Davis v. State

• Decision Date: 04 February 1925
• Docket Number: (No. 8399.)
• Citation: 275 S.W. 1029
• Parties: DAVIS v. STATE.
• Court: Texas Court of Criminal Appeals

275 S.W. 1029

DAVIS v. STATE.

(No. 8399.)

Court of Criminal Appeals of Texas.

February 4, 1925.

Rehearing Granted June 24, 1925.

State's Rehearing Denied October 14, 1925.

Appeal from District Court, Franklin County; R. T. Wilkinson, Judge.

Thurman Davis was convicted of burglary, and he appeals. Reversed and remanded.

J. H. Beavers, of Winnsboro, and F. B. Caudle, of Mt. Vernon, for appellant.

Tom Garrard, State's Atty., and Grover C. Morris, Asst. State's Atty., both of Austin, for the State.

LATTIMORE, J.

Appellant was convicted in the district court of Franklin county of burglary, and his punishment fixed at two years in the penitentiary. The state's theory is that appellant had picking cotton for him one Rozier and Moore, paying them $1 per 100 pounds, and that he proposed to them that if they would get other cotton for him out of the pens or fields of other people that he would pay them $1 per 100 for such illegally gotten cotton, and that upon their agreement he took them in his car and drove around the country until they came to the field in which was the alleged burglarized cotton pen, and that he waited in his car in the road while they went to the pen, burglarized it, and brought back to him cotton stolen by them, which was later mingled with other seed cotton belonging to appellant and appropriated by him.

Appellant asked for a change of venue upon the calling of the case. The basis of his application was that there existed in Franklin county such prejudice against him as that, in the opinion of the compurgators, a fair and impartial trial could not be had in said county. The means of knowledge of his compurgators being properly challenged by the state in a traverse of the motion, in which it was averred also that a jury unprejudiced could easily be obtained in said county, the court heard evidence and refused the application. On the issue thus joined each side brought forward 11 witnesses, and, in order that the correctness of our view may appear, we set out briefly the testimony of the witnesses for appellant:

Mr. Cowan, on direct examination, doubted if a fair jury could be obtained in this case, but on cross-examination said he thought by following the legal methods it could be gotten. Tom Holder said he based his opinion that it would be difficult to get a fair jury on what he had heard around the town of Mt. Vernon. Asked as to a number of communities in the county outside of Mt. Vernon, he said he knew nothing of the sentiment of such parts of the county toward appellant. Tinker said he "didn't hardly know whether appellant could get a fair trial in the county," but that a jury might be gotten away from Mt. Vernon which would give him a fair trial. Carson said he could not recall any place where he had heard appellant discussed except in Mt. Vernon. He said he had lost confidence in the jury system, but knew of no better way to conduct trials. He testified that he had heard appellant discussed "a good deal," but further said that:

"You could pick plenty of men in this county who would make fair jurors; * * * the greater per cent. of the jurors, if they were asked, would say that they held prejudice, and would thereby disqualify themselves."

Rees said:

"I can't say that I don't believe defendant can't get a fair trial in Franklin county; I guess there are lots of good men in Franklin county that have never heard of Thurman Davis."

C. T. Holder said he had heard appellant discussed in his neighborhood, and a little in Mt. Vernon, but could have no opinion as to how people felt anywhere in the county except in the community in which he lived. Burns said he could not say appellant could not get a fair trial in the county, and on redirect examination said he thought he could get that character of trial. Stephenson said he thought by asking the proper questions it would be easy enough to get a jury who would give appellant a fair trial. Ezzell said he was on a jury which had tried appellant in a liquor case about a year before, and had given him a suspended sentence; that he knew of no prejudice against appellant. Liles was also on the jury just mentioned, and believed appellant could get a fair and impartial trial in Franklin county. McBrayer was also on said jury, and said it seems to him appellant ought to be able to get a fair trial in the county. The state put 11 witnesses on the stand, who disclosed extensive acquaintance in the county, all of whom averred their belief that appellant could get a fair and impartial trial in the county. We entertain no doubt as to the correctness of the overruling of the application. We have not tried to set out all of the testimony of appellant's witnesses, but have merely reproduced such part of their statements as manifests the fact that by them appellant did not establish the existence of prejudice against him. Appellant had been tried in a liquor case, as above mentioned, convicted, and given a suspended sentence, and the judge at the time criticized the jurors for such suspension, but this does not seem to us to be very strong testimony establishing prejudice against appellant. It seems also that he had been discussed to some extent in connection with other criminal matters, the kind and character of none of which are detailed. Some of the witnesses said they thought there was prejudice against him, but that it was not such as would invade the jury box. Some thought otherwise. If appellant had ever been convicted or legally charged with other crimes or offenses than the liquor case mentioned, we fail to find it in testimony.

