Gaines v. State

• Court: Texas Court of Criminal Appeals
• Writing for the Court: Hurt
• Citation: Gaines v. State, 37 S.W. 331 (Tex. Crim. App. 1896)
• Decision Date: 14 October 1896
• Parties: GAINES v. STATE.<SMALL><SUP>1</SUP></SMALL>

37 S.W. 331

GAINES v. STATE.¹

Court of Criminal Appeals of Texas.

October 14, 1896.

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

W. R. Gaines was convicted of an assault with intent to murder, and appeals. Affirmed.

Standifer & Eppstein, Woods & Holt, and Hazlewood & Smith, for appellant. Mann Trice, for the State.

HURT, P. J.

Appellant was tried in the court below on a charge of assault with intent to murder, was convicted and given four years in the penitentiary, and prosecutes this appeal.

1. Appellant contends that the court erred in not changing the venue in this case on motion made by defendant. The court heard a great number of witnesses, both for the defendant and the state, on this question, and held that the appellant was not entitled to a change of venue. We have carefully examined the testimony of the witnesses on this branch of the case, and it does not appear to us that the court abused its discretion in this matter; the rule being that the action of the lower court in changing or refusing to change the venue in a case will not be reversed on appeal unless it is made clearly to appear that such action was an abuse of the discretion confided in the trial judge, and prejudicial to the defendant. See Cox v. State, 8 Tex. App. 254; Bohannon v. State, 14 Tex. App. 271; Martin v. State, 21 Tex. App. 1, 17 S. W. 430.

2. A motion for a continuance was presented by the defendant, and overruled by the court, to which defendant excepted. The matters involved in said motion were subsequently brought forward in the motion for a new trial, and the action of the court in overruling said motions is assigned as error. The continuance was sought for the testimony of the absent witnesses Kirg Gaines and Mrs. Lula Gaines. The facts expected to be proved by the witnesses are not clearly stated. Inferences are contained in the motion, when nothing but facts should be stated. When viewed in the light of the undisputed facts of the case, it was absolutely necessary that the motion set forth explicitly and unequivocally the facts expected to be proved by the absent witnesses. Several witnesses swore positively to facts which, if true, established the guilt of the appellant beyond any question. The turning point in the case was as to what the prosecutor was doing at the time appellant shot at him. If the prosecutor, Koch, was making any demonstration which tended to show that he intended to shoot appellant, then self-defense might be in the case. The witnesses examined (those who saw him at the time of the shooting) swear positively that he was doing nothing indicating an intention to shoot appellant. The circumstances of this case are such that unless this was the case the testimony of the absent witnesses, as set forth in the application, amounts to nothing. The affidavits of Kirg Gaines, brother of the defendant, are in the record. He was present and saw the shooting. In his first affidavit he swears most unequivocally that the prosecutor, Koch, had retreated from the gate of the appellant, and was absolutely doing nothing, when he was shot at by the defendant. In his second affidavit, which is surrounded with a great deal of suspicion, he does not pretend to say that Koch was making any demonstration, or doing anything calculated to induce the appellant to believe that he was in any sort of danger. He simply says that he did not see him at the time the first shot was fired. By Mrs. Lula Gaines, wife of the appellant, he proposed to prove: "That when Koch came up to the gate he inquired of her, `Where is that son of a bitch of a husband of yours? I want to see him.' When defendant came in sight, that Koch stopped, and got his Winchester in position that he could bring it up and shoot before defendant fired at him, when the said Koch fled and defendant shot at him." This did not indicate the position in which Koch held his gun, which should have been done, and was of no fact indicating any demonstration on his part; she expressly stating that at this juncture he fled, and defendant then shot. Now, concede everything she says to be true; it presents neither manslaughter nor self-defense. On motion for a new trial, appellant attaches the affidavit of Mrs. Lula Gaines, his wife, and the part relating to the difficulty is as follows: "About 11 o'clock in the morning, as I was going out the front door of our residence, I saw my brother drive up to our gate in a sulky and stop. He got out with a Winchester rifle in his hand, and called me to come to the gate. I told him I couldn't come, but I did go. My brother then said: `Where is Bill? I want to see him.' I told him that he was in the back part of the residence. My brother insisted on seeing him, saying that he understood that my husband had been abusing me. I believed from my brother's manner that, if Billy came to the door, that my brother was going to kill him. I told him that my husband had not been abusing me, and insisted on his leaving. My brother hesitated for a minute or two, and then said, `I will go and see John Baldwin, and, if he says that your husband has abused you, I will come back and settle with him.' My brother then started off in the direction of Baldwin's, and I started back in the house. When I was going back in the house, my husband came out on the gallery, through the front door, and my brother stopped and turned around; and I said, `Charlie, what are you going to do?' About that time my husband began shooting. My brother made no effort to shoot. I know that my brother was a good shot with a Winchester, and I expected to see him kill defendant." The testimony of the other witnesses establishes the fact that Koch, when requested to leave the gate, did so, and had gone, when shot at, about 40 or 50 yards from the gate. There was nothing in the testimony of this witness, Mrs. Lula Gaines, upon which could be based self-defense or manslaughter. In fact, the eyewitnesses to this transaction agree remarkably well as to what did occur at the time, and the trend of the testimony leads unequivocally to the conclusion that appellant was guilty of an assault with intent to murder.

