Connell v. State

• Decision Date: 20 May 1903
• Parties: CONNELL v. STATE.
• Court: Texas Court of Criminal Appeals

75 S.W. 512

CONNELL v. STATE.

Court of Criminal Appeals of Texas.

May 20, 1903.

Appeal from District Court, Bell County; Jno. M. Furman, Judge.

John Connell was convicted of murder in the second degree, and appeals. Reversed.

J. B. McMahon, Winbourn Pearce, and Henderson & Freeman, for appellant. Howard Martin, Asst. Atty. Gen., J. B. Durrett, and W. W. Hair, Dist. Atty., for the State.

HENDERSON, J.

Appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of 25 years; hence this appeal.

The evidence shows that deceased was the father of appellant, the family consisting of deceased, his wife, two grown daughters, a minor son, and appellant. Their home was situated in the suburbs of Belton. Appellant was an unmarried man, about 30 years of age, and had lived with his father all of his life. Deceased left his home on Thursday morning, and did not return until Friday evening, when the homicide occurred. The evidence shows that deceased drove home in a buggy, and called his younger son, Darling, to get the mail he had brought from town. Appellant replied that Darling was sick, and that he would come and get the mail. He went out to the gate for the mail. The altercation occurred which resulted in the homicide, deceased being on the outside of the wire fence and appellant on the inside. During the altercation appellant stabbed deceased in the left arm with a dirk knife, the knife also cutting through the vest and striking a rib. The knife penetrated an artery, and deceased died from the loss of blood. The theory of the state was that appellant bore some grudge against his father, and was angry because deceased had stayed away from home over night; that when he drove up home, and appellant came out, he asked him why he had stayed out the night before, and deceased said he had stayed all night with his friend Yarbrough. Appellant called him a damn liar, and deceased then hit at or struck him, and appellant then cut deceased with his knife. Appellant's theory was that he went out to where deceased was to get the mail, and as he walked up to the fence he asked deceased where in the hell he had stayed last night. Deceased replied it was none of his damn business. Appellant replied that he thought it was, and to this deceased said, "You are a damn lying son of a bitch," and then started towards appellant, who was in the meantime stooping down picking up the papers which deceased had thrown over in the yard. Just as appellant raised up, deceased grabbed at him with his left hand, caught him in the collar, and struck at appellant with a knife; and appellant then drew his knife, which he had in a leather strap buckled at his belt, and struck deceased a single blow, in order to get loose from him; that he cut deceased in order to prevent him from cutting himself. This is a sufficient statement of the facts in order to discuss the assignments of error.

Appellant made a motion for continuance on account of the absence of Mrs. McDonald, who had been subpœnaed, but at the time of the trial she was shown to be sick, and unable to attend court. Appellant alleged that he could prove by said witness that she was well acquainted with the family of deceased, and the conduct and general bearing of deceased and his son (appellant) toward each other, and that they were in the habit of using rough language in ordinary conversation between each other, which did not show any animus. This testimony was particularly desired on the part of defendant in order to qualify and explain the meaning and animus of appellant toward his father immediately after the difficulty, when the expression was proven on the part of the state to the effect that when some one started to give deceased some whisky and appellant said, "God damn it, give it to him straight; he is used to it." "That the witness was present, and heard this statement. That said witness, knowing the habits and conduct of appellant and deceased toward each other, would testify that this had no particular meaning indicating malice or ill will of appellant toward his father." We do not believe that said testimony was material, even if it be conceded that it was admissible. It is not pretended that said witness had ever been present on any previous occasion when deceased and appellant had a difficulty, and the testimony here offered was in connection with a difficulty. The parties had just had a fight, and deceased had been stabbed with a knife by appellant, and a number of witnesses were present on the occasion when the expression was used, and any witness who was present on the occasion when the expression was used would have been qualified to state the tone of voice that accompanied the expression, and the circumstances attending it. It does not occur to us that a witness who may have known how appellant and his deceased father ordinarily treated each other would have been qualified to testify as to how this expression was used, whether angry or not, any more than another witness who was not so familiar.

