Harris v. State

• Decision Date: 17 April 1912
• Citation: 148 S.W. 1074
• Parties: HARRIS v. STATE.
• Court: Texas Court of Criminal Appeals

148 S.W. 1074

HARRIS v. STATE.

Court of Criminal Appeals of Texas.

April 17, 1912.

On Motion for Rehearing, June 26, 1912.

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Appeal from District Court, Washington County; Ed. R. Sinks, Judge.

Andrew Harris was convicted of murder in the first degree, and he appeals. Affirmed.

R. Lyles, of Cameron, and Mathis & Teague, of Brenham, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

The appellant was indicted, tried, and convicted of murder in the first degree, and his punishment assessed at imprisonment in the penitentiary for life. This is the second appeal in this case; the opinion of the court on the former appeal being reported in 137 S. W. 373.

On this trial appellant filed an application for a change of venue. Evidence was heard, and from a careful review of same we cannot say the court erred in overruling the plea. This is a matter addressed to the sound discretion of the trial judge, and, unless on appeal it is clear that the court has abused his judicial discretion, his ruling will be sustained. Tubb v. State, 55 Tex. Cr. R. 617, 117 S. W. 858; Bohannon v. State, 14 Tex. App. 302; Martin v. State, 21 Tex. App. 10, 17 S. W. 430; Dupree v. State, 2 Tex. App. 613.

In examination of the juror Loesch, he answered all the statutory questions in a way that would show he was a qualified juror. On cross-examination it developed that his brother had been a juryman when appellant was tried before, and that this brother had told him that appellant was guilty. However, he stated this would have no influence with him and he had no opinion in the case. Appellant challenged the juror for cause, which challenge was by the court overruled, when appellant peremptorily challenged him. There is no evidence that any objectionable juror was forced on appellant by this action of the court; in fact, in the order of the court approving the bill he says that only one juror was chosen after appellant exhausted his challenges, and if this juror was objectionable to appellant it was not made known to him. The fact that one of his brothers had been on the jury that had formerly tried appellant, and had told Mr. Loesch that in his opinion appellant was guilty, would not be a ground of challenge for cause under article 673 of the Code of Criminal Procedure, when the juror answers that he has no bias or prejudice in favor of or against the appellant; that from hearsay or otherwise he has formed no conclusion as to the guilt or innocence of the appellant; and that what his brother had told him would have no influence with him in deciding the case. Had the juror been really disqualified, under the decisions of this court, this matter would present no error, as it is not made manifest by the record that an objectionable juror was forced on appellant. Hudson v. State, 28 Tex. App. 323, 13 S. W. 388; Rippey v. State, 29 Tex. App. 37, 14 S. W. 448; Sutton v. State, 31 Tex. Cr. R. 297, 20 S. W. 564; Kramer v. State, 34 Tex. Cr. R. 84, 29 S. W. 157; Jordan v. State, 37 Tex. Cr. R. 224, 38 S. W. 780, 39 S. W. 111.

While the witness Dr. P. D. Barnhill was testifying, the state was permitted to prove by him that deceased's skull was crushed, and in answer to the question, "What sort of blow would be necessary to produce that?" was permitted to state, "Take a tremendous blow." The objection was that it was a matter of opinion. The witness was a practicing physician and had been so for a number of years, and as such he would be permitted to give his opinion as an expert.

It appears from the record that the evening of the arrest, or the morning thereafter, a trunk was searched in the house where appellant resided, and in which clothes were found with his name thereon, and in the trunk a certain vest was found that Mr. Koch and others testified was the vest of one of the deceased persons—Mr. Rudolph's vest. In examination of the witnesses, the prosecution would hand the vest to a certain witness and ask them if they had ever seen the vest, and the witnesses were permitted to answer that it was Mr. Rudolph's vest. The objection urged was, instead of handing the vest to the witness, the witness should have been required to describe the vest owned by Mr. Rudolph before handing it to the witness. The witnesses had testified they were present when the vest was taken out of the trunk, and identified it as the vest belonging to one of the deceased parties, and the bills present no error. Kidwell v. State, 35 Tex. Cr. R. 264, 33 S. W. 342.

