Gaines v. State

• Decision Date: 08 November 1899
• Citation: 53 S.W. 623
• Parties: GAINES v. STATE.
• Court: Texas Court of Criminal Appeals

53 S.W. 623

GAINES v. STATE.

Court of Criminal Appeals of Texas.

November 8, 1899.

Appeal from district court, Grayson county; Don A. Bliss, Judge.

W. R. Gaines was convicted of murder in the first degree, and appeals. Reversed.

M. H. Garnett, P. B. Muse, J. D. Woods, I. M. Standifer, and Hazlewood & Smith, for appellant. 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 confinement in the penitentiary for life, and he appeals.

This is the second appeal. The appellant was convicted on a former trial, and appealed to this court. The case was reversed and remanded at the October term, 1897, and the same will be found reported in 38 Tex. Cr. R. 202, 42 S. W. 385. The evidence on the present trial is substantially the same as on the previous trial; the most material difference being that in the former trial Mrs. Lula Gaines and A. J. West did testify, but were not present at this trial. In the first trial defendant did not go on the stand, but was a witness for himself on the present trial.

Appellant excepted to the action of the court in having him brought from the penitentiary at Rusk (he being confined there on another case) to stand his trial in this case, it being contended that it was not competent for the state to do this. There is nothing in this contention. While we know of no procedure authorized by legislation to bring a defendant from the penitentiary to some court for trial in another case, yet there is no law to the contrary, and such has been the usual practice; and we fail to see how a defendant can be heard to complain that the penitentiary authorities surrendered him to the local authorities for trial on some indictment pending against him. The legislature has authorized the penitentiary board to make certain rules in regard to the conduct of the convicts confined and under their charge, and we understand the prison authorities have provided a rule recognizing the authority of district judges to issue writs for prisoners confined in the penitentiary to be brought before the court for trial in any case that may be pending against them. This would seem to be sufficient authority to bring the prisoner before the court. At any rate, in the absence of some express provision prohibiting this, we fail to see how the prisoner can complain. The constitution guaranties him a speedy trial, and at his request he would be entitled to be tried in cases pending against him, although he might be confined in the penitentiary. On the other hand, if he should be serving a term of punishment in the penitentiary that extended over a number of years, and at the same time an indictment should be pending against him for some graver offense, — it might be rape or murder, — there would be no means to bring him to trial until the sentence in the case which he was serving had terminated; and perhaps in the meantime the witnesses against him might die, or be so scattered as that a prosecution could not be maintained by the state.

On the 3d of January, 1898, this cause was set for trial for the 17th of said month, and appellant was brought from the Rusk penitentiary to the jail of Grayson county on January 7, 1898. Before appellant was brought to Sherman, and in his absence from the court room, the venire in his case was drawn. When he was brought before the court on the 17th of January, he moved to quash the venire on the ground "that he was not present when the same was drawn, and had no knowledge that it was drawn until long after it had been so drawn, and had no opportunity to be present when the same was drawn"; and he claims that he was thereby deprived of an important right. This proposition has been decided by this court adversely to appellant's contention. See Pocket v. State, 5 Tex. App. 552. Since that decision it has been followed in practice, and, whatever may have been our view of this matter as an original question, we are unwilling to change the rule now. Certainly, in the absence of some showing of injury to appellant by the action of the court, we would not reverse the case on this ground. An inspection of the record fails to disclose that the special venire was not drawn in accordance with the strict letter of the law; nor is it shown that the venire was exhausted before the jury was completed, — much less, that appellant availed himself of all his challenges.

Appellant made an application for continuance based on the absence of his wife, Mrs. Lula Gaines, and A. J. West. Under the circumstances of this case, we think appellant used due diligence to procure the testimony of these witnesses. So far as the record discloses, he was not apprised that his case would be tried, until the 7th of January, 1898, — just 10 days before it was actually tried. After he was brought back to Sherman he is shown to have made diligent inquiry for West, and, for aught that appears, appellant had a right to expect the attendance of his wife whenever he should be tried, up to the time when the letter from her was received by him at the jail, and after that it was too late to take her depositions. Both of these witnesses testified on a former trial of the case, and their evidence was of a material character; and we believe the application should have been granted.

By appellant's fifth bill of exceptions, he questions the action of the court in not allowing him to impeach the witness Josh Wilkins by Dr. Nethery. It appears that the state introduced this witness, Wilkins, and examined him about certain matters concerning threats by defendant to take the life of deceased, Koch. On cross-examination defendant asked the witness concerning an incident that happened while he and Gaines, the defendant, were riding along the road, and met Charley Koch. This question was objected to by the state on the ground that it was not in cross-examination of anything brought out by the state. Afterwards the defendant recalled the witness Wilkins, and asked him the following question: "At any time while you were living with Mr. Gaines, did you go with him in a wagon or buggy, or vehicle of any kind, and did you on the way meet Charley Koch, and did he, with a double-barrel shotgun, or some weapon, make Mr. Gaines drive around him?" — to which the witness replied, "No, sir." Defendant afterwards introduced Dr. Nethery, and proposed to prove by him that on a certain occasion, in conversation with the witness Wilkins, said witness told him (Nethery) that, while he (witness) and defendant were in a wagon going or coming from Van Alstyne, they met Mr. Koch (deceased), and that he had a double-barrel shotgun, and he compelled Mr. Gaines to drive around him. On objection this testimony was not admitted by the court. As disclosed by the bill, appellant made the witness Wilkins, as to this matter, his own witness; and, on his failure to prove a fact inquired about, it was not competent for the defendant to impeach him. In this there was no error.

In appellant's sixth bill of exceptions it is shown that he introduced Berry Monger as a witness on his behalf, who, after he had given in his testimony, was excused and went home. Defendant, being placed on the stand on his own behalf, testified concerning his movements just before the difficulty, and, in that connection, stated that Monger was with him. The state, on cross-examination, asked defendant why he did not ask the witness Monger about his being with him (defendant), or close to him, at the time of the shooting, while he was on the stand, and before he had been excused and left for McKinney, to which appellant answered that he did not know why his counsel had not asked him about it. Counsel for the state then asked the witness the following question: "Is it not a fact that you never testified to that, and introduced no other witness to testify to that fact [referring to Monger's being with him at the time of the shooting], in your case on the former trial?" The defendant answered, "Yes, sir." This was objected to by defendant's counsel on the ground that it was irrelevant and in contravention of the statute. It appears that the court was not paying attention to the proceeding, and asked that the question be repeated. The state's couns...