Henderson v. State

Citation283 S.W. 497
Decision Date07 October 1925
Docket Number(No. 8270.)
PartiesHENDERSON v. STATE.
CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas

Appeal from District Court, Kaufman County; Joel R. Bond, Judge.

Joe Henderson was convicted of murder, and he appeals. Affirmed.

Thos. R. Bond, of Terrell, Young & Stinchcomb, of Longview, Johnson, Edwards & Hughes, of Tyler, Wynne & Wynne, of Kaufman, Shields & Anthony, of Grand Saline, Rasbury, Adams & Herrell, of Dallas, and Cooley & Crisp, of Kaufman, for appellant.

W. R. Jones, of Brownsville, Tom Garrard, State's Atty., of Lubbock, and Grover C. Morris, Asst. State's Atty., of Devine, for the State.

MORROW, P. J.

Appellant was convicted of murder, and his punishment fixed at confinement in the penitentiary for a period of 5 years.

There have been two previous appeals. The judgments of conviction were for the same offense. In the first trial the penalty assessed was confinement in the penitentiary for 99 years. The second trial resulted in a verdict assessing the punishment at 45 years in the penitentiary. See 229 S. W. 535, 89 Tex. Cr. R. 21, and 244 S. W. 1030, 92 Tex. Cr. R. 607.

The facts leading to and attending the tragedy are set out in some detail in the opinions of this court in the reports mentioned, and a restatement of them is not deemed essential in disposing of this appeal further than will be done in connection with the various bills of exception. The homicide occurred in Gregg county. There was a change of venue to Van Zandt county after the first trial, and to Kaufman county after the second trial.

Some of the bills of exception relate to the procedure attending the examination of the witness Schoults. It is recited that counsel for the state, before beginning the examination of the witness said:

"At this stage we desire to introduce, first, the statement of facts as the record of the stenographic report of the testimony of the official statement of facts, taken at the trial of the defendant at Longview, which statement subsequently was filed with the clerk and used as the official stenographic report of the testimony taken on the trial in the Court of Criminal Appeals of Texas."

Objection was made to this statement of the attorney for the state. The court said, "I sustain the objection." Appellant's counsel then said, "I am introducing the record"; and turned to the witness Schoults and said, "Examine that paper, Mr. Schoults." These remarks of the state's attorney were made the subject of objection as an unwarranted effort to convey knowledge to the jury of the result of the former trial. Upon direct examination this witness testified that he was county attorney of Gregg county and participated in the first trial of the appellant and heard Henry Sargent testify as a witness in behalf of the state; that Sargent was now dead. There was exhibited to the witness a paper which, upon examination, he stated, "I have had occasion to read this testimony heretofore from this record." On cross-examination the witness stated that the paper in his hand was the transcribed notes of the testimony given by the witness Sargent upon the first trial of appellant, which notes had been reduced to narrative form by the official stenographer. Archer, the official stenographer, was then called. He identified the paper mentioned and gave testimony to the effect that he had correctly reported the testimony of Sargent and transcribed it in question and answer form, from which the narrative statement of facts was made; the shorthand notes having been destroyed by fire.

The negro Sargent having given testimony upon the former trial of the appellant's case and having since died, it was the right of the state to reproduce upon the present trial the testimony of the deceased witness. See Porch v. State, 99 S. W. 1122, 51 Tex. Cr. R. 7; Young v. State, 199 S. W. 479, 82 Tex. Cr. R. 257. As a predicate for the reproduction of his testimony, it was deemed necessary to prove that the witness was dead; that there had been a previous trial of the appellant at which Sargent, after being sworn as a witness, gave testimony. It was also necessary, by competent evidence, to prove his testimony in substance. To lay the predicate mentioned, the state introduced the witness Schoults; and, to prove the testimony given by Sargent, the official court stenographer was called as a witness. It being essential in the reproduction of the testimony to prove that the witness Sargent had given the testimony at the former trial, it seems obvious that while by this means knowledge that there had been a previous trial necessarily came to the jury, it could not logically be held to violate article 843, C. C. P., of the statute which inhibits comment upon the result of the former trial, or the use of it as a basis for a presumption adverse to the accused. See opinion of Presiding Judge Davidson in Tollett v. State (Tex. Cr. App.) 60 S. W. 964; also the case of Grimes v. State, 141 S. W. 261, 64 Tex. Cr. R. 65.

