Hardy v. State

• Decision Date: 19 November 1892
• Citation: 20 S.W. 561
• Parties: HARDY v. STATE.
• Court: Texas Court of Criminal Appeals

20 S.W. 561

HARDY v. STATE.

Court of Criminal Appeals of Texas.

November 19, 1892.

Appeal from district court, Fayette county; H. TEICHMUELLER, Judge.

Henry Hardy was convicted of murder in the second degree, and appeals. Affirmed.

N. M. Williams and W. S. Holman, for appellant. R. L. Henry, Asst. Atty. Gen., for the State.

DAVIDSON, J.

Appellant was convicted of murder in the second degree, and his punishment assessed at a term of seven years in the state penitentiary. By the witness Jackson the state proved that defendant, one week before the homicide, using a very opprobrious epithet in reference to an unnamed person, said, "He has got my pistol, and if he don't give it up to me I propose to kill him." This was objected to, because it was not shown that defendant referred to deceased, or that deceased was in possession of the pistol. The court states, in the bill of exceptions, he admitted the evidence upon the assurance of the district attorney that he would connect the testimony with the deceased, and that this was subsequently done. It is insisted by appellant that the above statement of the court is not sustained by the statement of facts. The rule in such cases is that when a bill of exceptions contradicts the statement of facts in any specified particular, the bill will be held to control, and to correctly state the disputed matter. Gaines v. Salmon, 16 Tex. 311; Smith v. State, 4 Tex. App. 626; Harris v. State, 1 Tex. App. 74; Briscoe v. State, 27 Tex. App. 193, 11 S. W. Rep. 113. It is equally true that the court's qualification or explanation of the bill of exceptions will control the recitals in the bill in so far as such explanation modifies such recitals. The court's qualification shows the testimony to have been clearly admissible; not only so, but the evidence itself discloses that the defendant had been to the residence of the deceased once or twice prior to the killing in order to secure the return of his pistol, and had failed to get it. The threat need not name the party threatened, where the other facts adduced give individuation to it, as was done in this case. Whart. Crim. Ev. (9th Ed.) § 756. Exceptions were reserved to the following remarks of the district attorney: "Gentlemen of the jury: I was in the grand jury room when the witness America Huff testified before the grand jury last fall, and I tell you Mr. Ledbetter and Mr. Hall are mistaken about her testimony. She testified the same then as now." The court qualifies the bill of exceptions by stating that the district attorney made the remarks complained of in reply to an argument by counsel for the defense based upon the failure of the first grand jury to indict, and to explain their failure by stating, in addition, that said first grand jury could not procure the attendance of certain witnesses who appeared and testified before the subsequent grand jury.

The evidence discloses the fact to be that the first grand jury, having failed to secure the evidence of the witnesses except America Huff, failed to indict the defendant. On cross-examination, defendant's counsel asked the witness Huff if she did not state to the first grand jury that defendant was sitting in his saddle with his right foot thrown across his horse's neck at the time he shot and...