Faulkner v. State

• Decision Date: 04 December 1901
• Parties: FAULKNER v. STATE.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Criminal Appeals

65 S.W. 1093

FAULKNER v. STATE.¹

Court of Criminal Appeals of Texas.

December 4, 1901.

Appeal from district court, Dallas county; Chas. F. Clint, Judge.

Eugene Faulkner was convicted of murder in the first degree, and appeals. Reversed.

Miller & Fouraker, for appellant. J. C. Muse, S. H. Russell, and Robt. A. John, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of murder in the first degree, and his punishment assessed at death.

The facts of the case show that between 11 and 12 o'clock on the night of December 3, 1900, deceased, C. P. Bane, was in the saloon of Chapman & Faulkner, situated on the southeast corner of Elm and Preston streets, in the city of Dallas. He was in an intoxicated condition. At the particular time he was in the rear room of said saloon, which was partially cut off by a screen from the front room, where the bar was situated. He was sitting by a stove, in a bent position, evidently asleep, or in a state of stupor. Turpentine was poured on his back by appellant, or by those with whom he was engaged, and some one set fire to the clothing of deceased, and the fire at once spread over his person, the flames shooting up two or three feet above his head. He rushed from the rear of the saloon to the front, enveloped in a sheet of fire. His clothes were almost entirely consumed. He either fell on the floor or was thrown down in an attempt by some one to put out the fire. He was shown to have suffered great agony and pain. In a short time he was removed from the saloon to the city hospital, where he lingered for a few hours, expiring from the effects of the burns he had received. We understand this to be uncontroverted. The theory of the state was that appellant and his partner, Chapman, Renner, and possibly the two Pruitts, acting together, — the first two out of motives of robbery, and all of them in a spirit of diabolism, — poured turpentine on deceased, and appellant set fire to him. The theory of defendant was that the turpentine was poured on deceased, not for the purpose of killing him, but for amusement, and that it was not designed to burn him, and that some one set deceased afire while he (defendant) was not present, and without his knowledge or consent.

