Chandler v. State

• Decision Date: 19 October 1910
• Citation: 131 S.W. 598
• Court: Texas Court of Criminal Appeals
• Parties: CHANDLER v. STATE.

131 S.W. 598

CHANDLER v. STATE.

Court of Criminal Appeals of Texas.

October 19, 1910.

Rehearing Denied November 16, 1910.

Appeal from District Court, Trinity County; S. W. Dean, Judge.

Ed Chandler was convicted of murder, and appeals. Affirmed.

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

RAMSEY, J.

The appeal in this case is prosecuted from a conviction for murder in the first degree, had in the district court of Trinity county on February 16th of this year, in which judgment of conviction appellant's punishment was assessed at confinement in the penitentiary for life.

The case is a very singular one, and it will be necessary to make a somewhat detailed statement of the facts in order to make the opinion understood. The appellant was charged with the murder of one Will Goynes by shooting him with a gun. The state mainly relied for a conviction upon the testimony of Ernest Swinney, who was undoubtedly a principal and an active participant in the death of Goynes, assuming, as the jury must have found, that he was in fact killed. It is shown by the state that Swinney testified under a promise of unconditional immunity from prosecution, conditioned solely that he would make a true statement of the facts touching the murder of Goynes. He testified, in substance, that on the evening of September 7, 1908, appellant approached him about 2 o'clock in the afternoon, and told him that he wanted him to help him take deceased out of jail; that at first he declined to do so; but that, after having spent most of the evening together taking several drinks, he finally agreed to aid in the enterprise; and that, in connection with appellant, Howard Magee, and Mart Chandler, they did enter the jail and aid in the escape of Goynes therefrom. He says: That he took a six-shooter and punched the window light out of a window in the office occupied by the sheriff, went in and got the keys, handcuffs, and a butcher knife, and went over to the jail. That Mart Chandler and Howard Magee stayed in front of the jail while appellant and himself went on up, when he unlocked the jail, got an axe, and broke open the inside doors, when Goynes came out with a small grip. That soon after getting out of jail Mart Chandler left them, but that appellant and Howard Magee went away and down into the woods. That appellant and Goynes were walking ahead, and Howard Magee and himself were behind, when appellant dropped back to where they were, when they asked him what he was going to do with Goynes, and appellant made the remark, "We will get rid of him," and said, "When I raise my hat, you kill him," talking to witness. That he walked on up about 20 feet ahead and raised his hat, and witness shot Goynes and killed him. That thereupon Magee, appellant, and himself piled up some brush, chunks, and stuff and burned him. That at this time he had a 38-55 Winchester which he had got at one Frank Brent's during the day. That Magee had a shotgun, and appellant a shotgun. That the Winchester was fired four or five times, and the shotgun was fired five times. He also says that he thinks the grip was left where Goynes was burned. The state also introduced one Ramiro Elias, a Mexican, who testified, in substance: That he was working at Frank Brent's restaurant on the day of the escape from jail, and saw appellant, Swinney, and Magee at the restaurant. That he overheard them talking and heard them say something about going and taking a redbone out of jail, at which time they were close to the bar. That they said something to him about being there, and told him to go on back, that it was none of his business. That one of them, he thinks Ernest Swinney, got a gun there which was a Winchester 38-55 caliber, and that this gun was brought back by Swinney the next day. That he tried to stop Swinney from getting the gun, but he took it anyway.

