Gaines v. State

• Decision Date: 18 October 1922
• Docket Number: (No. 6608.)
• Citation: 251 S.W. 245
• Parties: GAINES v. STATE.
• Court: Texas Court of Criminal Appeals

251 S.W. 245

GAINES v. STATE.

(No. 6608.)

Court of Criminal Appeals of Texas.

October 18, 1922.

Rehearing Denied May 16, 1923.

Appeal from Criminal District Court, Dallas County; C. A. Pippen, Judge.

C. E. Gaines was convicted of murder, and appeals. Affirmed.

G. L. Perkinson, George Pierson, and Spencer, Short, Lagon & Spencer, all of Dallas, for appellant.

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

MORROW, P. J.

This appeal is from a judgment condemning the appellant to suffer death for the offense of murder.

A branch post office in the city of Dallas was robbed, and in the transaction George Street, an employee in the post office, was killed. The appellant was indicted by the federal grand jury at Dallas, Tex., for robbery, and by the state grand jury for the murder of Street. He was arrested in the state of Indiana, and by order of the federal judicial authorities there was placed in the custody of the United States marshal of the district in which Dallas is situated that he might be tried in the federal court. He was by the consent of the federal authorities placed in the custody of the sheriff of Dallas county that he might be tried in the state court for the offense of murder. He applied to the United States district judge for release upon the proposition that the state authorities were without jurisdiction of his person. Upon the trial of the habeas corpus proceeding involving this question, appellant was remanded to the custody of the state authorities. Upon the entry of this order by the federal judge he gave notice of appeal. These transactions are by bills of exception brought before this court, the appellant contending: First, that he having been brought to Texas to undergo trial for the federal offense, he was not amenable to trial in the state court in the absence of extradition proceedings; second, that the federal authorities having first acquired jurisdiction of him, the state courts were not authorized to try him; and, third, that he having given notice of appeal from the decision against him in the habeas corpus proceeding, his trial in the state court should have been postponed upon his motion until the appeal was decided against him.

The cases of Dominguez v. State, 90 Tex. Cr. R. 92, 234 S. W. 79, 18 A. L. R. 503, and Blandford v. State, 10 Tex. App. 640, to which appellant refers as supporting his contention that extradition is necessary, in our opinion are not in point. They relate to the right of the United States government to try one extradited from a foreign country for an offense other than that named in the extradition proceedings. The right of a person extradited under these circumstances falls under the treaty relations of the United States government and the foreign country. The principles controlling that character of extradition have no force in the transfer of offenders from one state to another. Ham v. State, 4 Tex. App. 645; Kelly v. State, 13 Tex. App. 158; Underwood v. State, 38 Tex. Cr. R. 193, 41 S. W. 618. The matter in hand, however, is not one of extradition. The United States government found the appellant, who is charged with an offense against its laws, within its jurisdiction and brought him to Texas for trial. The federal authorities were under no obligation to surrender him to the state; but, having done so, he is not in a position to complain. He having offended against two sovereigns, it did not lie with him to choose the jurisdiction within which he should be tried. Willoughby on the Constitution, vol. 2, p. 1204; Franklin v. United States, 216 U. S. 559, 30 Sup. Ct. 434, 54 L. Ed. 615; Grafton v. United States, 206 U. S. 333, 27 Sup. Ct. 749, 51 L. Ed. 1084, 11 Ann. Cas. 640; Ex parte Mason, 105 U. S. 696, 26 L. Ed. 1213; Funk v. State, 84 Tex. Cr. R. 405, 208 S. W. 509. We think this conclusion is not in conflict with the cases to which the appellant refers, viz.: United States v. Tarble, 13 Wall. (80 U. S.) 397, 20 L. Ed. 597; Ex parte Johnson, 167 U. S. 120, 17 Sup. Ct. 735, 42 L. Ed. 103; Ex parte Chance (Tex. Cr. App.) 58 S. W. 110; Taylor v. Taintor, 16 Wall. 366, 21 L. Ed. 287; Ableman v. Booth, 21 How. (62 U. S.) 506, 16 L. Ed. 169; Jugiro v. Brush, 140 U. S. 291, 11 Sup. Ct. 770, 35 L. Ed. 510; Lambert v. Barrett, 159 U. S. 660, 16 Sup. Ct. 135, 40 L. Ed. 296; Rogers v. Peck, 199 U. S. 436, 26 Sup. Ct. 87, 50 L. Ed. 256. Provision for appeal from a decision of the United States court, in a habeas corpus proceeding brought in the United States court to contest the right of the state to restrain one of his liberty, has been made by acts of Congress and procedure for the appeal prescribed. See United States Revised Statutes, §§ 764-766. The effect of such proceeding, when the question is whether the detention is in violation of the Constitution, laws, and treaties of the United States, is to stay the hand of the state court; but its power to proceed is deterred only so long as the proceedings are pending in the courts of the United States. United States Ann. Stats. (Flood & Co.) vol. 1, p. 954; In re Shibuya Jugiro, 140 U. S. 291, 11 Sup. Ct. 770, 35 L. Ed. 510.

