Handy v. State

• Decision Date: 19 April 1939
• Docket Number: No. 20298.,20298.
• Citation: 138 S.W.2d 541
• Parties: HANDY v. STATE.
• Court: Texas Court of Criminal Appeals

138 S.W.2d 541

HANDY v. STATE.

No. 20298.

Court of Criminal Appeals of Texas.

April 19, 1939.

Rehearing Denied April 3, 1940.

Appeal from District Court, Hidalgo County; Bryce Ferguson, Judge.

Placido Handy was convicted of murder, and he appeals.

Affirmed.

W. Kennedy Smith, of Raymondville, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

GRAVES, Judge.

This is the second appeal from a charge of murder, in both of such instances the death penalty was given by the jury. See 134 Tex.Cr.R. 162, 114 S.W.2d 878.

There is but one question presented herein for review, and that is the ruling of the trial court in refusing appellant's application for a change of venue. The application contained an allegation that there existed against appellant so great a prejudice that he could not obtain a fair trial in Hidalgo County. That the grounds of such prejudice were based upon the publicity given by the local newspapers of the trials that had been heretofore had of this and a companion case against one Ascencio Martinez, as well as other newspaper stories relative to the killing of this same person for whom this appellant was being tried. That the newspapers had borne stories relative to finding the body of this deceased person in the Rio Grande river; of the attempts to ascertain who was guilty of having caused the death of such person; of the arrest of appellant and five of his supposed confederates in the crime; of their statements relative to such crime; of the result of the first trials of appellant and Martinez, and of the reaction locally when these cases were reversed and remanded by this court. This application was supported by the oaths of W. D. Woodroof and D. C. Earnest as compurgators, and controverted by the district attorney who attacked by affidavit and otherwise the means of knowledge of such compurgators, and appellant's only bill of exceptions relates to and complains of the court's action in overruling his motion for such a change of venue, the burden of his motion being that on account of such widespread newspaper publicity given to such trials and series of events that this appellant's cause had been prejudged by the citizenship of Hidalgo County, and that he could not obtain a fair and impartial trial therein.

The State, through its district attorney, vigorously combated such motion, and seems to have assumed the laboring oar in the hearing relative thereto.

D. C. Hogan testified that both Mr. Earnest and Mr. Woodroof, appellant's compurgators, had no means of knowledge towards the mental attitude of a large majority of qualified jurors in Hidalgo County; that they had no opportunity to contact such jurors save within a limited scope in and around the community of Edinburg and the northeastern part of said county. That under the last Federal census Hidalgo County was given a population of 77,004 and same had greatly increased since such census; there were ten incorporated towns in said county, four of which were larger in population than Edinburg; that the county in area embraced 1874 square miles, and contained numerous jurors who had never heard of these cases, or who had no prejudice relative thereto; that the appellant is not well known in the county; that he is of Latin-American extraction, and practically the only jurors who know him will be those of the same extraction; that he can obtain a fair and impartial trial before a jury in Hidalgo County.

It was agreed by counsel for both sides that there were eleven incorporated towns in this county, and that their total population was 42,007, census of 1930.

The editors and circulation managers of the daily papers in Hidalgo County and its immediate vicinity testified relative to their different publications of the events surrounding these trials; they claimed such accounts were accurate and sometimes contained verbatim copies of certain portions of the testimony; that no editorials were written relative thereto however, and that they were only interested in same from a news viewpoint; that they made no effort to create a prejudice in the minds of the people, and did not think they had done so; that they had a combined total circulation of approximately 32000 daily papers; that they knew of no reason why a jury could not be selected in such county that would give the appellant a fair and impartial trial.

