Early v. State

• Decision Date: 24 April 1907
• Citation: 103 S.W. 868
• Court: Texas Court of Criminal Appeals
• Parties: EARLY v. STATE.

103 S.W. 868

EARLY v. STATE.

Court of Criminal Appeals of Texas.

April 24, 1907.

On Rehearing, June 19, 1907.

Appeal from District Court, Hill County; W. C. Wear, Judge.

Jack Early was convicted of murder in the second degree, and he appeals. Reversed and remanded.

V. S. Shurtleff and Morrow & Smithdeal, for appellant. F. J. McCord, Asst. Atty. Gen., J. E. Clarke, H. G. Hart, Walter Collins, and B. Y. Cummings, for the State.

HENDERSON, J.

Appellant was convicted of murder in the second degree, and his punishment assessed at 12 years' confinement in the penitentiary, and prosecutes this appeal.

This is the second appeal of this case; it having been previously reversed and remanded at the fall term of this court in 1906. See 97 S. W. 82. The facts developed on this trial are substantially the same as those on the former, and we refer to the statement of facts contained in that opinion. Briefly summarized, the deceased was a policeman in the town of Mt. Calm, in Hill county, and appellant and his companion, Harmie Horn, who were related to each other, were on the way from a livery stable in said town to the boarding place of appellant some time about midnight; both being under the influence of liquor. Horn, it seems, was more under its influence than appellant. That the deceased had been out in the country that night and returned to the stable with the team shortly after appellant and his companion left the stable. As soon as deceased turned his team in, he left, going in the same direction that appellant and his companion had gone. It appears that after overtaking the parties he attempted to arrest Horn for drunkenness, when a fight ensued, in which the deceased lost his life. The testimony tends to show that Horn used a knife, and deceased had a whip handle which he used as a club, and also a pistol. There is some evidence that, besides the wounds inflicted on deceased with a knife, a contused wound was inflicted on deceased's head, and the state's theory is that this may have been done by appellant with a pistol. There is also some evidence to the effect that a grudge existed between deceased and appellant, beginning some weeks prior to the homicide. In this connection, there is also evidence that the parties had made friends after the former altercation. This is a sufficient statement in order to discuss the assignments of error.

Appellant made a motion for continuance, which the court overruled, and this is assigned as error. The application was based on the absence of the witnesses Hamp James and George Robertson. The court, in approving the bill of exceptions, as to the witness James, states that, as to him: "It was developed by sworn testimony during the progress of the trial that he had left Hill county two or three months before the case was called for trial, and that it was generally known in the community of Mt. Calm that he had gone to Oklahoma Territory, and it was so known at the time he left, and there was no effort made to procure his testimony, and consequently no diligence was used." In view of this explanation, it would seem that there was a lack of diligence to get the testimony of this witness. However, it is said that this witness would testify that Harmie Horn was not drunk. It does not occur to us that the testimony of this witness, if he would so swear, would have had any material influence as to the verdict of the jury, in the light of all the other evidence in the case. As to the witness George Robertson, it does not seem that diligence was used for him. Appellant seeks, however, to excuse his lack of diligence by saying that he did not discover the testimony of said witness before he had process issued for him. The testimony of this witness would be merely contradictory evidence; that is, testimony to impeach the state's witness Will Harriss; that is, he proposed to prove a different statement made by the state's witness Harriss a short time after the homicide, which he states said witness would testify to on the trial. If it be conceded that the testimony of said witness would contradict the testimony of the state's witness Harriss, a new trial will not ordinarily be granted on account of impeaching testimony. We do not think the court erred in overruling the motion for continuance, or in overruling the motion for a new trial based on overruling the motion for continuance.