The state relied chiefly for conviction on accomplice witnesses Moore and Rozier, who testified that they were picking cotton for appellant; that he was paying them a dollar a hundred for picking, and that he proposed, in substance, to pay them the same amount for all cotton they would steal for him, and that, so purposing, on the night in question they got in appellant's car with him, and hailed forth questing for cotton which might be purloined; that they found none in the first field visited by the party, but a little later went to Mr. Irby's field, and appellant told them to go and see if there was any there, and that they went and found the pen in question, and came back and told him about it, and he told them to go and get the cotton; that they went back to the pen, removed the plank cover and carried back to appellant, who was waiting at a point some 250 yards from the pen, two sacks of the stolen cotton which they all then carried to appellant's field and mingled it with cotton belonging to him; that appellant then wanted them to go back to Irby's field and get the remainder of the cotton in the pen, but they refused. By several bills of exception, directed at the testimony of each of said witnesses, appellant objects to their testimony that they went to another field searching for cotton before they got to that of Irby's and also that after they had abstracted a part of Mr. Irby's cotton appellant wanted them to go back and get the remainder. We confess ourselves at a loss to understand just how this was not all part of the res gestæ of this transaction. Certainly it was not proof of a separate theft or burglary. If parties conspire to commit a crime, what was said and done in pursuance of said conspiracy while engaged in the criminal enterprise seems always admissible. The object of the conspiracy testified to by the accomplices was to criminally obtain the cotton of appellant's neighbors. The burglary of Mr. Irby's pen was seemingly a necessary incident to the criminal enterprise, and all that was said and done by appellant in the execution of the original purpose would seem to be properly received in testimony. We find nothing in the cases cited in the able brief of appellant from Long v. State, 39 Tex. Cr. R. 537, 47 S. W. 363, to Hunt v. State, 89 Tex. Cr. R. 89, 229 S. W. 873, in any way combating our views here expressed.

When Rozier was offered by the state appellant objected that he was an unpardoned convict. The state then produced a pardon issued to Rozier. Still objecting, appellant called attention to the fact that the judgment of conviction against Rozier was entered at the February, 1921, term of the district court of Franklin county, and that the offered pardon recited therein that Rozier was pardoned for an offense committed at the December, 1921, term of said county, and appellant insisted that this was therefore a pardon for a different offense and conviction from that relied upon as barring the testimony. The objection was overruled, and the bill then taken by appellant is qualified by the statement of the honorable trial judge to the effect that he was the presiding judge at the trial and conviction of Rozier at the February, 1921, term of the district court of Franklin county, and that there was no December, 1921, term of said court. The judge of a court may append to a bill of exceptions matters of which he has judicial knowledge, and such appears to be the nature of the matters stated in this qualification here. So considered, it is clear that the seeming variance in the issuance of the pardon was fully explained, and the witness was properly permitted to testify.

Upon the ground that there was not sufficient corroboration of the accomplice witnesses, appellant sought an instructed verdict, the refusal of which is complained of in bill of exceptions No. 7. With reference to corroborating testimony, we observe that the sheriff testified that on the morning after the alleged burglary he went out to the Irby place and observed men's tracks leading from the road to the pen where the Irby cotton had been stolen, which was about 150 or 200 yards west of the road; that he could see car tracks where the car had been driven about 100 yards past the pen and apparently stopped; that at the point where witness thought the car had stopped in the road were tracks of human beings, some of the...