3. Over the objection of the appellant the state was permitted to prove that there was trouble between appellant and his wife the day before the shooting. Appellant attempted to justify the shooting upon the ground of self-defense, and relied mainly, if not entirely, upon the fact that Koch came to his house, stopped at the gate, armed with a Winchester rifle, and inquired for him. Appellant contends that his presence, under the circumstances, was calculated to induce appellant to believe that he was there for the purpose of killing him. Under this state of case the state had a right to show that Koch went there to ascertain the facts pertaining to the trouble. It will be remembered that Koch was the brother of the appellant's wife. We are of the opinion that the state had the right to make this proof. Now, if there was trouble between appellant and wife, appellant knew it; he also knew that Koch was the brother of his wife; and, under that state of case, it would have been unreasonable for him to have concluded that Koch came on any other business. The record, however, places this question beyond dispute, and shows that the appellant knew that that was the object for which Koch visited his house.

4. The witness Josh Wilkins was permitted to state, over the defendant's objection, that: "Gaines on one occasion, after the shooting, said, in talking about it— I remember that he said that if he ever had it to do again he would be a dead shot, and see that he didn't miss him." In our opinion, this testimony was admissible as a declaration of the defendant made after the difficulty, which is always admissible. If it showed the animus of the defendant in making the assault, it could be legitimately used for that purpose, and if it did not it certainly worked no injury to him.

5. On the trial the witness Josh Wilkins testified that the defendant stated in the conversation, in his presence, that the cause of Koch coming to defendant's house on the day of the shooting was what occurred the day before. The witness was then asked by counsel for the state this question: "Did he [Gaines] say what occurred the day before?" The defendant objected to this testimony, which was overruled, and the witness answered "that the defendant said he supposed it was on account of the racket that occurred the day before that Koch had come there, that Koch nor anybody else had anything to do with the rackets that occurred in his family, and that it was none of Koch's business if he [defendant] beat Lou [his wife] to death." This evidence showed that appellant was conscious of the purpose for which Koch came there, and, as we have before stated, was admissible.

6. Bill of exceptions No. 6 embodies 23 pages, and is of a most extraordinary character. It is a general exception to all of the testimony of one witness. Some of the testimony is unquestionably admissible. In fact, the great bulk of it is competent testimony. There may be embodied in the examination of the witness, which embraces both questions and answers, some questions that were leading; and it is possible that there may be some portions of the testimony, if pointed out, that might be considered by us inadmissible. But concede that any part of it was inadmissible; it is of such an immaterial nature, when considered in connection with the whole facts of the case, as to have no bearing upon the jury. Evidently, declarations of the appellant before and after the assault were admissible in evidence. The state had a right to prove by these declarations that appellant knew that Koch had come to his house for the purpose of ascertaining something about that difficulty between appellant and wife. This was very important testimony for the state, and cogently establishes the theory that appellant shot at Koch, not because he...