Freeman v. State

• Citation: 239 S.W. 969
• Decision Date: 05 April 1922
• Docket Number: (No. 6777.)
• Parties: FREEMAN v. STATE.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 969

239 S.W. 969

FREEMAN v. STATE.

(No. 6777.)

Court of Criminal Appeals of Texas.

April 5, 1922.

Appeal from District Court, Hopkins County; Geo. B. Hall, Judge.

J. K. Freeman was convicted of murder, and he appeals. Reversed.

Dial Melson, Davidson & Brim, and H. C. Connor, all of Sulphur Springs, for appellant.

R. G. Storey, Asst. Atty. Gen., for the State.

LATTIMORE, J.

Appellant was convicted in the district court of Hopkins county of murder, and his punishment fixed at 10 years in the penitentiary.

A continuance to obtain the testimony of one York was properly refused. Sufficient reason for this conclusion appears when we state that the testimony of said witness related solely to the impeachment of a witness for the state. No citation of authorities is needed to support a conclusion so well settled as the above. We might add that the diligence to secure the attendance of the witness was insufficient.

Testimony showing that deceased had had trouble with other parties would not be admissible in the absence of some fact reasonably indicating a connection on the part of said other persons with the homicide herein.

Mrs. Grayson, wife of deceased, heard the shooting and ran to where her wounded husband was. She said it could not have been over 3 minutes before she got there. What deceased then said to her would be res gestæ. Among other things contained in said statement was one to the effect that "the old man done it." There was no error in allowing Mrs. Grayson to testify that her husband usually called appellant "the old man."

Mr. Woods got to the scene of the shooting within 15 minutes thereafter. No error appears in allowing him, as well as Mrs. Grayson, to testify that deceased made substantially the same statement to Mr. Woods as that made to Mrs. Grayson when she first came. The statement made to Mr. Woods was unquestionably res gestæ, and this fact would not be altered because Mr. Woods asked deceased who did it.

Mr. Titus measured the tracks leading away from the scene of the shooting and along the route supposed to have been taken by the man who fired the fatal shot. He testified to a certain peculiarity in the track, as well as to his measurement of said track. He also testified that he compared and measured a track made by appellant, and that in his opinion the track made by appellant and those seen by him near the place of the homicide were identical. This was permissible. Mueller v. State, 85 Tex. Cr. R. 346, 215 S. W. 93.

That a doctor was not allowed to testify to the present mental and physical condition of the accused, which testimony was offered to show that he was not mentally or physically able to undergo the ordeal of a trial, would not seem to present anything for our consideration. The accused was an old man, and the case had been continued once on his application for substantially the same reasons as would be detailed by the doctor, and upon a certificate of said doctor. The refusal of the application for a continuance on account of the physical and mental condition of appellant was also made the subject of a bill of exceptions. The statements concerning appellant's physical and mental condition as set forth in said application for continuance made same appear to be chronic, and without apparent expectation of alleviation or relief. Appellant was between 79 and 80 years of age, and, as stated, the case had been continued once on account of his condition, and the trial court qualifies the bill of exceptions by saying that there appeared no reason to believe that appellant could ever be tried if the case was postponed or continued on account of his physical condition. We do not think the overruling of said application any abuse of the discretion of the trial court in the matter.

Various witnesses testified to appellant's strength and his seeming activity for a man of his age, but, in view of the rejection of the testimony of the physician as to his present physical condition, we are of opinion that the district attorney should not have stated to the jury that the only way appellant could escape punishment was by lying on a cot. It appears from the record that during the trial appellant was brought into the courtroom on a cot and lay on one in the courtroom during the progress of the trial.

Appellant introduced in his behalf a physician of experience who saw deceased a little time after the shooting, and gave evidence of a very strong character in support of the proposition that the wound inflicted upon deceased was of such nature as to render him incapable of making connected, coherent, or intelligent statements concerning the shooting. Evidence was introduced by the state showing that about 30 minutes after said shooting, and also about an hour afterward, deceased stated to different parties about the same things that he said to his wife—that is, that old man Freeman shot him, and that he saw him but had no chance to do...