It was shown that, about a month after the escape of Goynes from jail, about three-quarters or a mile from Groveton, evidences of a fire were found in which the blade of a knife was discovered, some bones, some metal pieces that belonged evidently to a valise, and some clothing of a character which had been theretofore worn by Goynes. We think that the testimony of Dr. C. H. Bradley establishes beyond doubt that the bones discovered and produced were the bones of a human being. His testimony, to our minds, shows a perfect familiarity with the nature, aspect, and characteristic of the bones of the human body, and demonstrates to our minds beyond serious doubt that these were the bones of some person. Among other portions of the body found was the lower jaw, and the first and second ribs of the human trunk, and a portion of the cerebral spine, as well as a piece of skull, part of the thigh bone, and a piece of the breast bone. This physician, however, was unable to say whether these were the bones of a man or a woman, and also as to whether they were the bones of a negro or white person. Dr. Guy Campbell, a dentist, who testified, gave it as his impression from an examination of the teeth that the teeth preserved and found must have belonged to a person under 30 years of age. A number of witnesses testified that the knift blade found was in their opinion the blade from the butcher knife which had been kept in the sheriff's office. At least one witness heard distinctly about the number of shots which the witness Swinney testified were fired, and at about the time named by him. Other witnesses testified to seeing persons leaving the jail, corresponding in number and approximately corresponding with the time when Swinney said the parties in question had left the jail. It was shown further by the state that an indictment was pending against appellant in Polk county charging him with theft, in which case deceased was a witness. It also appeared that there were five indictments pending in the district court of Trinity county against appellant, Goynes, and another person, charging them with theft. It was made to appear on the trial that appellant had claimed that Goynes had made certain statements concerning appellant's connection with these charges, and the testimony raised the issue clearly that the motive for the killing by appellant was to protect himself against any testimony or disclosures which deceased might make. Appellant sought to show, in the first place, that Goynes was not dead. He introduced two witnesses by whom he proved that they had seen him under circumstances, however, which did not make it certain that he was the person seen; but these witnesses stated that in their judgment the person seen by them was Goynes. The cross-examination of these witnesses, however, was such as quite naturally to lead the jury to doubt their statements. They produced, however, two other witnesses, both of whom testified that they knew Goynes well, and who testified positively that several days after his supposed death they had eaten dinner with him. These witnesses were Joe Lester and Ode Vaughan, both of whom live in Angelina county. Their testimony was to some extent shaken on cross-examination, but without any very substantial contradiction. It was also shown that, some time after the alleged murder of Goynes, the then sheriff of the county made a trip to Coleman county on information that Goynes was located in that section, but that this trip was without result. No other trace was ever found of Goynes, and, unless the testimony of the witnesses above is to be believed, he seems to have utterly disappeared from the earth. An inspection of the entire record has convinced us that there was ample evidence to sustain the finding of the jury affirming that the remains produced in court were those of Goynes, and, of course, that he was dead. We think, also, there was ample evidence in the record to show that he died through the agency and by procurement of appellant when he was present, actively directing operations which resulted in his death. To set out all the facts leading us to this conclusion would be an almost interminable task, and we deem it unnecessary so to do. We have made this somewhat full statement of the general aspects of the case in order that the opinion may be understood.

1. The first question appearing in the record relates to the action of the court in respect to the impaneling of the jury by which appellant was tried. It is made to appear by proper bill: That, when the case was called for trial, a venire of 150 men had been legally drawn to serve as veniremen. That of these only 46 were served in person, and a very considerable number shown to have been served by written notice, and of these last 16 were shown to be out of the county. That thereupon appellant asked the court not to require him to announce ready for trial until he should first cause an attachment to be issued for the veniremen who were not in attendance upon the court, to which suggestion the court replied that appellant should first make his announcement, and that if such announcement should be ready for trial he would then issue an attachment as prayed for and would give the defendant a reasonable time in which to have the absent veniremen brought into court, and thereupon appellant announced ready for trial, and the attachment was immediately issued and placed in the hands of the sheriff for execution. That at the same time the court directed the sheriff to summon and bring before the court as talesman 75 or 100 men in addition to the 28 men for whom the attachment had been issued; the court stating that he would not require appellant to act on the talesmen until the special venire had first been exhausted. This, it seems, was on the 16th day of February. On the 18th day of February none of the veniremen for whom the attachment had been issued had been served, nor were they in attendance upon the court, but that 15 men appeared in court as talesmen. The bill also recites that the sheriff at the time stated...