Appeal from district court, Grayson county; Don A. Bliss, Judge.
HENDERSON, J.
Appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for life; hence this appeal. A number of bills of exception are presented, on which a reversal is asked. Only such as are deemed important will be discussed.
1. Appellant's first bill of exceptions brings in review the action of the district judge who tried this cause in refusing to grant a change of venue. The change of venue in this case was asked on the ground of prejudice on the part of the judge. To present this matter fully, the motion to change the venue, as contained in the bill of exceptions, will be set out: "(1) Now comes the defendant, William Gaines, and would represent and show to the court that he cannot have a fair and impartial trial at this court, and before the judge who presides over the court, for the reasons: That soon after the deceased, Charles Koch, was killed, on the same day thereof, and a few minutes after such killing, the presiding judge of this court, the Honorable Don A. Bliss, the judge of the Fifteenth judicial district, in the court room of this (Grayson) county, in the presence and hearing of a large number of people, while this court was in session and engaged in the trial of a case, but while the trial of such case was temporarily suspended on account of the excitement created by such killing, in a nervous, excited manner, stated that the defendant was guilty of a cold-blooded, cowardly assassination, by reason of such killing, and that defendant ought to be hung for such killing. And the said Bliss, judge aforesaid, also stated at such time that he intended to put defendant on trial at once for said homicide. That said judge also then and there stated that he intended to reassemble the grand jury of this (Grayson) county, and have defendant indicted for such
homicide. That such declarations and statements as aforesaid were made at the last term of the court, and on and about the 8th day of July, 1895. That the said judge did cause the grand jury of Grayson county to be reassembled, and that said grand jury had been discharged that term. That upon the reassembling of the grand jury the said Honorable Don A. Bliss, instructing the said grand jury as to their duties, and in commenting on the homicide for which the defendant stands indicted, used the following language, to wit: `Gentlemen of the grand jury, since you were discharged there has been an occurrence which appears to me to have been a cowardly assassination. It will be your duty to thoroughly investigate this occurrence, and you have been reassembled for that purpose. If, after thorough investigation, you believe that a murder has been committed, it will be your duty to find a bill charging the guilty party with the offense. Whether a petit jury sustain this charge by their verdict is something with which you and I have nothing to do. All we can do is to do our duty, and leave the responsibility where it belongs. On the other hand, if, after investigation, you should believe that the killing was justifiable under the law, it will not be your duty to find any bill at all.' The last remarks above quoted were made by the said Honorable Don A. Bliss while this defendant was on trial, charged with assault to murder said Chas. Koch, but during the impaneling of said grand jury, and the utterance of said remarks by said Bliss, the jury were removed from the court room. On the 12th of July, 1895, the said Honorable Don A. Bliss had an interview with a reporter of the Sherman Daily Register, a newspaper of general circulation in the city of Sherman and county of Grayson. That such interview was published in said paper, and also in the Sherman Courier, a newspaper published in Sherman, Grayson county, Texas, and of wide circulation throughout said county, and such interview was also published in the Dallas Daily News, a paper which has a large circulation in Grayson county and throughout the state of Texas, which interview, and what the said reporter said in regard thereto, is as follows: (2) `What Judge Bliss Said about the Killing by Gaines Last Tuesday. (3) There has been more or less talk on the streets to-day about the report that Judge Bliss, before whom the Gaines case is to be tried, had expressed himself on the killing. Judge Bliss stated to a reporter this evening: (4) "I made the remark attributed to me. It was this way: It was during a recess of the court, when an eyewitness, in whom I have confidence, told me of the killing, and the circumstances of it. I remarked that, if such was the case, Gaines was a cowardly assassin, and deserved to be hung."' (5) The defendant would represent that the aforesaid statements of the reporter and of the said Honorable Don A. Bliss have been published as aforesaid, and that your honor has never disavowed or corrected the same in any manner. He would also represent that such remarks and interviews had direct reference to the homicide for which defendant stands indicted in this case. (6) Defendant would also represent that your honor has not only failed to disavow or correct such remarks and interviews, but that he has been informed and believes, and here now charges the fact to be, that your honor has frequently, and to different persons, on the streets of Sherman and elsewhere, substantially reiterated such interviews. (7) Defendant also represents to your honor that the remarks of your honor hereinbefore stated, and hereinafter to be mentioned, concerning the defendant's case, and your honor's attitude towards this defendant in this case, are commonly, generally, and notoriously known through the limits of Grayson county, and the defendant is greatly prejudiced thereby. (8) The defendant would also represent that while he was about to be placed on trial, and after his motion for a continuance had been read to your honor in the case of The State of Texas v. The Defendant, wherein he was charged with an assault to murder Charles Koch, your honor stated at the conclusion of the reading of said application for continuance, to the parties present in the court room engaged in the said case, `Wait a minute;' that you then vacated the bench, left the court room, went to the telephone office in the city of Sherman, put yourself in telephone connection with some one at Van Alstyne, who is unknown to defendant; that you then had a conversation over the telephone with said unknown person, which conversation is also unknown to the defendant; that you then, within a few minutes, returned to the court room and stated that you overruled the application for a continuance; that at such time your honor stated that you had telephoned to some one at Van Alstyne, but the name of the person or persons was not given, neither did you state what the conversation was; that on the preceding evening said motion for a continuance was conceded by counsel for the state, that said application for continuance was good. (9) Defendant would also represent that when, at the last term of the court, the said grand jury was reassembled as aforesaid, your honor, in your instructions to said grand jury, stated to such body, substantially, that it was of the highest importance to the state that all of the witnesses knowing anything about the transaction for which defendant here stands indicted should be brought before such grand jury, and thoroughly examined about such homicide, `and it will be well for you to remember what said witnesses testified, as parties sometimes change their testimony.' (10) Defendant also represents that his wife, Lula B. Gaines, was a material witness for him in the said case of assault to murder
that said application for continuance was sought to obtain the testimony of his wife, among that of others; that Dr. Neathery, a practicing physician at Van Alstyne, in Grayson county, Texas, and a reputable citizen of the county, made a certificate and affidavit, which was presented in connection with said application to continue, to the effect that defendant's said wife was sick, and in such condition that she could not attend court at the trial of said cause; that after the motion to continue said case was overruled, and after said case was tried, and after defendant's wife had failed to testify in said case on account of said sickness, your honor went to Van Alstyne, and there upbraided the said Neathery for making said affidavit. (11) Defendant would also represent and show to the court that the first indictment presented against him was quashed on or about the 19th day of August, 1895; that prior to that time defendant had procured the issuance and service of process for and upon certain witnesses in his behalf; that, when the grand jury for this term of court were impaneled, such body, following the instructions as given aforesaid by your honor, caused process to issue for and be served upon the defendant's said witnesses served with process on the first indictment as aforesaid. (12) Defendant would represent and show to your honor that by reason of the conduct, declarations, and statements of your honor as above set forth, that he cannot expect a fair trial at the hands of your honor; that your honor has become so prejudiced and biased against this defendant that you cannot calmly and dispassionately try this cause; that the mind of your honor is so biased and prejudiced against this defendant that you cannot with fairness and impartiality pass upon the admissibility of testimony that may be offered on the trial of the case; neither could your honor, if it should become necessary, with fairness and impartiality weigh...
