Earles v. State

• Decision Date: 08 February 1905
• Citation: 85 S.W. 1
• Parties: EARLES v. STATE.
• Court: Texas Court of Criminal Appeals

Page 1

85 S.W. 1

EARLES v. STATE.

Court of Criminal Appeals of Texas.

February 8, 1905.

Appeal from District Court, Navarro County; L. B. Cobb, Judge.

Walter Earles was convicted of murder in the second degree, and he appeals. Reversed.

J. T. Williams, E. E. Gore, and Dexter Hamilton, for appellant. Howard Martin, Asst. Atty. Gen., 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 20 years; hence this appeal.

Appellant filed a motion to change the venue, which was contested. The court heard evidence pro and con, and overruled the motion. Appellant assigns this action of the court as error. We have examined the record carefully along this line, and find it, as follows: Six witnesses testified outright to such a state of prejudice in Navarro county as that appellant could not expect to get a fair and impartial trial. Five of these lived in Corsicana, but stated they were more or less familiar with the people of the county. One lived at Angus. Thirteen testified to a condition of things which indicated some prejudice in the county against appellant, but all of them testified they believed he could get a fair trial in the county. Six of these lived in Corsicana, one lived at Blooming Grove, two lived at Frost, one at Richland, two at Re, one at Angus, and one at King Willow. On the other hand, fourteen testified that no prejudice existed in Navarro county against appellant. One of these lived at Corsicana (he was chief of police), two at Spring Hill, two at Rice, two at Chatfield, one at Kendall, one at Richland, one at Blooming Grove, one at Frost, one at Drane, and two at Kerens. We are not informed by the record that the places enumerated constituted all of the towns and villages in the county. It will be seen from this statement that in the points outside of Corsicana, as testified to by the citizens of the various places, there is very little, if any, prejudice against appellant, and we do not believe the court erred in refusing to grant a change of venue. Renfro v. State (Tex. Cr. App.) 56 S. W. 1013; Red v. State (Tex. Cr. App.) 53 S. W. 619; Connell v. State, 75 S. W. 512, 8 Tex. Ct. Rep. 127; Reeves v. State, 83 S. W. 803, 11 Tex. Ct. Rep. 747.

On the trial appellant objected to the state's witness Maggie Batson testifying that in Wortham, Freestone county, Tex., 10 days before deceased was killed by defendant, while she was living at defendant's house, she wanted to go to Jap Stedman's, about three miles distant; that defendant objected to witness going to Stedman's, but was willing for her to go anywhere else except Stedman's; that, while witness and defendant were discussing it, witness told defendant, if he did not let her go to Stedman's, she would have him arrested, remarking at the time that there were officers to protect her, and, if he did not let her go, she would have him arrested; that, in reply, defendant said he would kill any officer that entered his yard to arrest him. This was objected to on the ground that it was immaterial and irrelevant, and not a threat against deceased or any officer in Corsicana; that the threat was conditional that if any officer entered his yard to arrest him for refusing to let Maggie Batson go to Stedman's; that the threat was conditional, to wit, to kill any officer who entered his yard to arrest him for refusing to let Maggie Batson go to Stedman's; that it was 10 days before the killing of Maddux, and in another county, and had no reference whatever to deceased, and its only purpose would be to prejudice the jury against defendant. The court approves this bill with this statement: "Stedman was an uncle of Maggie. The state's theory of the case was that defendant killed Maddux to escape from an apprehended prosecution growing out of his relations with her, and this evidence was admitted, and the jury verbally instructed at the time to that effect—that it could be considered as showing the relation and attitude of defendant towards Maggie." We presume, in this last expression, that the court did not intend to state he instructed the jury in his written charge, but merely he told them verbally how to consider said testimony. In our view, if the testimony was admissible at all, it was for another purpose than that stated by the court—that is, to show a threat or a malignant feeling on the part of appellant toward any officer attempting to arrest him—because we do not believe it was material or relevant to show the relation or attitude of defendant toward Maggie Batson. We do not understand the difficulty to have occurred about her, or that she was interested in it in such manner as that appellant's attitude toward her could be proven. The homicide, as we understand, occurred in an attempt to arrest and hold appellant in custody by deceased, and we are not even informed by the testimony that there was any charge against appellant on account of said Maggie Batson. Clearly, the testimony was not admissible on the theory as stated by the court. Nor do we believe it was admissible on the proposition above referred to. The threat made was conditional, and had no reference whatever to the transaction in which appellant killed deceased. We do not believe that the threat made under the circumstances, and directed to another transaction entirely, indicated such malignity towards officers, or such a determination not to be arrested on any charge by officers, as authorized its admission in this case. It would seem that the judge, in admitting the testimony on another ground, took this view of it.

The state was permitted to prove by Tully Dean that on the day defendant killed Maddux, while witness was riding with defendant in a laundry wagon in Corsicana, defendant told him that everything had been settled down at Wortham; he had paid a fine for carrying a pistol, and the other two cases had been dismissed, and everything was settled, and he would die before he would be arrested again. Defendant objected to this testimony on the ground that the conversation was concerning some trouble between defendant and Jap Stedman about 10 days prior to the killing of Maddux; that the trouble was about Maggie Batson leaving defendant's house and going to Stedman's house, and was in no way against deceased, or a threat at all. The court explains this bill as follows: "Witness had testified that defendant told him of his trouble with Stedman at Wortham about Maggie, his being arrested for the same, and that he was then in Corsicana to get her and carry her away with him, and that he would get her or die. The state's view of the case was that defendant killed Maddux because his relations with the girl had been criminal, and he feared prosecution therefor; and it was a fact known to court, counsel, and defendant that he had been indicted for rape in Freestone county at September court, but that fact was not admitted in evidence. I'm not sure it was right to exclude it, but all the evidence about his statements regarding Maggie and about his intention to resist arrest were limited by oral or written instruction, so as that the jury could not regard them as threats against the deceased, but only as indications of his feelings and purposes towards the girl." We do not believe the learned judge was authorized to take judicial cognizance of the matters herein stated by him. He could only refer to such things as were in evidence. What we said in regard to the preceding bill is equally applicable to the admission of this testimony. We do not believe it was relevant to show, under the circumstances of this case, appellant's feelings and purposes toward Maggie Batson. Nor do we believe the testimony was admissible as a threat against deceased, or as a threat which may have embraced...