Essary v. State

• Decision Date: 27 May 1908
• Citation: 111 S.W. 927
• Parties: ESSARY v. STATE.
• Court: Texas Court of Criminal Appeals

Page 927

111 S.W. 927

ESSARY v. STATE.

Court of Criminal Appeals of Texas.

May 27, 1908.

Appeal from District Court, Webb County; J. F. Mullally, Judge.

J. D. Essary was convicted of murder in the second degree, and he appeals. Reversed and remanded.

A. Winslow, for appellant. F. J. McCord, Asst. Atty Gen., for the State.

RAMSEY, J.

Appellant was indicted in the district court of Webb county for the murder of one Arturo Alexander. On trial he was convicted of murder in the second degree, and his punishment assessed at five years' confinement in the penitentiary. He has appealed to this court for a reversal of said judgment. The case was presented in an able brief by counsel, as well as submitted in an oral argument, in both of which many grounds are advanced why this judgment of conviction should be reversed.

The statement of facts cannot be considered. It is made up wholly of questions and answers, and seems to be a verbatim stenographic report of the evidence, and is not in any respect in compliance with Acts 30th Leg. p. 510, c. 24, § 6, with reference to statements of facts in criminal cases. We held in the case of Hargrave v. State (Tex. Cr. App.) 109 S. W. 163, that under Acts 30th Leg. p. 510, c. 24, § 6, which provides that on appeal in felony cases so much of the stenographer's report shall be inserted in the statement of facts as is necessary to show what the evidence was, provided that such report shall not be in the form of questions and answers, except where the judge shall deem that order of statement of facts necessary, a statement of facts on appeal, which consists entirely of questions and answers, cannot be considered, where there is nothing in the record indicating that the trial judge deemed it necessary to an understanding of the case to so make up such statement of facts. In the absence of the statement of facts, therefore, we are, under rules well settled in this court, precluded from an examination of many questions raised in the record, and particularly precluded from considering the insistence, strongly urged by appellant's counsel, that the conviction is contrary to the law and the evidence.

There are, however, many questions raised by proper bills of exceptions which we deem it necessary to notice. One of the grounds urged for reversal was that the court below had erred in refusing to grant appellant a new trial because of the fact that one of the jurors, Charles Galbraith, had, before he had been taken upon the jury, formed and expressed an opinion in the case antagonistic to the appellant in such manner as to show that he was prejudiced against him. Appellant in his motion for a new trial attached thereto the affidavit of Charles Tennenbaum and Wm. Ryan, both to the effect that they heard said juror, before he was taken upon the jury, say that if he ever got on the jury he would hang the son of a bitch, meaning appellant. This issue was tried before the court below, and the juror was sworn and testified emphatically and unequivocally that he had at no time made such statements to the witnesses or any one else, and that the charges were in all things untrue. We held in the case of Fox v. State (Tex. Cr. App.) 109 S. W. 370, that an issue of this sort was one peculiarly to be determined by the trial court, and that, at least in the absence of obvious error on the part of the court as to the qualification of a juror, his action would not be reviewed by us. In the light of the testimony of Galbraith, considered in connection with the testimony of several witnesses, tending strongly to show the unworthiness of Tennenbaum and Ryan, we do not think the matter is presented in such a way as would justify us in placing our judgment against that of the trial court, or would require us to overrule and set aside his finding and rulings on matters of fact, where he has had opportunity to hear the witnesses in person.

It was insisted, however, in argument by learned counsel for appellant, that if the statement of facts should be stricken out, because made up of questions and answers, then it must follow that the testimony taken by the court below on this issue, which was prepared in the same way, must also be stricken out, and could not be considered by this court, and that the issue would then rest upon appellant's sworn motion, strengthened and buttressed by the affidavits of Tennenbaum and Ryan, and that we would be substantially without discretion in our refusal to accept these statements as true. In the first place, it may well be doubted whether any incident occurring in the presence of the court, the facts of which are preserved in the record, would be included in the provision of the act relating to the statement of facts, as that term is used in the statute above referred to; but, if the view of appellant should prevail, and we were not at liberty to consider this statement, then we could only assume that the court had heard testimony in respect to the matter, and that the evidence was such as to warrant and justify his conclusion adverse to this part of appellant's motion for a new trial.

Another ground of the motion is that the court erred in overruling appellant's challenge to the juror Juan F. Harrera, in this: After he had exhausted all his peremptory challenges, appellant challenged this juror because he was a Mexican, and for the reason, as alleged, that he did not understand the English language sufficiently well to comprehend the proceedings of the court. In approving this bill of exceptions the court does so with the qualification and statement that the juror was examined in the English language at length, and that he answered promptly in correct English, and that as a part of his examination he was required by appellant's counsel to read a passage from the Penal Code, which he read in a manner plainly indicating that he understood it. It was shown that the juror was a native of Laredo, and had worked for years in the office of the tax assessor of Webb county, and stated that he understood the English language well enough to understand the testimony, the arguments of counsel, and the charge of the court. We think, under the facts stated and the court's explanation of this bill of exceptions, that the juror was not subject to the objection urged.

It is urged that the court erred in permitting the state's counsel to ask Juan Cruz Bernal, a witness for the state, a leading question. This matter arose in this way: The district attorney, among other things, asked the witness the following questions, which were answered as follows: "Q. Cruz, you say that when this man said, `Say, who is that?' that he put his hand back here. Explain to the jury why he put his hand back there. A. I do not know why he put his hand there. Q. Where did he put his hand? A. In his waist. Q. Back or front of his waist? A. Back; if it had been front, I would have put my hand in front. Q. How near his hip pocket was it?" To this last question appellant objected, on the ground that the question suggests the answer. This objection was overruled, and the witness permitted to answer the question. His answer was: "I cannot say how near his hip pocket his right hand might have been. He put his hand right back there." We do not think this question was leading. As the record shows, the witness had stated that the party inquired about had put his hand back of his waist. It was the effort of the state's counsel to get the witness to give a more particular statement of the matter, and to locate the place where he put his hand with reference to his hip pocket. This was not a leading question. It did call the attention of the witness to the particular portion of the body of appellant with reference to where he placed his hand, but did not, we think, in any sense suggest the answer sought to be adduced from the witness; nor was it, in the legal sense, a leading question.

It is shown by bill of exceptions that in the trial of the case, after the testimony of the witnesses Jose Cruz Bernal, A. De La Cruz, Dr. Homer Elkins, George Alexander, and Cecillio Bustamante, all witnesses for the state, had been introduced, and they had testified before the jury both on direct and cross examination, and just before the state's counsel announced to the court that they would rest the case, then for the first time, was the indictment against the appellant read to the jury; that at this time the district attorney offered to read and did read the indictment in the case to the jury. Appellant objected to the reading of the indictment at this stage of the proceedings, for the reason that the state had closed its case, and that appellant had not been offered an opportunity of pleading to the indictment before proceeding to trial on the facts, and because the jury had heard the evidence without having heard the pleadings of the state, or the plea of appellant, and because the reading of the indictment at such stage of the proceedings was in contravention of the rules of procedure in such case made and provided, and was calculated to injure the rights of appellant before the jury. This bill is approved, with the statement by the court that appellant had been arraigned at a previous day of the term, and had pleaded not guilty. Article 697 of our Code of Criminal Procedure, is as follows: "Order of Proceeding in Trial.—A jury having been impaneled in any criminal action, the cause shall proceed to trial in the following order: (1) The indictment or information shall be read to the jury by the district or county attorney."

This provision of the Code of Criminal Procedure was, in the case of Wilkins v. State, ...