Cline v. State

• Citation: 71 S.W. 23
• Parties: CLINE v. STATE.
• Decision Date: 12 December 1902
• Court: Texas Court of Criminal Appeals

71 S.W. 23

CLINE v. STATE.

Court of Criminal Appeals of Texas.

December 12, 1902.

Appeal from district court, Gonzales county: M. Kennon, Judge.

Dan Cline was convicted of murder, and he appeals. Reversed.

Walter & Von Strewe, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of murder in the second degree, and his punishment assessed at seven years' confinement in the penitentiary.

Appellant assigns as error the action of the court in overruling the motion for continuance, and then in overruling the motion for new trial based thereon. In explaining the bill, the court shows that appellant was lacking in diligence in procuring process for the witnesses; but the question presents itself, if it be conceded that the testimony of the absent witnesses was material, ought not the court to have granted a new trial on this ground? Appended to the application is the affidavit of witness Love Tollerson, one of the absent witnesses. He says he was present at the time of the shooting, and saw Dan Cline enter the east door of the room where the homicide took place, and at the same time, or immediately thereafter, he saw Wirk Stewart in the room, and he was facing defendant, Dan Cline. He immediately turned his right side to defendant, placing his left hand in his left pants pocket, and threw his right hand under his coat, about his (Stewart's) waist. Then it was that Dan Cline fired at Wirk Stewart with his pistol, which was the shot that killed Tandy Tollerson, father of witness, who was standing just beyond Wirk Stewart. This testimony, while not entirely clear on the point, suggests that Stewart made the first demonstration, and, in connection with the other testimony found in the record on the line of self-defense, was material evidence for appellant. Appellant says he could have proven by the absent witness Tom Butler the declarations of appellant immediately after the homicide, indicating self-defense. Two witnesses at the trial testify to these declarations as a part of the res gestæ, but this would afford no reason why appellant would not have been entitled to still further testimony on this point. In this connection, we would observe that appellant files affidavits to the effect that Wirk Stewart had intimidated the witnesses, which caused them to remain away. These affidavits were evidently made in order to excuse diligence. In rebuttal of these, the state filed affidavits showing that there were fines adjudged against said witnesses in misdemeanor cases, and attributed their absence to this. From these affidavits it does not appear that appellant was engaged in keeping these witnesses away. If so, unquestionably, he would not be entitled to a new trial. But viewing the question purely in the light of an absence of diligence to secure said witnesses, it occurs to us that, notwithstanding this lack of diligence, the court should have granted the motion for new trial.

Appellant also insists that the court committed an error in charging as was done on threats, and in refusing to give the special requested instruction on...