In the instant case the bill of exceptions in which the appellant makes complaint of the refusal of the trial court to postpone his trial, pending a decision of his appeal to the United States Supreme Court, advises us that the habeas corpus proceeding was heard, the relief prayed for denied, and notice of appeal given to the United States Circuit Court of Appeals, "which appeal was allowed." The evidence heard on the motion to postpone the case in the trial court is not set out, and we are not fully informed concerning what impelled the trial judge to overrule the motion to postpone. Under such circumstances, we must presume that the things that the trial court did it had the right to do. In other words, in the absence of something showing its error in the record, we must presume its rulings correct. We apprehend that the mere notice and allowance of appeal from the decision of the United States district judge would not suspend the power of the state court to proceed with the trial, unless the appeal was perfected, and in support of the judgment denying the postponement, the presumption that it was not obtains. We therefore do not feel justified in reversing the judgment to await the decision of the United States Circuit Court of Appeals, or of the United States Supreme Court, in the absence of an affirmative showing that the appeal was perfected and prosecuted in accord with the procedure provided for that purpose.

The witness Scrivnor admitted upon the examination that he had been convicted of several felonies in the state. Objection was made to his testifying upon the ground that he was an incompetent witness. This objection was overruled and exception reserved. Explaining his action, the trial judge said that he had been advised that Scrivnor had been pardoned by the Governor of the state and that the proclamation of the Governor showing the pardon and the restoration of citizenship would be introduced in evidence, and, in fact, it was introduced. Under these circumstances, we think there was no harmful error. It is true that the demand for the best evidence that a witness has been convicted of a felony may be waived, and that parol proof of his conviction will suffice to disqualify him, but in the instant case, if the court had sustained the objection, the prosecution would have had a right to introduce the pardon and then renew the proffers of the testimony, and this, in substance, is what was done. With the pardon in evidence, the witness was not disqualified. The fact that the state, by its questions, waived the proof of conviction by the certified copies of the judgment, did not deprive the state of rehabilitating the witness by showing the pardon. Hunnicutt v. State, 18 Tex. App. 498, 51 Am. Rep. 330.

The witness Long testified that he found certain things in a house on Jennings avenue in Fort Worth. The point made against this testimony is that it was violative of the constitutional provisions, state and national, against unreasonable searches and seizures. From Long's testimony, it appears that he was a post office inspector of the United States, that he with others went to a house — No. 2733 Jennings avenue — and searched the premises without a search warrant. The house was unoccupied and vacated. There were newspaper men present. The house was in great disorder; the bedclothes were strewn around and papers and books and things were lying upon them; papers were torn into pieces and thrown in front of a burner or gas stove, part of which had been burned and part of which were unburned; there were various pieces of laundry slips showing that laundry had been delivered to the house. These laundry slips were exhibited by the witness. The table was set with dishes upon it, and all of them were dirty. Everything had the appearance of a hasty departure. To this proof objection was made on the ground that it was hearsay, and that it was obtained by unreasonable search. This bill does not reveal the relation of the evidence to the other matters in the case. However, taking account of the nature of the case, we have examined the statement of facts, from which we understand that the appellant, about a week or two before the robbery, had rented the house at No. 2733 Jennings avenue, Fort Worth, Tex.; that the house was occupied thereafter by the appellant and his wife, and George Meyers and his wife; that on the day after the robbery, the witness Dowdy visited the house, and, in the capacity of a transfer man, took from it a trunk and some suit cases, he at the time finding two women at the house. The baggage was taken to the Santa Fé depot and checked to Houston, and subsequently identified as the property of the appellant. At least, the checks were found in his possession, and articles indicating that he was the owner of the trunk were found therein.

The evidence...