Hon. C. K. Richards, a practicing attorney who lived at McAllen, testified that he had been living at McAllen about six months, and in the County of Hidalgo almost two years, and in the Valley since 1925, and has a considerable acquaintance over the county; that he had heard these cases frequently discussed, and all such persons mentioning same believed that these Mexicans were guilty, and that he did not believe the appellant could get a fair trial in Hidalgo County. On cross-examination he said that he had attended one of the trials; that he had not discussed the case with any considerable number of prospective jurors, but that it was the general consensus of opinion on the streets of Edinburg that a fair trial could not be had; that he believed such opinion was influenced by newspaper accounts, as none of the people whom he heard discussing such matters knew anything of the facts; that he knew of no racial or religious prejudice, or prejudice of any other kind against the appellant. That his opinion was based on newspaper articles, and was subject to be rebutted.

Five additional witnesses were then offered by appellant, all of whom testified that based on newspaper accounts they had formed an opinion that appellant was guilty, and they did not think he could obtain a fair trial in such county; that they had never heard of any prejudice,—political, racial, religious or otherwise,—existing against this appellant. One of the witnesses, Mr. Hemphill, testified that he had heard several people say "that a bunch of us ought to get together and go and get these men and short circuit the legal procedure;" that he did not know their names, and that he felt that way about it, but felt sure that everybody else in the county did not feel the same way. That witness thought the case had heretofore been reversed and dismissed by the higher court, and therefore thought that the men would never again be tried for a crime that they had confessed to, and he was outraged about such proceedings, and thus thinking he would have felt the same way about the case had it happened in Dallas or anywhere else in the State.

Mr. Livingston, one of the above witnesses, testified that he had no prejudice against the appellant or his case. Mr. Earnest, the third witness, testified that he did not believe anybody could get a fair trial in Hidalgo County in an election year, but knew of no prejudice against this particular defendant. That witness could give defendant a fair trial, had no prejudice against him, and from what he had read he did not believe defendant was guilty, and the people that he had talked to expressed doubt as to his guilt.

Mr. D. C. Hogan, a State's witness, said that he was assistant county auditor, had lived in the county since 1921, in public work practically all the time, having been an assistant county attorney; that he knew both Mr. Richards and Mr. Earnest, the two compurgators, and knew their probable acquaintance in the county, and means of knowledge of the sentiment of the jurors therein. Mr. Earnest has not driven an automobile for the past three or four years, and was not familiar with the sentiment of such jurors outside of the immediate locality of the city of Edinburg, and witness did not think that Earnest's information and knowledge of such citizenship was sufficient to enable him to express the sentiment of the citizenship of the county relative to this case or relative to affording the defendant a fair and impartial trial. Witness knew of no prejudice of any kind existing in the county that would prevent a fair and impartial trial in this cause. Mr. Earnest had been tax assessor of the county, and had been a deputy in the county tax assessor and collector's office; that he knew a lot of people in the county. Witness had a fixed opinion in the matter, but if he had only obtained such opinion by reading newspaper accounts, he would be able to set aside such newspaper accounts; that he had heard no expressions of innocence relative to the defendant, and had heard expressions of opinions as to his guilt "if what I have heard is true". Witness thought that a jury of qualified jurors could have been gotten out of a venire of 100 to 150 men. There were between 8000 and 10000 qualified jurors in Hidalgo County; the case has not been widely discussed in the county, but only in the populated centers.

The witness Hogan also knew the compurgator C. K. Richards, who had resided in the county not over three or four years. He did not think him qualified to pass upon the qualifications of the prospective jurors in this case; Mr. Richards would only come in contact with those persons whom he reached in his law practice, and did not have a very extensive acquaintanceship over the county.

J. R. Ragland, a farmer and trucking contractor, had lived in the county nineteen years, knew people in various rural parts of the county, and worked a great many Latin-Americans; had heard of these cases, but never had discussed them with anyone; never heard this case mentioned, knew of no prejudice of any kind in the county that would prevent a fair and impartial trial being given this defendant; thought he could get a fair trial. He had read something in the paper about this case, but that would not influence him; he could sit as a juror in the case without any prejudice regardless of what he had read in the papers.

Gaston Riley was in the restaurant business in McAllen, did a rather large business, knew many people and had many friends; had read the headlines in the papers about the case; he believed the defendant could...