Ferguson v. State

• Decision Date: 07 October 1925
• Docket Number: (No. 8715.)
• Citation: 276 S.W. 919
• Parties: FERGUSON v. STATE.
• Court: Texas Court of Criminal Appeals

276 S.W. 919

FERGUSON v. STATE.

(No. 8715.)

Court of Criminal Appeals of Texas.

October 7, 1925.

Rehearing Denied November 11, 1925.

Appeal from District Court, Limestone County; A. M. Blackmon, Judge.

Scotty Ferguson was convicted of manslaughter, and he appeals. Affirmed.

O. F. Watkins, of Mexia, for appellant.

Tom Garrard, State's Atty., and Grover C. Morris, Asst. State's Atty., both of Austin, for the State.

LATTIMORE, J.

Appellant was convicted in the district court of Limestone county of manslaughter, and his punishment fixed at 5 years in the penitentiary. This is the second appeal of this case. See 95 Tex. Cr. R. 212, 253 S. W. 290. The facts are sufficiently stated in the former opinion.

There are seven bills of exception. We are not informed, by the bill complaining of the refusal of a continuance, how many prior applications had been presented, but it is not claimed that this was a first application. The bill taken to its refusal is qualified by the trial judge, who states that three of the absent witnesses were present at a former term and were not used. There appears no sufficient showing of diligence as to the other three witnesses. Complaint is also made of the refusal of a supplemental application. This bill is also qualified by a statement that at a former trial the absent witness Allen was neither summoned nor called to appear as a witness, though a resident of the county. The facts stated as expected were necessarily known to appellant, and as material at said former trial as at any subsequent time. Diligence is lacking.

Any facts and circumstances showing ill will and prejudice of a witness for the defense against the deceased are admissible. See authorities collated in section 162, Branch's Annotated P. C.

The fourth bill of exceptions shows no error. The question therein shown to have been propounded to defense witness Carter, with reference to the action of a mass meeting of the citizens of Mexia and what they did and said relative to deceased, was not admissible and could not rebut the inference of prejudice on the part of said witness Carter arising from other facts in evidence. The court further qualifies the bill by stating that no information was given him as to those matters set out in the bill of exceptions as the "further testimony" of said witness, had he been permitted to answer said question.

Bill of exceptions No. 6 is unintelligible. It refers to "recommendations" and "charges" and "evidence adduced on cross-examination by the state," none of which are set out, and we have no means of knowing if the complaints be well founded.

An offense is classed as a felony in this state when punishment is fixed by statute by confinement in the penitentiary, even though as an alternative. It was not error to admit proof that a defense witness had pleaded guilty to possession of intoxicating liquor in the federal court, he having admitted on oral examination that he had been charged with said offense but claimed that it had been dismissed; there being nothing in the record showing it to be a first offense, and the punishment for such offense being fixed in the alternative at confinement in the federal penitentiary.

Finding no error in the record, the judgment will be affirmed.

On Motion for Rehearing.

MORROW, P. J.

Upon the call of his case, appellant made a motion for a continuance, which fails to show whether it was the first or subsequent application. Under the circumstances, it would be regarded as a subsequent application. After it was overruled, as shown by the original opinion, he presented what is denominated a supplemental application. This, under the law, would be treated as another application for a continuance and an additional or subsequent application. It was to secure the testimony of the witness Sam Allen. It is alleged that Allen was subpoenaed on the 15th day of October, 1923. He was a resident of Limestone county, and the motion recites that the "witness is at present in the state of Indiana, which fact has just now become known to the defendant." Why it was not previously known is not explained. The witness, according to the motion, had been city marshal of one of the towns of Limestone county. The record on the former appeal (95 Tex. Cr. R. 212, 253 S. W. 291) indicates that Allen was present but was not used as a witness. It appears from the former record that Allen was a witness to a communication of the appellant of threats against him made by the deceased. If Allen's absence was known to the appellant, and he desired to use him as a witness, he should have been included in the application for a continuance at the present trial. If his absence from the state was unknown at that time, the subsequent application, denominated as a supplemental application, should have contained an averment exempting the appellant from a lack of diligence in failing to...