Head v. State

• Decision Date: 01 March 1899
• Citation: 50 S.W. 352
• Parties: HEAD v. STATE.
• Court: Texas Court of Criminal Appeals

50 S.W. 352

HEAD v. STATE.

Court of Criminal Appeals of Texas.

March 1, 1899.

Appeal from district court, Fannin county; E. D. McClellan, Judge.

C. C. Head was convicted of murder in the second degree, and he appeals. Affirmed.

Thos. P. Steger, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.

BROOKS, J.

Appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the state penitentiary for a term of 10 years, and he prosecutes this appeal.

The first error assigned by appellant is the action of the court in overruling his motion for continuance. Without reviewing the facts that appellant proposed to prove by the absent witnesses, we deem it sufficient to say that the application was not sufficient, and the court did not err in refusing to grant the same.

Appellant's second assignment of errors complains of the action of the court in permitting the state to introduce the hat worn by deceased at the time of the killing. The ground of appellant's objection is that the state failed to show that the sheriff had possession of the hat from the time of the homicide up to the time of the trial. The sheriff, being the witness offered by the state to prove said fact, swore that he did not remember who gave the hat to him,—whether Tom White or Will Myers (deputy sheriffs),—and did not remember when said hat was turned over to him, and from whose possession it came into the hands of said deputy sheriff. And state's witness Will Myers (deputy sheriff) swore that he and Tom White brought defendant to jail the night of the day of the homicide, and that he knew neither of them brought the hat at that time, that neither of them turned it over to Sheriff Ridling on that occasion, and that the first time he saw the hat after he saw it at the scene of the killing was at the examining trial, in Bonham, November 22, 1897,—two weeks after the homicide. Appellant objected to the introduction of the hat because its custody and care were not accounted for, and because there was too great an opportunity for tampering with it between the time of the homicide and its introduction in evidence in this case, two weeks later, and because the state offered, in connection with the hat, to prove by witnesses that there was powder-burn on said hat, which was also objected to by defendant. Appellant's objections were overruled, and the hat admitted in evidence, and be reserved his exception. The evidence discloses the fact that the hat introduced by the state in the trial of this case was the same identical hat that deceased wore at the time of the homicide, and that it is in the same condition, practically speaking, that it was at the time of the homicide. There was no error in the court's admitting this hat as evidence in the trial of the case.

Appellant's third assignment of error complains of the action of the court in permitting the witness R. D. Chaney to testify that a 32 or 38 caliber pistol would not powder-burn over five or six feet distant. The testimony of the witness Chaney, as disclosed in the record, shows that he had been handling firearms for a long time; and he states that a 32 or 38 caliber pistol would not powder-burn for a greater distance than five or six feet. We do not think the court erred in permitting the witness to so testify. He had qualified himself by long experience to testify as to the use of firearms, and that he knew how far a pistol would powder-burn an object. The testimony of experts about matters of this kind is admissible, and it certainly requires experience in the handling of firearms to know what would be the effect of firing one at certain distances. Meyers v. State, 14 Tex. App. 35; Com. v. Sturtivant, 117 Mass. 122.

Appellant's fourth assignment of error complains of the failure of the court to give charges Nos. 1, 2, 3, and 4. We think the charge of the court is an admirable exposition of the law in all its phases, and that the same...