Hamilton v. State

• Decision Date: 27 February 1918
• Docket Number: (No. 4578.)
• Parties: HAMILTON v. STATE.
• Court: Texas Court of Criminal Appeals

201 S.W. 1009

HAMILTON v. STATE.

(No. 4578.)

Court of Criminal Appeals of Texas.

February 27, 1918.

Rehearing Denied March 27, 1918.

Appeal from District Court, Newton County; W. T. Davis, Special Judge.

Albert Hamilton was convicted of murder, and appeals. Affirmed.

Forse & Ferguson and A. L. Shaw, all of Newton, and Martin & McDonald, of Austin, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.

MORROW, J.

Appellant was convicted of murder of Ben Holmes. The homicide took place at a dance at the residence of Joe Roff. Appellant and his two sisters and his brother were at the dance, and in an altercation in which the deceased and appellant and appellant's brother took part deceased was stabbed with a pocket knife one time, of which he expired. The theory of appellant was that deceased was at fault in the quarrel, and that he made an assault on the brother of appellant, striking him with a lantern, and that appellant struck in defense of his brother. The issues of manslaughter and defense of another were properly submitted to the jury.

An application for change of venue was made and overruled. Evidence was heard controverting its truth, but the evidence is not brought before this court in a manner that it can be considered. Article 634, C. C. P., is as follows:

"The order of the judge granting or refusing a change of venue shall not be revised upon appeal, unless the facts upon which the same was based are presented in a bill of exceptions prepared, signed, approved and filed at the term of the court at which such order was made."

This article has frequently been held to deny this court authority to review action of the trial judge in refusing change of venue where the evidence heard on the application was not verified and filed during the term at which the case was tried. Where this has not been done, we are not privileged to consider it. Bowden v. State, 12 Tex. App. 246, and numerous other cases listed in Vernon's C. C. P. p. 342, and Branch's Ann. P. C. p. 181, § 301.

There was evidence that at the time of the homicide, which was about 12 o'clock at night, the deceased was standing on the porch or gallery of the house, holding a lantern in his hand; that he had forbidden Henry Hamilton, the brother of appellant, coming into the house; and that Henry Hamilton was striking at the deceased's feet with a pocket knife. This was a controverted issue, as was also whether deceased either struck Henry Hamilton or struck at him with a lantern. The state introduced in evidence the shoes worn by deceased at the time he was killed. The record does not make it clear as to the condition of the shoes. It appears that when they were first offered in evidence the court declined to admit them, but subsequently did so. At the time they were offered it was shown that no one had made any cut marks on them since the homicide; that nothing had been done to them, except they had been washed. Whether they had or had not cut marks on them is not disclosed. In this state of the record we are unable to say that there is error shown. If they had cut marks on them it would not have been error to admit them, as they would have tended to corroborate the state's testimony that Henry Hamilton was striking at deceased's feet with a knife he had in his hand, which was also controverted. If they had no cut marks on them their introduction could not have been harmful, as they would have tended to contradict the theory of the state. Be this as it may, the matter as presented shows no harmful error.

The remark of the county attorney that the defendant drove his knife into the heart of Ben Holmes without provocation was not, as shown by the bill, such an argument as would justify a reversal of the cause. The ground of objection was that there was no evidence that deceased was stabbed in the heart. It does not set out the evidence upon the subject, and the fact that there was no stab in the heart is not verified by the bill. It has often been declared that a mere statement of the ground of objection is not a verification of the fact. It simply shows an objection was made. It should show that the objection was founded in fact. Smith v. State, 4 Tex. App. 626, and other cases listed in Branch's Ann. P. C. p. 134, § 209. There was evidence that deceased was stabbed in the breast, and that he died in a very few minutes after the wound was received. There is also evidence that there was an absence of provocation by the deceased. This, of course, was a controverted issue. In view of this condition of the record it cannot be said that the remark of the county attorney, even if it did not accurately state the evidence, was so prejudicial that it could not have been cured by special charge, and, none having been requested, the complaint cannot be sustained. Kennedy v. State, 19 Tex. App. 634; Felder v. State, 5 Tex. Cr. R. 145, and other cases cited in Branch's Ann. P. C. p. 204, § 362.

The conclusion of the trial judge on hearing the evidence that there was no injurious conversation by members of the jury with an outsider is sustained by the evidence introduced thereon. Fox v. State, 53 Tex. Cr. R. 150, 109 S. W. 370. The matter complained of is that an outsider entered the jury box and had a whispered conversation. The facts show that an old man inadvertently got among the jurors, and, upon learning he was out of place, excused himself and left. Another complaint is that while the jury was forming the sheriff took them to a meal, where there were a number of other people dining. It appears affirmatively that he took them to a separate table, and that there was no mingling or communication with them, and that he was present with them. We think that the record discloses that the state discharged the burden which rested upon it to show an absence of injury. Parshall v. State, 62 Tex. Cr. R. 177, 138 S. W. 759, and other cases cited in Vernon's C. C. P. p. 791. We have examined this record, though it was not filed within the time to require it. Black v. State, 41 Tex. Cr. R. 185, 53 S. W. 116.

The bill complaining of an argument with reference to the testimony of Leonard Roff, as qualified by the court showing that the argument was invited, presents no error. Smith v. State, 21 Tex. App. 277, 17 S. W. 471, and other cases listed in Branch's Ann. P. C. p. 205, § 363. As presented in the bill, the fact that the state's attorney asked Leonard Roff if he did not wink at appellant while testifying at the examining trial does not show reversible error. It appears from the statement of facts, which is referred to, that the witness said he did not remember doing so. If the answer had been in the affirmative, it is not clear that it would not have been admissible as tending to show bias.

The homicide was occasioned by a stab with a pocket knife, which was introduced in evidence. The complaint of the introduction of the knife in evidence cannot be sustained. The statute (article 1147, P. C.) makes it incumbent upon the state, where the instrument producing homicide is not per se a deadly weapon, to prove by evidence that in using it the accused intended to slay the deceased. The decisions excluding the clothing worn by the deceased under certain circumstances are based upon the proposition that such...