English v. State

• Decision Date: 05 March 1919
• Docket Number: (No. 5138.)
• Parties: ENGLISH v. STATE.
• Court: Texas Court of Criminal Appeals

Page 632

213 S.W. 632

ENGLISH v. STATE.

(No. 5138.)

Court of Criminal Appeals of Texas.

March 5, 1919.

On Motion for Rehearing, June 18, 1919.

Appeal from District Court, Hunt County; Thos. W. Thompson, Special Judge.

Bill English was convicted of manslaughter, and appeals. Reversed and remanded.

C. E. Sheppard and J. A. Dial, both of Sulphur Springs, and O. C. Mulkey, of Commerce, for appellant.

Clark & Sweeton, of Greenville, and E. A. Berry, Asst. Atty. Gen., for the State.

MORROW, J.

Appellant was charged with murder and convicted of manslaughter.

The district court of Hopkins county in which the indictment was filed entered of his own motion an order changing the venue of the trial to the adjoining county of Hunt. The appellant filed a motion to set aside the order, in which motion he sought to make an issue of fact as to the grounds for the court's contention that a trial alike fair and impartial to the accused and the state could not be had. The statute relating to change of venue contains provisions prescribing means for either the state or the accused to obtain a change of venue, and there is a provision, article 616 of the Code of Crim. Proc., making special provision for changing venue in cases where unsuccessful efforts have been made to obtain a jury. These provisions, however, are not limitations upon the power vested in the trial court to change the venue on its own motion when the judge shall be satisfied that a trial alike fair and impartial to the state and the accused cannot be had. Bohannon v. State, 14 Tex. App. 271. The order of the judge in the instant case was duly entered setting out the reasons which satisfied him that the venue should be changed, and we think there was no error in his refusing to hear evidence proffered by the appellant challenging the correctness of his conclusion. Augustine v. State, 41 Tex. Cr. R. 59, 52 S. W. 77, 96 Am. St. Rep. 765. The appellant, before the order changing the venue was entered, made an application for a continuance and in his order granting the change of venue the court stated that the order continuing was vacated. Any irregularity in the failure of the court to make a formal and separate order setting aside the order continuing the case was, under the circumstances, harmless. Hamilton v. State, 40 Tex. Cr. R. 464, 51 S. W. 217; Bankston v. State, 80 Tex. Cr. R. 629, 192 S. W. 1064.

The order changing the venue recited that the appellant had failed to plead to the indictment and that the court had entered a plea of not guilty. A motion challenging the correctness of this statement was filed, and, as we understand the qualification to the bill preserving the motion, the court accedes to the correctness of appellant's position, at least to the extent of stating that the plea of not guilty was entered without calling attention of appellant's attorneys thereto. Inasmuch as the appellant was regularly arraigned in the district court of Hunt county, failure to arraign him in Hopkins county is an irregularily which, according to the decisions of this court, deprive him of no substantial right and is not such as to require a reversal. Ex parte Cox, 12 Tex. App. 665; Caldwell v. State, 41 Tex. 86. See, also, Goode v. State, 57 Tex. Cr. R. 220, 123 S. W. 597.

There was no error in the reproduction of the testimony of the witness Bridges given at the examining trial since which he had died, it appearing that appellant was present and that the witness was cross-examined in his interest. Young v. State, 199 S. W. 479; White v. State, 202 S. W. 737, and cases cited.

