Gray v. State

• Citation: 268 S.W. 941
• Decision Date: 18 June 1924
• Docket Number: (No. 8523.)<SMALL><SUP>*</SUP></SMALL&gt
• Parties: GRAY v. STATE.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

268 S.W. 941

GRAY v. STATE.

(No. 8523.)^*

Court of Criminal Appeals of Texas.

June 18, 1924.

Rehearing Denied February 25, 1925.

Appeal from District Court, Titus County; R. T. Wilkinson, Judge.

G. C. Gray was convicted of murder, and he appeals. Affirmed.

Callaway, Short & Callaway, of Dallas, for appellant.

T. C. Hutchings, Dist. Atty., and Sam Williams, Co. Atty., both of Mt. Pleasant, and Tom Garrard, State's Atty., and Grover C. Morris, Asst. State's Atty., both of Austin, for the State.

MORROW, P. J.

The offense is murder; punishment fixed at death.

On the night of the 24th of September, 1923, the deceased, Otis Ballard, disappeared. About four days later his body was found in a creek some miles distant. It was badly swollen and decomposed, stripped of its clothing, and had fastened to it with a barbed wire a heavy piece of iron. The evidence reveals without controversy that on Monday night the deceased was killed by a blow or blows upon his head with a piece of iron; that at that time he was in the vicinity of a certain schoolhouse situated at Mt Pleasant, where he had gone in company with some other boys, among them, Paul Keith and George McKinley. They were joined by the appellant. The others departed, thus leaving the deceased and the appellant together. They walked from the schoolhouse into the woods near by, where the deceased was killed. While there they were joined by Burl Kemp, a negro. According to the appellant, Kemp, without previous arrangement with appellant, and over his protest, struck the boy Ballard with an iron rod and killed him. Kemp had been working for the appellant for a number of years. He testified that the appellant had told him that he intended to kill Ballard, and that at the appellant's request, he (Kemp) had secured and taken to the home of the appellant a piece of iron suitable for striking the deceased upon the head, and a heavier piece suitable for sinking his body in the water; that, by pre-arrangement, McKinley and Keith had induced the deceased to join them at the schoolhouse, and had notified the appellant of his presence; that appellant, upon receiving this notice, started to the schoolhouse, instructing Kemp to follow him within a short time; that this was done, and when Kemp reached the schoolhouse, he saw no one, but later saw the appellant, and was directed to a trail which led to the body of the deceased, which was lying in the weeds and bleeding. The body was carried by Kemp and the appellant for a distance, and put into an automobile procured by appellant in the meantime, taken to the creek, mentioned, stripped of its clothing, fastened to the iron, and sunk in a deep hole in the creek.

Appellant had been charged with burglary. Ballard was a witness against him. Various efforts to induce Ballard to depart from the country had been made by the appellant, and it was his theory and testimony that the meeting at the schoolhouse was sought by Ballard for the purpose of further negotiations touching his leaving the country. The state's theory was that the meeting was sought by the appellant; that McKinley and Keith were accomplices, and designedly left the deceased alone with the appellant so that the homicide might take place.

Two hundred veniremen were drawn on the special venire; all but 39 were served. In the motion to quash the return, it was averred that some of the veniremen were not summoned by the sheriff, but by other officers. It appears from the bill as qualified that few of those summoned failed to attend; that the court excused all the veniremen to whom the appellant objected because of not having been served by the sheriff; that attachment for those not present was waived; that no talesmen were required, but that the jury was selected from the veniremen in attendance without exhausting the peremptory challenges awarded the appellant. No objectionable juror was shown to have served. An irregular summons, which results in the attendance of a juror, cannot be made a ground for quashing the venire or the return thereof. Charles v. State, 13 Tex. App. 664; Brown v. State, 87 Tex. Cr. R. 261, 222 S. W. 252. Under the facts given in the bill, the irregularities in the return resulted in no injury to the appellant. Whittington v. State, 86 Tex. Cr. R. 3, 215 S. W. 456, and authorities there cited.

Against the indictment the point is made that the grand and petit juries were not drawn by jury commissioners. The indictment was found at a special term, called in an emergency, and it was not illegal to organize the grand jury without jury commissioners. Ex parte Holland, 91 Tex. Cr. R. 339, 238 S. W. 654; Newton v. State, 93 Tex. Cr. R. 314, 247 S. W. 282; Stephens v. State, 93 Tex. Cr. R. 164, 245 S. W. 687; Bennett v. State, 95 Tex. Cr. R. 422, 254 S. W. 949.