It is insisted, however, that in developing the present case and referring to the appeal from the result of the former trial in which it was revealed that there was a verdict of guilty, the procedure was violative of the statute mentioned, namely, article 843, C. C. P., and must necessarily vitiate the conviction. The statute in question reads thus:

"The effect of a new trial is to place the cause in the same position in which it was before any trial had taken place. The former convictions shall be regarded as no presumption of guilt, nor shall it be alluded to in the argument."

The opinions of this court reveal many instances in which, by reversal of the judgment, it has sought to protect the accused against the harmful transgression of the inhibition contained in the statute. See Benson v. State, 118 S. W. 1050, 56 Tex. Cr. R. 52; Wyatt v. State, 124 S. W. 929, 58 Tex. Cr. R. 115, 137 Am. St. Rep. 926; Pierce v. State, 222 S. W. 565, 87 Tex. Cr. R. 379. On the other hand, the court has recognized the fact that there may be an inadvertent or incidental reference to the former conviction of the accused which would not warrant a reversal. This principle was announced in the case of Baines v. State, 66 S. W. 847, 43 Tex. Cr. R. 491, and was reiterated and emphasized in the opinion of Judge Ramsey in Smith's Case, 106 S. W. 1161, 52 Tex. Cr. R. 344, 15 Ann. Cas. 357, from which the following quotation is taken:

"We think the true rule is that where, as in this case, the testimony supports the verdict, and the charge of the court properly submits the case to the jury, that a verdict ought not to be set aside for every incidental and casual mention of a former trial or a former conviction, and that in no case should it be set aside in a case tried according to law where the conviction is supported by the testimony, unless the court may fairly and reasonably see in the light of all the circumstances that such reference and discussion did or might have prejudiced the appellant's case. It is possible that there is some language in some of the decisions not wholly in accord with the views here expressed, but on full consideration this is believed to be the correct rule."

The instances are numerous where the rule stated in Smith's Case, supra, has since been approved. Among them are Coffman v. State, 165 S. W. 939, 73 Tex. Cr. R. 295, in which the opinion of affirmance was unanimous.

A witness, when asked if she had testified on the former trial, answered that she did at the time the accused got the death sentence. The court instructed the jury to disregard the remark. The matter was properly brought up by bill of exceptions and rejected as a reason for reversal. Analogous cases are Arnwine v. State, 114 S. W. 796, 54 Tex. Cr. R. 213; Morrison v. State, 47 S. W. 369, 39 Tex. Cr. R. 519; Oates v. State, 121 S. W. 370, 56 Tex. Cr. R. 575.

The production of the transcribed notes of the stenographer, the identification of them, and the proof of the facts related by Sargent by the witness who heard his testimony, occur to us to have been proper means of bringing the matter in hand before the jury. The fact that they incidentally resulted in conveying to the jury the fact that there had been a previous trial and that it had resulted adversely to the appellant is not, we think, violative of article 843, C. C. P. After the witness Archer had given the evidence mentioned, Schoults was recalled for further cross-examination. He testified that, before giving testimony on the former trial, the negro Sargent had been sworn; that of this fact he had an independent recollection; that, while there had been some 75 or more witnesses who gave testimony in the trial, his recollection bore directly upon the witness Henry Sargent. Witness Schoults was interrogated in great detail with reference to his recollection touching the administration of the oath to Sargent. The inquiry led to statements with reference to the locality of the various witnesses, the place at which court was held, and whether the witnesses were sworn individually or altogether, and various other details. Among other things, the witness said:

"I can't say just where the negro was standing, but I know when he was brought into the courthouse and why he was brought there, but I could not say whether he was standing on the right or the left of the clerk or right in front of him. I would not attempt to say what part of the house he was in. I was not looking at him all the time, but I know the negro was in there and they told him to stand up. I heard all the witnesses told to stand up and be sworn."

And added:

"And I can tell you why I remember it if you want me to do that; if you want to know why I know he stood up with the rest of the witnesses and was sworn, I can tell you."

Counsel told him "No," that he did not want to know why he knew, but wanted to test his...

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