Grant v. State

• Decision Date: 08 May 1912
• Citation: 148 S.W. 760
• Parties: GRANT v. STATE.
• Court: Texas Court of Criminal Appeals

148 S.W. 760

GRANT v. STATE.

Court of Criminal Appeals of Texas.

May 8, 1912.

Rehearing Denied June 19, 1912.

Appeal from District Court, Eastland County; Thomas L. Blanton, Judge.

Sam Grant was convicted of murder in the first degree, and he appeals. Affirmed.

J. R. Stubblefield, of Eastland, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

This is the second appeal in this case; the opinion in the former appeal being found in 60 Tex. Cr. R. 358, 132 S. W. 350. When tried again, the jury again returned a verdict of murder in the first degree, assessing his punishment this time at imprisonment in the penitentiary for life.

Bert Carter testified: That deceased, Oats, spent the night with appellant, and the next day appellant says deceased was at a tank on Jim Williams' place making coffee. That appellant was there with deceased when he went to where they were. That shortly after noon deceased got in his buggy and drove off, when appellant stated to witness Carter he thought deceased was a detective, and suggested that they follow him. That both of them did trail him all that evening, detailing the way they traveled. About sundown deceased went in the home of Mr. Cozort, when appellant stated deceased would doubtless spend the night there, and proposed to witness that they go home and return next morning and kill deceased. That deceased had told him (appellant) he was going to buy a restaurant at Strawn, and he knew he had money. Witness says he objected, when appellant insisted, saying he would do the work and divide the money. That next morning they did return, trailed deceased, telling the way they traveled. That finally they stopped, and appellant got in a tree top and told him to look and see if deceased was coming. He informed appellant that deceased was coming down the road, and, as deceased got about even with an opening in the tree top, appellant fired, then jumped the fence and took his money off of him. Witness says he and appellant then returned to their homes, detailing the way they went, saying, when they parted, that he would come, and they would go to Carbon together; and they did go there together that afternoon.

1. Appellant objected to the witness being permitted to detail what took place between appellant and the witness the evening before up to the time witness says appellant suggested to him to return next morning and kill deceased, and objected to witness being permitted to state what he and appellant did and agreed to do after the money was divided. He also objected to witnesses being permitted to state that they saw two men the evening before at the times and places detailed by Carter, and one witness stating that he recognized one of them as appellant Grant, and objected to witness Everett being permitted to state that he looked well at the men when he saw them passing, and, while he had never seen Grant before, yet he subsequently had appellant pointed out to him, and from his build, complexion, etc., he thought appellant was one of the men who passed him and others on the road that Carter said they went. All this testimony, we think, was clearly admissible. It does not come within the rule prohibiting acts and declarations of conspirators from being admitted, when said or done in the absence of the other. The court permitted the witness to tell nothing but what he and appellant jointly did. If both men had been on trial, a third person, if he had seen these men making these maneuvers, would have been permitted to testify to all these facts to show they were acting together; and that one of the actors is detailing the matter does not alter the rule. And, as the witness Carter, under his testimony, was an accomplice, his testimony had to be corroborated, and it was not error to permit witnesses to state that they saw two men traveling along the road and across the fields that Carter said they traveled; nor to permit a portion of them to say they recognized appellant Grant; nor for others, who did not know Grant, to testify that when they had Grant pointed out to them that from his build, height, complexion, etc., they were of the opinion that he was one of the men passing along with a gun.

Mr. Chamberlain, in his Modern Law of Evidence (sections 48 and 49), treats of the character of testimony given by Carter at length, and holds it admissible and necessary to throw light upon the entire transaction and enable the jury to give to it its due weight. And if the testimony of Carter is admissible, then there can be no question that testimony corroborative of the facts stated by him would also be admissible, as he, in law, under his evidence, was an accomplice or coprincipal, and his testimony had, of necessity, to be corroborated in a way tending to connect the defendant with the offense committed; and for this reason, when Mrs. Cozort testifies that at the time deceased came into their house she saw two men standing where Carter says he and defendant were when he says the agreement to kill deceased was formed; and the testimony of the witness Bob Jennings is admissible, when he says he saw appellant and another pass through his farm, and that they had guns, and fired them at the time and place Carter says he and appellant passed along with guns and fired them; and the testimony of the witness Everett was admissible, when he says he saw two men near to and going in the direction of where deceased was killed, armed with a gun, and that, while he did not at that time know appellant, yet he had met him shortly thereafter, and one of the men he saw passing was of similar height, their make-up the same, and their complexion was alike, and that he thought he was the same man. Other testimony similar to this, all corroborative of the testimony of the witness Carter, was admissible, and these bills present no error.

2. On the question of accomplice, the court charged the jury in terms exactly in accord with the opinion of this court in the case of Campbell v. State, 57 Tex. Cr. R. 302, 123 S. W. 583, and approved in Brown v. State, 57 Tex. Cr. R. 570, 124 S. W. 101, King v. State, 57 Tex. Cr. R. 363, 123 S. W. 135, and other cases handed down since those opinions were rendered. And, the court having thus charged the jury, there was no error in refusing the...