Appellant made a motion to change the venue on the ground that so great a prejudice existed in Bell county against appellant as that he could not expect a fair and impartial trial. This was controverted on the part of the state. Some 50 witnesses were examined, the witnesses covering almost every section of Bell county. On the part of appellant some 27 witnesses testified that the matter had been talked of in the county, and it was generally known that appellant had killed his father, and that prejudice existed against him on that account to such an extent as that he could not expect a fair trial in said county. Some of the witnesses stated that the people said he ought to be hanged for the offense, and others that he ought to be punished severely. On the part of the state some 22 witnesses rebutted appellant's testimony, and stated that there was no prejudice in the county against appellant, and that he could get a fair and impartial trial. On this testimony the court overruled appellant's application to change the venue, and proceeded with the trial, which resulted in a verdict of murder in the second degree, the penalty assessed being confinement in the penitentiary for a term of 25 years. We take it that the matter of change of venue was within the sound discretion of the court, and the court was justified in finding against appellant on that issue. Renfro v. State, 42 Tex. Cr. R. 393, 56 S. W. 1013. The writer of this opinion believes that this discretion can be tested by the result reached in the trial of the case, and, looking at that result, it was demonstrated appellant could get a fair and impartial trial in said county.

Appellant contends that this cause should be reversed on account of the action of the court in the impanelment of the trial jury. The bill of exceptions shows that the juror Bailey (who was one of the veniremen) on his voir dire stated that he had heard appellant had killed his father, and that he was indicted for said offense, and that the burden of proof would be on defendant to show his innocence of said offense. This juror, on his further examination by the state and by the court, qualified this statement, and said, in effect, that he did not mean to say appellant would have to prove his innocence before he would acquit him, and that he could try him fairly and impartially on the evidence, and give him the benefit of the reasonable doubt, as he would any other person. This juror was challenged for cause by appellant, and the challenge overruled, when appellant per-emptorily challenged him. As to the juror Kuschke—who stated, in effect, as did the juror Bailey, except that he did not qualify his statement to the same extent as did Bailey—the court held him to be a competent juror when challenged by appellant for cause, and appellant then exercised on him a peremptory challenge. At the time this challenge was exercised some eight jurors had been impaneled, and appellant did not exhaust his peremptory challenges. Subsequently, when the tenth juror was impaneled, appellant had exhausted his peremptory challenges, when the court reconsidered his ruling with reference to the juror Kuschke, holding he was disqualified, and gave appellant another challenge. This additional challenge appellant exercised, and the jury was afterwards completed, appellant having exhausted his peremptory challenges before it was completed. The bill does not show that any objectionable juror was afterwards placed on the jury. The court certifies that when the state had accepted the twelfth juror "defendant's counsel simply said, `Defendant takes the juror.'" The rule being that, before an appellant can avail himself of the action of the court holding a juror was qualified when he was not, and thus forcing appellant to challenge said juror, the bill must show some objectionable juror was forced on appellant. We do not understand by this that the jurors forced on appellant must be subject to a peremptory challenge, but their examination must show some degree of disqualification, as, to wit, the formation of some sort of opinion as to the guilt or innocence of appellant, though not a disqualifying opinion. See Hudson v. State, 28 Tex. Cr. App. 323, 13 S. W. 388; Holland v. State, 31 Tex. Cr. R. 345, 20 S. W. 750. For other authorities see White's Ann. Code Cr. Proc., art. 673, § 750.

By bills of exception Nos. 6 and 8 appellant proposed to prove by Susie Connell and Mrs. Connell specific acts of violence and ill treatment on the part of deceased toward other members of the family than appellant. Among other things, it was proposed to prove by Susie Connell that deceased had assaulted her with a knife on one occasion, and appellant never offered to interfere; and by Mrs. Connell that on one occasion deceased drew a knife on her, and threw it at her, and hit her on the head, and frequently assaulted her...