Easterwood v. State

• Citation: 31 S.W. 294
• Parties: EASTERWOOD v. STATE.
• Decision Date: 27 April 1895
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

31 S.W. 294

EASTERWOOD v. STATE.

Court of Criminal Appeals of Texas.

April 27, 1895.

Appeal from district court, Taylor county; T. H. Conner, Judge.

Elzy Easterwood was convicted of murder in the second degree, and appeals. Affirmed.

Cockrell, Cockrell & Tittell, for appellant. Mann Trice, Asst. Atty. Gen., for the State.

DAVIDSON, J.

Appellant was allotted 20 years in the penitentiary under a conviction of murder in the second degree. His application for a continuance was on account of the absence of W. H. Kendrick and wife, by whom he expected to prove that he was at home, about a quarter of a mile distant from the scene of the shooting, at the time deceased was shot. Quite a number of witnesses testified to this alibi, and several were present, under the rule, for the purpose of testifying to the same fact, but were not introduced by him. Mrs. Kendrick appeared during the trial, and testified. Those who testified to the alibi also swore the witnesses who were under rule were with them, and the evidence for defendant shows they were cognizant of the facts upon which the alibi was predicated, if such facts were true, and yet they were not placed upon the stand by appellant to testify. Taking this record in its entirety, and the cogency of the testimony proving guilt, it is not in the least probable that the jury would have believed Kendrick had he been present, and testified as stated in the application. Nor will he be heard to complain in this matter, for it was in his power, and he failed to place on the stand those witnesses who were under rule, and who were willing and anxious to testify in his behalf in regard to his alibi. These witnesses were his near relatives, and warm, close friends, and were brought to court by him for the purpose of proving an alibi. It was his duty to have used all of the available testimony at his command before asking a new trial because of the absence of Kendrick. Willson, Cr. St. § 2186, for collated authorities.

It was not error to overrule appellant's challenge for cause to the juror Branch, because he had challenged the juror peremptorily on a former trial of this cause. No prejudice is shown, or sought to be shown, to have existed for this or for any other reason in the mind of the juror as against appellant. The mere fact that he had on a former trial challenged the juror peremptorily constituted no ground or cause for challenge on this trial. Wilson v. State, 3 Tex. App. 64.

Excerpts from the testimony of the deceased taken on the examining trial were excepted to for various reasons, pertaining in the main to matters occurring between deceased on the one side, and appellant, his codefendant, Hamblin, and Bill Barbee on the other, just prior to the homicide, and grew out of the fact and related to the matter of deceased being a witness against Bill Barbee for the theft of Dulaney's cattle. Barbee was a brother-in-law of appellant, and a warm, personal friend of Hamblin, and they were taking great interest in his case. This evidence was admitted on the ground that it showed motives and malice as showing the reason for the killing by the accused parties. Any fact in this connection, which showed or tended to show motives, or to intensify the motive and malice, and which prove the intimate knowledge by deceased of the facts which would prove Barbee's guilt and knowledge on the part of the accused that the deceased knew and would testify to such facts, would be admissible; and the nearer such facts known to the deceased would connect Barbee with the theft of the cattle, the greater would be the motive on the part of Barbee and his friends, for the murder of deceased. Under this record, this evidence was clearly admissible, although some of the details of the extrinsic crime were mentioned by deceased. This is true because it would render more cogent against Barbee that deceased was a dangerous witness against him for said cattle theft. The theory of the state was that Hamblin killed deceased because he was a witness against Barbee in the theft case, and that appellant was acting with him in the murder. Now, if deceased was informed of facts tending to show the guilt of Barbee, and intended to relate them to the court and jury upon the trial of Barbee, it was of the highest importance to Barbee and friends to prevent him from so doing; and the more cogent his testimony, Barbee and his friends, Hamblin and appellant, being informed thereof, the greater and more powerful the motive for the killing.

A bill of exceptions discloses that defendant proved by L. J. Easterwood that after John Baker, the deceased, gave in his evidence at the examining trial in this case, witness and one Boyett were sitting up with him one night, either the night he died or the night before; that said Baker, in answer to questions propounded by witness to him (no one being present except witness, Boyett, and said Baker), expressed doubts as to his being positive that defendant was one of the persons who assaulted him; whereupon counsel for the state asked witness if he was not present on a former occasion, and after said examining trial, when Mrs. James Baker, John Baker, Miss Lucy Easterwood, witness' cousin, were present, and Miss Lucy Easterwood said to John Baker, "You are not positive, are you, that Elzy was one of the parties who assaulted you?" and John Baker replied, "Yes, it was sure Elzy, and no one else;" that Miss Lucy Easterwood thereupon threw her hands over her face, and turned away, with the exclamation, "Oh, my God!" all of which witness denied having seen or heard. Thereupon, in rebuttal, the court permitted the state, over defendant's objection, to prove by Mrs. James Baker that after said examining trial, on one occasion, she and John Baker, L. J. Easterwood, and Miss Lucy Easterwood were present, when the above indicated matters did occur, and as stated in the question put to said L. J. Easterwood, and that he "was right near, and saw and heard all." Objections to this evidence were urged, "because the matters inquired about were not proper matters for impeachment, as no statement made by L. J. Easterwood was contradicted, and the matters inquired about were collateral and immaterial." "In the same connection, Mrs. James Baker testified that she was almost constantly with deceased after he was wounded, and that he at all times said Elzy Easterwood was one of the parties who assaulted him, and at no time expressed any doubts about it." Defendant objected, because this was hearsay, and no part of any conversation or act of said Baker heard by defendant. The defense having attempted to impeach the testimony of deceased in this manner, namely, by showing contradictory statements, the state had the right to sustain deceased by proving he had always made the same statement as that sworn to by him. But it may be contended that the state could not impeach L. J. Easterwood in this manner, because he had not referred in his testimony to the transaction or conversation related by Mrs. Baker. This may be true, but on his cross-examination he stated: "I never at any time heard John Baker say he was positive that Elzy was one of the parties that hurt him. I saw him several times after he was shot." This evidence was injurious to the state, and, conceding the state had made the witness her...