Douglas v. State

• Decision Date: 26 January 1910
• Citation: Douglas v. State, 124 S.W. 933, 58 Tex.Cr.R. 122 (Tex. Crim. App. 1910)
• Parties: DOUGLAS v. STATE.
• Court: Texas Court of Criminal Appeals

124 S.W. 933

DOUGLAS v. STATE.

Court of Criminal Appeals of Texas.

January 26, 1910.

Appeal from District Court, Erath County; W. J. Oxford, Judge.

Ben Douglas was convicted of murder, and he appeals. Affirmed.

L. N. Frank and Robert L. Thompson, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.

RAMSEY, J.

Appellant was convicted on a charge of murder in the district court of Erath county on July 12, 1909, the jury fixing the grade of murder as murder in the second degree and assessing his punishment at confinement in the penitentiary for a period of 41 years.

The appeal in the case raises some very interesting and novel questions; and, in view of the penalty as well as character of the questions raised in the record, we shall treat the case at more length, perhaps, than the difficulty of the questions presented by the record might ordinarily seem to require. All the parties were negroes. The evidence shows that one Vina Phillips, who was the wife of deceased at the time he was killed, had for some years theretofore been the wife of appellant. The deceased, Jim Phillips, had also been married before. The record tends to show that about January 31, 1909, Vina Phillips secured in the district court of Erath county a divorce from appellant, and that some two or three days after that the deceased, Jim Phillips, secured a divorce from his then wife, and that Jim Phillips and Vina a short time thereafter married, and for some little time before the difficulty, with the knowledge of appellant, were living together as husband and wife, and seem in good faith to have occupied that relation, and that for some considerable time appellant not only manifested no resentment, or expressed any disappointment over their relations, but his attitude was one of friendliness. The testimony of the state is to the effect, in substance, that on the day of the homicide, and late in the afternoon, while Phillips and his wife were returning from the house of one Lee Means, appellant, armed with a pistol, without excuse or provocation, shot Phillips, inflicting a mortal wound upon him, continuing to fire upon him until he had fired some four or five shots, pursued deceased into the bushes, and repeatedly stabbed him with a knife, during all of which time deceased was calling for help, imploring appellant not to kill him, and saying to him that he could have the woman. Appellant presents by his testimony a case of self-defense which, however, as we view the record, was neither satisfactory nor reasonable. This matter, as well as all the issues in the case, was by the court submitted to the jury. That this charge, neither in matters contained in it nor omitted therefrom, is not in any respect the subject of complaint is the strongest demonstration of its accuracy. There is no complaint that the court misdirected the jury in any matter, or that he failed to submit any issue to the jury raised in the evidence. All the questions presented relate to other matters, which we will now examine.

