Choice v. State

• Decision Date: 18 November 1908
• Citation: 114 S.W. 132
• Parties: CHOICE v. STATE.
• Court: Texas Court of Criminal Appeals

114 S.W. 132

CHOICE v. STATE.

Court of Criminal Appeals of Texas.

November 18, 1908.

Rehearing Denied December 10, 1908.

Appeal from District Court, Smith County; R. W. Simpson, Judge.

Ed. Choice was convicted of assault with intent to murder, and appeals. Affirmed.

See, also, 52 Tex. Cr. R. 285, 106 S. W. 387.

Fitzgerald & Butler, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.

BROOKS, J.

Appellant was convicted of assault to murder, and his punishment assessed at four years' confinement in the penitentiary.

This is the second appeal of this case. The former opinion will be found in 52 Tex. Cr. R. 285, 106 S. W. 387.

The facts, in substance, show that Jim Williams owned some hogs, and at night kept them penned in the bottom. Learning that some parties were going to steal or kill the hogs or drive them away, he secured the services of the constable and lay in watch for their anticipated trespass upon his property. As the prosecuting witness and the constable, in company with others, approached the pen, said trespassers, including appellant, according to the state's case, fired upon the constable and the prosecuting witness Jim Williams. They returned the fire, and a general fusilade of shots was returned by each of the parties until the trespassers ran away. No one was shot. The evidence further shows that at the time of the shooting the parties engaged therein were a very short distance from each other. This is a sufficient statement of the evidence to discuss the questions involved in this record. The indictment contains three counts; the first charging assault with intent to murder W. D. Lowery, the constable, the second, an assault with intent to murder Jim Williams, the complaining witness, and the third, an assault with intent to murder Jim Williams, W. D. Lowery, Martin Killean, and Charlie Williams. The court refused to submit the last count.

Appellant made a motion to quash the indictment on the ground: That the district attorney was present when the grand jury were deliberating upon the accusation against the defendant; that the Honorable J. H. Beavers, as district attorney, prepared the bill of indictment in this case, carried it prepared into the grand jury room, and told the grand jury that he desired them to find a new bill of indictment in this cause, because he desired additional grounds in the indictment that were not in the old indictment which was then pending; that it was unnecessary in such transactions to have witnesses before them; that if they, the grand jury, desired witnesses, he would have them brought before them; that some members of the grand jury told the district attorney, if that was customary and proper, it would be all right with them to find the indictment, and, being assured that it was not improper, they told him they would do so, whereupon the said district attorney retired from the grand jury room, and the grand jury voted to find the present indictment. There was no error in the refusal of the court to quash the indictment. Where an indictment, in the judgment of the district attorney, is insufficient, he being the legal adviser of the grand jury, it is his duty to call their attention to said fact and have a new indictment presented. The bill shows that he was not present when they voted on the bill. The statute precludes any one being present save and except the grand jury when they vote on a bill; but the law of this state is that the grand jury may take the advice of the district attorney, or the judge when they do not agree with the district attorney, on returning indictment, on questions of law. We cannot consider the fact, if it be a fact, that they heard no testimony before returning the new bill. This matter is left with the sound discretion of the grand jury.

Bill of exceptions No. 2 shows that appellant placed Earl Harrison on the stand and asked him the following question: "Please state whether or not you are acquainted with the general reputation of Reece Post in the community in which he lives, as to whether or not he was an overbearing negro?" In answer to this question, the witness stated that he knew. Then appellant asked the witness to state to the jury whether or not the said Reece Post was considered an overbearing negro in said community, and appellant also asked said witness whether he was well acquainted with said negro, Reece Post, and whether or not he knew if the negroes in said community were generally afraid of said Reece Post, and the witness stated that he could answer said question; the object and purpose of said questions being to show that the negroes in the community in which Reece Post lived were afraid of him, and that he was a terror to said negroes, and that the general reputation in that regard was known all over said community as an overbearing negro, and that he (Reece Post) was not afraid of any statements that he had testified to, or of being afraid to not go into the proposed conspiracy made by Dave Choice, also to throw light upon his testimony, and for the purpose of affecting his credibility as a witness. The state objected to all the questions on the ground that it was immaterial and irrelevant. The witness would have answered, if permitted to do so, that the general reputation of Reece Post in the community in which he lived was that of an overbearing negro, and that he was considered a bully, and to the other question he would have answered that the negroes in said community were generally afraid of said Reece Post, and he was considered a terror to them. On the trial of the case, Reece Post turned state's evidence, and, among other things, said he entered into a conspiracy with the parties to injure or steal the hogs through fear. This evidence was offered on the theory that it would refute the idea that he entered with said motive. We do not think the testimony was admissible for said purpose. He may have been an overbearing creature and...