A bill of exceptions was reserved to the action of the court in the selection of the jury. A number of jurors answered that they had heard of the case against appellant and his codefendant, Harmie Horn; that they had heard of the previous trials of said parties, and of their conviction and term of punishment, but that same would not influence them in finding a verdict; that, among the jurors who sat in the trial of the case, were J. B. Orenbaum, O. Bratcher, A. M. Johnson, J. C. Gunn, J. T. Mitchell, and W. E. Hayes, who knew of the former conviction of appellant, and that appellant had in the meantime, before the taking of these jurors, exhausted his peremptory challenges, and the court overruled his challenge for cause on the ground assigned, and he was compelled to take said named jurors. In this action of the court there was no error. There is no contention, as we understand, that either of said jurors had any opinion formed as to the guilt or innocence of appellant caused from having heard of the previous trial and conviction, and the mere fact that they had heard of same did not disqualify them from trying this case.

Appellant complains at the action of the court in refusing to permit defendant to prove, by Charlie Shaw, that some time prior to the homicide, and after the altercation in Shaw's barber shop between appellant and deceased, deceased stated to the witness Shaw that "it was a good thing he (Shaw) interfered in the difficulty when he did, because if he had not deceased would have knocked Early down with his pistol." In order to sustain his contention, appellant refers us to a number of cases, but it does not occur to us that any of them sustain his contention. This was not a threat. It was a mere relation connected with a previous altercation of what the deceased said he would have done after the difficulty, if he had not been interfered with; nor was it a part of the res gestæ of this difficulty. This difficulty did not grow out of that difficulty, nor, in our opinion, was the character of statement attributed to deceased of that kind which would tend to show who was the actual aggressor in the subsequent difficulty. If the altercation at the barber shop had been a part of this difficulty, or if it had been even on the same day, the particulars of that former difficulty, or what was said afterwards, might serve to shed some light upon the homicide. In Everett v. State, 30 Tex. App. 682, 18 S. W. 674, Nelson v. State (Tex. Cr. App.) 58 S. W. 107, and Poole v. State, 45 Tex. Cr. R. 348, 76 S. W. 565, referred to by counsel, the question did not come up at all as here presented. In all of said cases the testimony admitted was part of the res gestæ, and showed appellant's state of mind towards deceased, and same was held admissible. In Poole's Case, the question was as to the state of mind and apprehension of appellant on the day of the difficulty and a very few minutes prior thereto, and what Poole said when he was informed that deceased was seeking him, or was at a certain place waiting for him, was held admissible as showing Poole's state of mind and his desire to avoid a difficulty with the deceased. There was no such question here. We would further add that the testimony offered was no part of the details of the former difficulty. As heretofore stated, it was not a threat, but merely a statement of deceased of what he might have done in the difficulty, if he had not been interfered with. We fail to see how this testimony would have served the purpose of shedding any light on the subsequent difficulty in which the homicide occurred.

Appellant contends that the court committed an error in allowing the state to show that when appellant came back to the livery stable he left the stable in a buggy with a couple of negro women, and was gone some half an hour. The contention is that this sort of evidence was inadmissible and went to the character of appellant. We think it was permissible to show the movements of appellant during that entire night, not only his visit to Axtell to get whisky, and his drinking whisky, and his return to Mt. Calm, but what he did after he arrived here. If his conduct and movements brought him in contact with circumstances calculated to bring him into disrepute before the jury, that was his own fault. It was part of the res gestæ, showed appellant's surroundings, and, however, such surroundings might reflect on him, he could not escape his environments, especially of his own choosing; nor could he complain that reference was made as to what he was doing that night, and as to his movements immediately preceding the homicide.

Appellant assigns as error the tenth paragraph of the court's charge, which is as follows: "The instrument or means by which the homicide is committed is to be taken into consideration in judging the intent of the party offending. If the instrument be one not likely to produce death, it is not to be presumed that death was designed, unless from the manner in which it was used such intent evidently appeared." Appellant contends that there is no pretext here that appellant himself slew deceased, but that his companion, Harmie Horn, did the killing; and, if it be conceded that Harmie Horn committed the homicide with a knife, which was a deadly weapon, the effect of the charge was to fasten the act of Harmie Horn, together with the presumption flowing from that act, upon appellant. Evidently, from the character of the wounds and the weapon Horn was shown to have owned, it was a deadly weapon, and the court's charge, if appellant himself had...