1. When the witness Vina Phillips was sworn, and her testimony was offered, appellant objected to her testifying in the case, and urged that she was disqualified by law from so doing. The bill of exceptions touching this matter thereupon proceeds as follows: "Defendant by his counsel at the time objected to any and all testimony that might be given by said witness in the case, and showed to the court that at the time of the alleged killing of deceased, Jim Phillips, said witness Vina was in law and in fact the wife of defendant, Ben Douglas, and that said witness is now in law and in fact the wife of defendant, Ben Douglas, and that therefore said witness is incompetent to testify against the defendant herein. Defendant showed to the court, on said objection, that the alleged judgment and decree of divorce between the said Vina and defendant was and is a nullity and void, and of no force or effect in law, in this: That in the proceedings in which said alleged divorce judgment was granted by this court the petition of the said Vina Douglas was filed in this court on the 31st day of January, 1909, and that no citation was ever issued or served on the defendant therein, the said Ben Douglas, but that a waiver of citation, signed by said defendant, Ben Douglas, at least three days prior to said 31st day of January, 1909, was filed in said cause on said 31st day of January, 1909, the same being executed by the defendant at least three days before the filing of said petition and the judgment of divorce thereon, and the defendant says that no judgment of divorce could have been rendered thereon having any force or effect in law, and that same was null and void, and that, therefore, the witness Vina is incompetent in law to testify against the defendant in this case; she being his wife at this time." This bill is allowed, with the following qualification: "That the court does not certify to the truth of the grounds of objection, but only that they were urged." It has been held by this court, and seems to be the settled law, that the qualification or explanation of the court appended to a bill of exceptions will control the recitals in the bill in so far as such explanation modifies same. Hardy v. State, 31 Tex. Cr. R. 289, 20 S. W. 561. And that where counsel accepts a bill of exceptions with the qualification of the judge indorsed thereon, and files the same, he estops himself from claiming it to be unfair and injurious to his case. Jones v. State, 33 Tex. Cr. R. 7, 23 S. W. 793. It is also the settled rule of practice in this state that the mere statement of a ground of objection in the bill is not the certificate of the judge that the fact stated is true. Fuller v. State, 50 Tex. Cr. R. 14, 95 S. W. 541; Bigham v. State, 36 Tex. Cr. R. 453, 37 S. W. 753; Hamlin v. State, 39 Tex. Cr. R. 579, 47 S. W. 656; McKinney v. State, 41 Tex. Cr. R. 434, 55 S. W. 341; Burt v. State, 38 Tex. Cr. R. 397, 40 S. W. 1000, 43 S. W. 344, 39 L. R. A. 305, 330; and Benson v. State, 69 S. W. 165. It seems, also, to be the settled rule of law in this state that a bill of exceptions cannot be aided either by statements in reply to a motion for new trial, or by the statement of facts. McGlasson v. State, 38 Tex. Cr. R. 351, 43 S. W. 93; Howerton v. State, 43 S. W. 1018; Cline v. State, 34 Tex. Cr. R. 347, 30 S. W. 801; Railroad v. Gay, 88 Tex. 111, 30 S. W. 543; Buchanan v. State, 24 Tex. App. 195, 5 S. W. 847; Smith v. State, 4 Tex. App. 627; Hamlin v. State, 39 Tex. Cr. R. 601, 47 S. W. 656; Edens v. State, 41 Tex. Cr. R. 522, 55 S. W. 815; McAnally v. State, 57 S. W. 833; Price v. State, 43 S. W. 97; Carter v. State, 40 Tex. Cr. R. 229, 47 S. W. 979, 49 S. W. 74, 619; Ogle v. State, 58 S. W. 1004; Diaz v. State, 53 S. W. 633; Hopkins v. State, 53 S. W. 621; Brown v. State, 43 Tex. Cr. R. 293, 65 S. W. 529; Schweir v. State, 50 Tex. Cr. R. 119, 94 S. W. 1049. And further that the bill of exceptions controls even the statement of facts. Briscoe v. State, 27 Tex. App. 193, 11 S. W. 113; Ezzell v. State, 29 Tex. App. 521, 16 S. W. 782; Arcia v. State, 28 Tex. App. 198, 12 S. W. 599. However, if the matter could be considered, and the objections urged as a ground of disqualification of the witness could be assumed to be true, still we think the testimony shows that the objections urged are not tenable. By the judgment of the district court of Erath county Vina Phillips and appellant had theretofore, by decree duly entered, been divorced. She and deceased had thereafter been married, and were recognized and treated by appellant and by all the world as husband and wife. This in a sense fixed their status. To declare such relations to be adulterous, and the divorce theretofore obtained void in a collateral proceeding such as this, is not to be done lightly or inconsiderately, and can only be so treated if under the well-settled principles of law no other judgment or conclusion is permitted. It is the settled law of this state that the judgment of a court of competent jurisdiction cannot be collaterally attacked, unless the record affirmatively shows lack of jurisdiction (Williams v. Haynes, 77 Tex. 284, 13 S. W. 1029, 19 Am. St. Rep. 752), and that a recital in a judgment of service of citation on a defendant involves absolute verity in a collateral proceeding. Finch v. Edmonson, 9 Tex. 512; Mikeska v. Blum, 63 Tex. 46; Davis v. Robinson, 70 Tex. 398, 7 S. W. 749. Taken most strongly in favor of appellant, it appears from the matters stated in the bill that the waiver of citation was signed by him some three days prior to the date when the suit for divorce was filed. It is not made to appear when this waiver of citation was filed into court. We must and should assume that the court rendering the judgment would have made inquiry and satisfied himself that service on defendant had been obtained by the means provided by law, or that proper waiver had been made; and, in the absence of anything to the contrary, where such fact is not in terms negatived, we would assume, in aid of the jurisdiction of the court below, that if signed three days before the filing of the suit, the waiver of citation was filed by him, or under his authority, after the suit for divorce had been instituted.

The cases cited by appellant are not in point. The case of McAnelly v. Ward, 72 Tex. 342, 12 S. W. 206, was a case where the regularity of the service was a matter of inquiry on appeal from a judgment theretofore rendered; and, of course, such being the case, the court was required to take cognizance of any irregularity in the matter of obtaining service, or touching the filing of a waiver irregularly and not in accordance with the law. Nor, as we...