Harvey v. State

• Decision Date: 11 March 1896
• Citation: 34 S.W. 623
• Parties: HARVEY v. STATE.
• Court: Texas Court of Criminal Appeals

34 S.W. 623

HARVEY v. STATE.

Court of Criminal Appeals of Texas.

March 11, 1896.

Appeal from district court, Hunt county; E. W. Terhune, Judge.

W. L. Harvey was convicted of murder, and appeals. Affirmed.

Perkins, Gilbert & Perkins and M. M. Brooks, for appellant. Mann Trice, for the State.

HENDERSON, J.

Appellant was tried and convicted of murder in the second degree, and his punishment assessed at 10 years in the penitentiary, and he prosecutes this appeal. The appellant assigns a number of errors, but we will only consider such as we deem important.

The court overruled the motion for a continuance presented by appellant, the ground for which was the absence of the following witnesses, Mrs. Paulina Harvey, Coon Williams, W. S. Archibald, Hampden, Swindle, and Knull. As to the witnesses Mrs. Harvey, Coon Williams, and W. S. Archibald, the diligence was the same. The application recites that they were present at the former terms of the court, but nowhere does the application state that either of the said witnesses was present at the term of the trial. The indictment in this case was presented at the June term, 1893, and this trial did not take place until the June term, 1895. The June term in 1895 began on the second Monday of June, and this trial was had on the 15th day of July, 1895. The application should have shown that said witnesses were present at the term of the court on the day the criminal docket was taken up, or at least on the day when the case against the appellant was set down for trial. If they were not present at said time, it was the duty of the appellant then to have sued out an attachment for said witnesses. As to the witness Mrs. Harvey, however, it is stated that she was sick at the time of the trial, otherwise she would have been present. Concede that the diligence as to her was sufficient, her evidence in regard to the condition of appellant's clothes on the day after the homicide, especially the knees of his pants, was rendered immaterial, in view of the fact that the state introduced no evidence indicating that appellant had crawled on his knees in the lane on the day of the homicide to a place of concealment; nor did the state make any issue as to the purpose for which the defendant may have carried his gun on the day of the homicide. Two witnesses for the appellant testify that his purpose in carrying the gun on said day was to kill a squirrel or bird for the sick wife of appellant. This was corroborated by the advice given in that regard by the doctor. The state introduced no countervailing testimony. Besides, this was the second application for continuance, and the testimony of Mrs. Harvey would have been only cumulative. As to the testimony of Coon Williams, who it was alleged in the application would testify that he saw the lane from which appellant is alleged to have committed the homicide about three days thereafter, and that he would testify as to the bushes being cut down. This same testimony was had from several witnesses, and his evidence on this subject would have been only cumulative. The same observations hold good with regard to the testimony of Archibald concerning the lane. Besides, as to him, it is shown in the application that he was temporarily absent in the state of Missouri and in the judge's explanation to the bill of exception it is shown that he had permanently removed to the state of Missouri. The application shows that appellant had only heard of his removal on the day before the trial. It is not shown, however, that he used any diligence to ascertain the fact of his removal. He should at least have shown some diligence during the term of the court to ascertain the whereabouts of this witness; and, if he had removed, some effort should have been made to procure his deposition. His testimony, however, at the former trial of the case, was accessible, but no effort was made by appellant to use the same. As to the other three witnesses, Hampden, Swindle, and Knull, it is not shown that they had removed permanently out of the state, and the appellant used their testimony delivered on a former trial of the case. The court did not err in overruling the application for a continuance, nor in refusing a new trial on that account.

Appellant proposed to show on the trial of the case by the witness Scott that he went with Knull to the place of the homicide, and proposed to show that when Knull came for him, and wanted to go around by the road, said witness Scott insisted on going straight through the field, because that was the direction in which he had heard the quarrel, and the firing of the gun. This, it seems to us, involves the admission of hearsay testimony; and we do not believe it was competent for the appellant to prove by the witness Scott that he told Knull at that time that he had heard shots fired in the particular direction in which the body was afterwards found, and that he insisted in going in that direction, because he had heard the shots fired in that direction. This witness Scott testified to the fact that he had heard shots from where he was working in the field in that particular direction at the time the deceased was alleged to have been killed. This was proof of the fact, and was all that appellant was entitled to, except the further fact that they went to the scene of the homicide in that same direction, and this was admitted. What Scott said at the time was properly excluded.

Appellant also insisted on proving by the witness John Cherry that the appellant, at the time of his arrest, did not make any effort to run away. The testimony on the part of the state fails to show flight on the part of the appellant after the alleged homicide. No effort was made in that direction. Appellant himself showed a voluntary surrender. This was affirmative, and which he was entitled to show, and it negatives the contrary.

It appears that on the cross-examination of the appellant's witness Mattie Chester she testified that, according to her recollection, it was about the 10th of May, 1892, the killing occurred. Appellant insists that he had a right to ask the witness if the killing occurred on the 18th day of May, 1893, that she was mistaken about her location of the time as May 10, 1892. While it was permissible for the appellant, on re-examination of the said witness, by proper questions to the witness to show that she was mistaken as to the date fixed by her in her cross-examination, yet we think that the question as it is presented in the record was clearly leading, as it informed the witness that the killing did take place on the 18th of May, 1893. Unless, for some reason further than is apparent in the record, authorizing appellant to lead this witness, we think the action of the court was correct.

The state was permitted, over the objection of the appellant, to prove by the witness J. J. Terrell a conversation between William Gann and appellant. The objection urged by appellant is that said conversation involved hearsay evidence, in that William Gann asked appellant a question. Of course, declarations of appellant in that connection were admissible, and his statement made would hardly be...