The appellant and his brother, Henry English, were participants in a game of basketball with a team from a neighboring village; the deceased and his mother, and as we gather from the evidence, his two brothers, were spectators. During the game deceased was a partisan of the rival club and made a remark favoring it, which, according to some of the evidence, was responded to by the appellant's brother, Henry English, with an insulting epithet to deceased. Appellant and his brother had gone to the village together and had changed clothes at the home of a relative, and after the game they repaired to the same place to rechange their clothes, and while there appellant armed himself with a pistol. His brother was also armed with a pistol, but the evidence does not disclose when or where he obtained it. There was evidence from which the jury could have inferred that appellant knew that his brother was armed, and he introduced testimony to the effect that before leaving the ball ground he was cautioned to be careful as the deceased had gone for a gun. He and his brother went to the village, and on reaching it the deceased and his two brothers were there and the deceased called upon appellant's brother to come into the street and fight him. The evidence is conflicting as to the details of just what followed, but a struggle ensued in which appellant's brother and one of the brothers of deceased took part, during which or immediately antecedent to which Henry English, appellant's brother, attempted to draw his pistol and in the struggle the pistol fired. Immediately thereafter the appellant fired the shots which resulted in the homicide. Appellant claimed that during the struggle between his brother and others, and while he was in a few steps of him, the deceased approached in the general direction of himself and the struggle with his brother; that he was looking at him and looking angry and had his hand in his right-hand pocket; and that he (appellant) told the deceased to stop, which he failed to do, and when he reached a point within two or three steps of him appellant fired a shot hitting deceased in the breast. Deceased turned and appellant shot him in the back. He said:

"At that time it appeared to me that six or seven people had hold of Henry, and I believed he was in danger of losing his life."

Appellant's testimony relating to the position of the parties at the immediate time the shots were fired was controverted by several witnesses introduced by the state who claimed that none of the shots were fired while the deceased was facing appellant, but all the shots were fired while his back was turned. Appellant, however, was corroborated by some witnesses. There was testimony that, at the time the deceased invited appellant's brother to fight, he said to him in appellant's presence that he had to take back the epithet he had called him. Appellant in his testimony declared that he knew that Henry had called the deceased a son of a bitch on the ball ground.

There was evidence from the physician who examined the body of deceased, and from other witnesses, that there were two pistol wounds in the back, one in the breast, and that one bullet was under the skin on the front of the body. The physician, after testifying to the description of the wounds, stating that those in the back were small and round and that the one in the breast was larger and irregular, and after detailing his experience of about three years in the practice, and his information gained from study of the medical authorities on gun shot wounds, gave his opinion that the entrance of those on deceased was in his back. The objection founded on the fact that the physician disclosed that he had no practical experience with such wounds was, under the authorities, not well taken. A witness may testify as an expert though his knowledge is derived alone from study of books. Enc. Ev. vol. 5, p. 534; Cyc. vol. 17, p. 40. This rule has been applied to gunshot wounds (People v. Phelan. 123 Cal. 551, 56 Pac. 424), and has received the sanction of this court (Rice v. State, 49 Tex. Cr. R. 569, 94 S. W. 1029).

The remarks made by the deceased and appellant's brother at the ball game were properly received. Appellant's proximity to the parties and the surrounding circumstances were, we think, sufficient to justify the inference that he heard the remarks. He admitted that he knew his brother had applied an insulting epithet to deceased, at the time he armed himself, and followed or accompanied his brother to the place where the homicide occurred; and went there, he claimed, because he desired to protect his brother from injury by deceased. There was evidence justifying the conclusion that he heard deceased demand a retraction of the insult of his brother immediately before the difficulty. The transaction at the ball game induced the difficulty in which the homicide took place, and, even if appellant did not hear all that was said at the ball game, the evidence is sufficient to show that he adopted his brother's quarrel and acted with him in pressing it. This evidence was provable against the appellant on the doctrine of antecedent quarrels (Branch's An. P. C. § 1881), and upon the theory of conspiracy (Branch's An. P. C. § 693).

The appellant's witness Munger gave in his behalf important testimony. The state's counsel sought to lay a predicate to impeach him, and for this purpose asked him if it was not a fact that when he first went before the grand jury he testified that the deceased was approaching appellant and within two or three feet of him when appellant fired striking him in the breast. To this question the witness replied that he did not remember whether he gave that testimony or not. The question was repeated by counsel, and the trial judge told the witness he must answer the question to which the witness replied that he did not remember. The court then asked if he remembered going before the grand jury, and he said he did, and the court again told him he must answer the question, and he said he did not remember. The state's counsel then asked him if he did not remember going before the grand jury the second time and asking them to let him take back what he had sworn to the first time, to which he replied: "I remember going back, but I don't remember all the conversation." The court, then referring to the former question,...