The two witnesses named in the application for a continuance were charged under separate indictments with the same offense. By statute they were precluded from testifying upon behalf of the appellant. Article 791, C. C. P. One of them, George McKinley, was called as a witness for the state, and was cross-examined by the appellant's counsel.

After six of the jurors had been selected, sworn, and kept together for a day, appellant sought to challenge one of them for the reason that he was on the appearance bond of the deceased, who, at the time, was under indictment for a criminal offense. On hearing the motion for new trial, it was shown, according to the court's qualification, that before the juror was accepted, appellant knew that the juror in question was a surety upon Ballard's appearance bond. This was not a disqualification. There was, however, no challenge for cause, and the right to peremptorily challenge the veniremen was waived.

Over his protest, appellant was handcuffed during his trial. It is a rule that one should not be tried in irons. "In extreme and exceptional cases, where the safe custody of the prisoner and the peace of the tribunal imperatively demand, the manacles may be retained." Bishop's New Crim. Proc. (2d Ed.) vol. 2, § 955. It seems, however, that the departure from the rule upon the ground stated is a matter resting upon the sound judicial discretion of the trial court, to be reviewed only in instances where it is abused to the prejudice of the accused. This seems to be the rule applied in Rainey v. State, 20 Tex. App. 455; see page 472. See, also, Canon v. State, 59 Tex. Cr. R. 399, 128 S. W. 141; Vela v. State, 33 Tex. Cr. R. 322, 26 S. W 396; Ency. of Law and Proc., vol. 12, p. 529, note 48; McPherson v. State, 178 Ind. 583, 99 N. E. 984; Donehy v. Comm., 170 Ky. 474, 186 S. W. 161, 3 A. L. R. 1161; State v. Miller, 78 Wash. 268, 138 P. 896, and other cases supporting the rule cited by Mr. Bishop in the text quoted. The bill is qualified by the transcription of the testimony of the sheriff and some other peace officers, heard upon the presentation of the motion for new trial, also by the statement of the judge appended to the bill, which we here copy:

"Examined and approved with this explanation: I also talked with the sheriff of Titus county, and Capt. Nichols, of the ranger service, who was assisting the sheriff during court. They both told me that it was unsafe to take the handcuffs off. I was opposed to trying him with the handcuffs on, and so stated to the officers, talking on more occasions than one during the progress of the trial to the sheriff and ranger and deputies. Capt. Nichols advanced this reason for keeping the handcuffs on. He said defendant was desperate, and in all probability was bent on self-destruction, and would very likely try to secure some deputy's pistol and create a stampede in the courtroom, and possibly deliberately do something to force the officers to kill him. I kept the handcuffs on him at the request of the officers. Besides, they were very small silver-plated cuffs, and were not in view when defendant was sitting down. He could easily slip them back under his coat sleeves and could use his hands very well."

Taking note of the evidence before the trial judge, and the information by which he was impelled, we feel that this court would not be warranted in concluding that the record reflects an abuse of the discretion which the law vested in the trial court.

It is contended that in receiving certain testimony given by the accomplice witness, Burl Kemp, violence was done to the rule of evidence which rejects the acts and declarations of a coconspirator after the completion of the offense to which the conspiracy related. It is believed that counsel for the appellant in urging this point has not given effect to the manifest distinction which exists in regard to the source from which the evidence comes. To our minds, it seems clear that a coconspirator or coprincipal, who testifies as a witness in behalf of the state, may relate upon the witness stand all that was done by the accused in the preparation for the crime, its commission, the disposition of its fruits, the concealment of its perpetrators, and the suppression of evidence of their guilt; also to any act or declaration of the accused which is relevant to the issue on trial. It occurs to us that, having reference to the particular matter complained of, the rule which appellant seeks to invoke is that which limits the extent to which the acts and declarations of a coconspirator made or uttered out of court, in the absence of the accused, may be proved by other persons who saw or heard the acts or words, when they are sought to be used against one of the coconspirators or coprincipals who is on trial. This class of testimony is hearsay, and admissible only when brought within the recognized exception to the rule excluding hearsay. The bill of exceptions under discussion shows that Burl Kemp testified that, after the homicide, and after he and the appellant had disposed of the body of the deceased, "he, Kemp, took his clothes, and those of the appellant, and some...