While the witness John Koch was testifying, he was asked: "Did you up there in Mr. Searcy's office state that Mr. Rudolph was about the size of Mr. Searcy?" and he answered, "Yes, sir." This was objected to on the ground that it was hearsay, as appellant was not present in Mr. Searcy's office when the remark was made. The bill is incomplete, in that it does not show in what connection the testimony was offered. In Thompson v. State, 29 Tex. App. 208, 15 S. W. 206, it was held that a bill of exceptions to be considered must sufficiently set out the proceedings and attendant circumstances to enable the court to know certainly that error has been committed. So far as this bill discloses, that may or may not have been material testimony. Certainly, under the qualification of the court the bill presents no error, as the testimony would be admissible, as it was shown that Mr. Searcy tried on the vest, and this was intended to show that the witness had thus described deceased prior to the time he tried on the vest.

In another bill it is complained that Sam Craig, a witness for the state, on cross-examination was asked if he (Craig) had not made a complaint against a negro named Richard Stilwell, charging him with the same offense, which question was objected to by the state. The bill does not disclose what the answer of the witness would have been, and is therefore insufficient to present any question for review. Love v. State, 35 Tex. Cr. R. 27, 29 S. W. 790; White v. State, 32 Tex. Cr. R. 625, 25 S. W. 784; Childers v. State, 37 Tex. Cr. R. 392, 35 S. W. 654; Adams v. State, 35 Tex. Cr. R. 285, 33 S. W. 354; Cooksie v. State, 26 Tex. App. 72, 9 S. W. 58. This court cannot surmise what the answer of the witness would have been, nor its materiality if the witness had answered that he did make such a complaint.

In another bill it is complained that this witness was asked "if that undershirt and this jumper had been washed?" to which he answered, "Yes, sir," which was objected to on the ground that he was not an expert. These questions and answers are all that are in the bills. The connection is not shown. It does not appear by them what shirt and jumper the evidence had reference to, who owned them, where they came from, or any other fact that would enable us to pass on the matter intelligently. In McGlasson v. State, 38 Tex. Cr. R. 351, 43 S. W. 93, it was held that a bill of exceptions cannot be aided by the statement of facts filed. They should be so explicit as to enable the court on appeal to fully understand all the facts upon which the correctness or error of the rulings depends; otherwise they will not be considered on appeal. Livar v. State, 26 Tex. App. 115, 9 S. W. 552, and cases cited in section 857, White's Annotated Code of Crim. Proc. As to whether an article has been washed or not is not one of expert testimony. It is a matter within the knowledge of all mankind, and any witness would be permitted to state whether or not a given article had the appearance of being washed. Sections 511 and 512, Wharton's Law of Evidence.

Bill No. 10 complains: "That while the state's witness Adolph Krueger was upon the stand, upon direct examination, the following questions were asked said witness: `Q. What did you find in the trunk that time, Mr. Krueger? A. I opened the trunk, as I opened the trunk there was a little box in there, on top. I set the little box out, raised it out, and there was a truss laying right on top. (Here counsel handed witness truss.)' Counsel for defendant objected to state's counsel handing the witness the truss for the reason that defendant is entitled to have him describe the truss that he found; but to give him the truss and ask him to examine it is putting the answer right in the witness' mouth. The witness ought to be first made to describe the truss, and then let counsel hand him the truss." This is all the bill. It does not show whether any other question was asked the witness. The witness would certainly be permitted to state what he found, if the evidence was admissible for any purpose. As presented in this bill, there is no error in the bill, even if counsel handed the witness a truss and he testified that it was the truss he found in the trunk, which fact the bill does not make manifest, and we cannot aid it by reference to the statement of facts or by indulging in inference. Attaway v. State, 31 Tex. Cr. R. 475, 20 S. W. 925; Gonzales v. State, 32 Tex. Cr. R. 611, 25 S. W. 781; Hooper v. State, 29 Tex. App. 614, 16 S. W. 655; Eldridge v. State, 12 Tex. App. 208; Walker v. State, 9 Tex. App. 200; McGlasson v. State, 38 Tex. Cr. R. 351, 43 S. W. 93.

Bill No. 13, as qualified by the court, would complain of the following questions to the witness Mrs. Annie Weyand and her answers: "State whether or not you recognized this vest as belonging to anybody? A. Yes, sir. Q. Whom did you recognize it as being the property of? A. To my father." These questions were not subject to the objection that they were leading.

While the witness Mrs. John Koch was testifying, she was permitted to state she had made her husband some shirts out of cloth, and he wore them, and they stained his underclothing blue. In the bill it is not shown in what connection this testimony was offered, and the bill is incomplete in a number of respects; but, if we turn to the testimony of the witness, it appears she testified: "I was present when my mother bought some...