceased was dragged from the place of the homicide by a circuitous route into a small ravine entering into a creek, at which point the body was partially covered. Circumstances were introduced to show that appellant had tied a rope around the feet of deceased, and fastened the other end of the rope to the horn of the saddle, and by this means did the dragging. Appellant's gun was found in one of the houses on his place, recently discharged. This was the morning following the homicide. Appellant's shoes, with socks in them, were found in his barn; both being wet. There were other circumstances not necessary to mention introduced by the state to connect appellant with the homicide, and show that the killing was done by lying in wait. Appellant took the stand in his own behalf, admitted the killing, and sought to justify the act. His statement briefly and substantially may be summed up thus: That on the evening of the killing, about 5 o'clock, or thereabouts, his horses not having returned to his place, he went in search of them, carrying his double-barreled shotgun with him with some additional cartridges in his pockets. That some distance from home, he found his horses, and was driving them home when he met deceased. That deceased was going south, and appellant going north. They were traveling different roads, which, at the point of meeting, were about 40 to 50 feet apart. That deceased had threatened his life on various occasions. When he met deceased, deceased remarked to him, "John Canon, your time is now up," and that deceased jerked his pistol, and they both fired at the same time. That he fired a second shot. By these means appellant accounts for the three shots that were heard by the witnesses. That he went on home, penned his horses, placed his gun in a little barn or crib, and did not go in the house. That he went to attend to some work obligatory upon him as an employé of Mr. Carter, one of the mill owners. He accounts for his absence from home until 9 or 9:30 by showing that he did various things, unnecessary here to detail. That he reached home about 9 or 9:30, pulled off his shoes and socks, which were wet, it having been raining that evening, and placed them in his barn, which was his custom under such circumstances, because his wife objected to his carrying his dirty wet shoes into the house. That he went to bed, and remained with his wife that night until 5 o'clock in the morning, when he arose, dressed himself, saddled his horse, and went out to where the tragedy had occurred the evening before, to ascertain whether deceased was dead. Discovering the fact that he was dead, he prepared to remove the body; that the pistol of deceased was lying near him, which he picked up and threw in a nearby pond. That being a small man, and physically unable to handle the body of deceased, as he intended, by putting him on the horse and carrying the body by that means, he tied a rope around the feet of deceased and dragged him to the place where the body was found, and sought to cover the body, which he only succeeded partially in doing. That he accounts for all these acts and this conduct on his part by reason of the fact that he was frightened, and especially afraid of the white people finding it out. The witnesses who testified to the sound of the shots swore they all sounded alike. In rebuttal the state introduced the written confession of appellant. The confession in the main is in the nature of a confession and avoidance, in which he asserts his case of self-defense, but states in that written confession that he was out there with a woman; he did not mention the fact that he was after his horses or driving them home. This is a sufficient statement of the case to review the questions.

1. Application to change the venue was made and overruled. There are 14 bills of exception touching the question of change of venue. The first recites the fact that the court erred in overruling the application for change of venue when the undisputed evidence of the witnesses Kimball, McMillan, Laird, and Caton shows that the Camden and Corrigan precincts were violently opposed to the defendant, and that in the Camden precinct, containing 80 voters, 75 of them had signed the petition addressed to the court as set up in said application. That by the witness Kimball it is shown that said petition could have been augmented 100 signatures in an hour's time in Livingston, the county site of Polk county, and because by the undisputed testimony of the witnesses Kimball, McMillan, Laird, Caton, Garvey, Stephenson, and Chapman it is shown that the defendant could receive but one verdict in Polk county, which barred the possibility of an acquittal. This bill is signed with the following qualification by the court: "The above bill of exception is allowed only in so far as it shows that the court overruled the motion to change the venue of this case. Counsel's zeal in framing this bill has overmastered his sense of propriety, and his conclusions as to what the evidence showed are greatly at variance with the court's idea." The remaining 13 bills touching the application to change venue are reserved to the ruling of the court in regard to certain questions asked of the witnesses in regard to the application for change of venue, and answers or expected answers. We are of opinion that the matter of change of venue as presented by this record cannot be considered. The statement of facts in regard to the change of venue is not made a part of any of the bills of exception, nor was the statement of facts included in a bill of exceptions; and we are further of opinion same cannot be considered because of the fact that the bills of exception in regard to change of venue were filed out of term time. Article 621, White's Ann. Code Cr. Proc., reads as follows: "The order of the judge granting or refusing a change of venue shall not be revised upon appeal, unless the facts upon which the same was based are presented in a bill of exceptions prepared, signed, approved and filed at the term of the court at which such order was made." This statute has uniformly been held to be an exception to the general rule in regard to filing statement of facts and bills of exception after term time as provided by statute. This statute was enacted for the purpose of applying to this particular question of practice, and is therefore not within the general statute, which authorizes the filing of bills of exception and statement of facts after court has adjourned. The authorities in this state are uniform in holding that the ruling of the court in granting or refusing a change of venue will not be revised on appeal, unless the facts on which the ruling is based are presented in bill of exceptions prepared, approved, and filed during the term of the court in which such order was made; and, unless the bills of exception contain the evidence, the question will not be considered. Blackwell v. State, 29 Tex. App. 194, 15 S W. 597; Adams v. State, 35 Tex. Cr. R. 285, 33 S. W. 354; Kutch v. State, 32 Tex. Cr. R. 184, 22 S. W. 594; Smith v. State, 31 Tex. Cr. R. 14, 19 S. W. 252; Miller v. State, 31 Tex. Cr. R. 609, 21 S. W. 925, 37 Am. St. Rep. 836; Jackson v. State, 30 Tex. App. 664, 18 S. W. 643. ...