Finch v. State

• Decision Date: 19 March 1913
• Citation: 158 S.W. 510
• Parties: FINCH v. STATE.
• Court: Texas Court of Criminal Appeals

158 S.W. 510

FINCH v. STATE.

Court of Criminal Appeals of Texas.

March 19, 1913.

On Motion for Rehearing, June 25, 1913.

Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.

E. R. Finch was convicted of murder in the second degree, and he appeals. Affirmed.

W. G. Love, E. T. Branch, and Brockman, Kahn & Williams, all of Houston, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant was convicted of murder in the second degree and his punishment assessed at 20 years' confinement in the penitentiary.

The first bill of exception complains of the action of the court in refusing to permit the six year old son of appellant to testify in the case. It is shown by the bill the testimony of this witness would have been material in reducing the offense from murder in the second degree to manslaughter, if he would have testified as is alleged in the bill. In the case of Anderson v. State, 53 Tex. Cr. R. 346, 110 S. W. 57, it is said: "It has been uniformly held by this court and is, as we understand, the rule which obtains everywhere that the matter of passing on the competency and understanding of the witness is left largely to the sound discretion of the trial court. The demeanor and manner of the witness on the stand is often as pertinent a factor in determining the mental capacity and competency of a witness as anything else." Taking this rule into consideration, we cannot say that the court abused his discretion in rejecting the testimony of this six year old child.

In the only other bill of exception in the record it is claimed that the court erred in permitting the state to ask Mrs. Della Finch certain questions which are alleged to be leading. The record shows that appellant introduced Mrs. Finch as a witness, that she was formerly his wife, and had her testify to certain facts in the case; and we think the questions were perfectly legitimate in cross-examination of said witness, especially so under the qualification of the court appended to this bill, which is accepted by appellant without objection and filed as a part of the record in this case. These are all the bills of exception in the record; no special charges were requested; but the remainder of the motion complains of the charge as given. Without taking up each ground in the motion, we will state we have read the charge as given and the grounds of objection, and we are of the opinion that the charge fairly submitted each issue raised by the evidence. By selecting one paragraph alone and criticising it, the objections might appear tenable, but, when read as a whole, no grounds for such objections exist. The charge fairly submits manslaughter and self-defense under the evidence adduced, and we must consider the evidence in each case in passing on the charge, and, under the evidence adduced in this trial, the objections made present no error that should call for a reversal of this case.

The judgment is affirmed.

On Motion for Rehearing.

Appellant has filed a motion for rehearing in which he assigns four grounds as reasons why he thinks this court was in error in not reversing and remanding this cause.

The first is that error was committed in not permitting the six year old son of appellant to testify. The rule has always been in this court that this is a matter within the sound discretion of the trial court, and, unless the record disclosed that he abused his discretion and acted arbitrarily, we would not review the matter. The trial judge sees the child, hears him testify on his examination, and while we always loathe to exclude any legitimate testimony, and if this child was a competent witness his testimony would be admissible, yet our Code of Criminal Procedure provides in article 788 that children who do not appear to have sufficient intelligence to relate the transaction, or who do not understand the...