Appellant made a motion to change the venue on the ground that so great a prejudice existed against him as that he could not expect a fair trial. This was supported by his own affidavit and that of M. A. Rawlins and T. M. Barnard. The state controverted this by the affidavit of J. Roll Johnson, sheriff of Dallas county, who, in effect, stated that appellant's compurgators were obscure persons, and their acquaintance in said county was limited; and that said compurgators were friends of defendant and his associates, and on that account they were biased in favor of defendant; and said defendant could procure a fair and impartial jury in Dallas county. On the trial of this motion appellant introduced 43 witnesses, a great majority of whom lived in the city of Dallas and Oak Cliff. Some, however, lived in other portions of the county. These were shown to be of almost every vocation, — ministers, merchants, lawyers, farmers, physicians, newspaper men, — and it was shown by them that their acquaintance was extensive throughout the county, that they had conversations with a great many persons, and heard expressions in regard to the burning of Bane by defendant and his confederates, and that all the expressions heard by them were to the effect that defendant was guilty. Some said he ought to be hanged, and some that he ought to be burned. A majority of these witnesses stated that they had formed an opinion as to the guilt of appellant, but that they believed they could give appellant a fair trial, and they believe that he could get a fair trial in Dallas county. However, some admitted that they had formed opinions in regard to appellant's guilt, which were fixed, and that they did not believe he could get a fair trial in the county. In connection with this it was shown that the trials of Renner and Chapman had preceded the trial of appellant, and that the newspapers (including the Dallas News, Times-Herald, and Garland News) had published some or all of the testimony in the cases. The circulation of these papers was shown to have been extensive throughout the county. In addition it was shown that in the trial of said two preceding cases a special venire was chosen, and evidently through this, as well as through the newspapers, the case against appellant became notorious throughout the county. It appears from the bill of exceptions that after 43 witnesses had been produced by appellant, and testified as to the prejudice against him, the court refused to hear any further testimony from him, and none was introduced by the state in contravention of the evidence of appellant's witnesses. The court says that all or nearly all the witnesses introduced by appellant were from the city, and that their evidence showed that no prejudice existed. In addition the court states he had heard over 100 witnesses in the Chapman and Renner cases on like motions, many of whom were from the country, before hearing this motion, and over 70 of them qualified and about 90 disqualified as jurors, and but 1 in all the cases believed or heard of any prejudice. Why the court interpolated this explanation as to the motions for a change of venue in the other cases, and as to what they said, is not stated. Certainly, what said parties stated in other cases was not evidence in this case; and, if these were some of the witnesses appellant proposed to introduce, certainly their testimony should have been admitted. Moreover, it is stated in said explanation that 90 of 160 men from the country were disqualified. The grounds upon which they disqualified is not stated. However, the court remarks "that but one in all the cases believed or heard of any prejudice." What the court term "prejudice" means is not stated, but we may gather from his previous statement to the effect that the witnesses who had been introduced all showed that no prejudice existed against appellant that he means by this that when a person has formed an opinion that defendant is guilty, and that he ought to be burned or hanged, and that these were the universal expressions he had heard in regard to defendant and the case, that this is not such prejudice as ought to operate to change the venue. Now, it has been held by this court, since Randle's Case, 34 Tex. Cr. R. 43, 28 S. W. 953, that "prejudice" and "prejudgment" mean the same thing; that is, when one has prejudged a person's guilt of the accusation charged against him, that he has a prejudice against such person. In Meyers v. State, 39 Tex. Cr. R. 500, 46 S. W. 817, the same doctrine was announced. The writer of this opinion, however, upon this proposition, differed with the majority of the court in the Meyers' Case, believing that the mere formation of an opinion in the case did not involve a prejudice against defendant, which, according to the ordinary definition of the term, must carry with it some element of hatred or ill will. But in that connection the following language was used: "A case may occur of such startling atrocity as not only to create the formation of an opinion in regard to the guilt or innocence of the party accused of crime, but also to engender a personal prejudice or animosity against such person, that is, the case itself may be so horrible as to engender a personal prejudice against the person accused of perpetrating it." And to the same effect, see Gallaher v. State, 50 S. W. 388, 40 Tex. Cr. R. 296. However, the Randle Case has been followed in this state since its enunciation; but, even if that be an extreme view in the definition of prejudice, certainly the modified doctrine as above expressed cannot be successfully controverted. And if it be conceded that an appellant may be charged with the commission of an offense so atrocious as to create a prejudice against him, then evidently this case meets the full measure of the most exacting requirement; for in wickedness and atrocity it is equaled by few and excelled by none in the annals of criminal jurisprudence. The statements of the witnesses introduced, their intelligence, apparent disinterestedness, and their means of information, although a majority of them lived in the city of Dallas, it occurs to us was enough, and more than enough, to convince the most skeptical mind that the case against appellant and his confederates was well known and thoroughly discussed throughout the limits of Dallas county, and that the evidence against appellant had permeated every portion of that community. True, a majority of the witnesses say that they could give appellant a fair and impartial trial, and they believed he could get such trial in Dallas county, but they admit they have formed an opinion to the effect that appellant is guilty of burning a man, and that he ought to be hanged or burned therefor. If fair trial by jury, as guarantied by the constitution, be of any worth, what bides it, or of what avail is it, if a citizen charged with burning a fellow man is to be tried by a jury composed of men who have heard all about the offense, and who believe he is guilty and ought to be hanged, and yet believe — no doubt honestly — that they can give defendant a fair and impartial trial? Prejudice is a sinister quality. It may possess a man and he not be aware of it; or, being aware of it, he may purposely conceal it, in order that he may vent his revenge. In according a change of venue our statutes wisely provide against that prejudice which may creep into the jury box. It is intended to avoid, as far as possible, the impanelment of even one prejudiced juror; and our decisions proceed upon the idea that, where a crime, on account of its atrocity, has become notorious, and the prevailing sentiment in the community is that the party charged with the offense is...