Henrie v. State

• Decision Date: 01 January 1874
• Citation: 41 Tex. 573
• Parties: G. W. HENRIE v. THE STATE.
• Court: Texas Supreme Court

41 Tex. 573

G. W. HENRIE

v.THE STATE.

Supreme Court of Texas.

1874.

APPEAL from Palo Pinto. Tried below before the Hon. A. J. Hood.

November, 1872, G. W. Henrie was indicted for the murder of Michael Cannon.

At the March term, 1874, there was a mistrial, and the accused admitted to bail. At the July term following, defendant asked a continuance of his first application, as follows.

Now comes G. W. Henrie, defendant in the above cause, and says that he cannot go safely into trial at the present term of court, for want of the material testimony of E. A. Koefer and E. Alexander, who are material witnesses to the defense; that the residence of said witnesses are to affiant unknown; that defendant did, on the 4th day of June, 1874, apply to the clerk of the District Court of Palo Pinto county for a subpœna for said witnesses, and placed the same in the hands of J. H. Carothers, sheriff of Palo Pinto county; that said subpœna was returned by said sheriff: said witnesses not found. Affiant states that he expects to prove by A. E. Koefer and E. Alexander, surgeons, who attended on the deceased, Michael Cannon, at the time he made the statement filed herein as the dying declarations, that at the time said deceased made said alleged dying declarations said deceased was not conscious of approaching death, and, in fact, that he, deceased, was told by said surgeons that there was hope of his (deceased's) recovery, and that said deceased, at the time he made said statements, alleged to be dying declarations, and for several days thereafter, expressed a hope and expectation of recovery, and stated that he, deceased, expected to live to be able to prosecute this defendant for the injury inflicted on him, deceased.

Affiant further states that said Koefer and Alexander were, at the time of said statement, respectively surgeon and assistant surgeon U. S. A., stationed at the post of Fort Griffin, Shackleford county, Texas, and attendant upon said Cannon, who was a private in the United States army, and that said surgeons, from professional relation to said deceased, were more intimately informed as to and had better opportunity to know the state of the deceased's mind at the time he made said statements than any person else; that said witnesses then, and until lately, resided at Fort Griffin, in said county.

And affiant further states that he cannot go safely into trial for want of the further material testimony of one J. A. Melmine, whose residence is at Fort Griffin, Shackleford county, Texas, but who is now temporarily absent; that the defendant, on the fourth day of June, 1874, procured from the clerk of the District Court of Palo Pinto county a subpœna for said witness, and placed the same in the hands of the sheriff of Palo Pinto county, who returned the same: witness not found. Affiant expects to prove by said witness that he, defendant, was in company with said Michael Cannon, deceased, when shot, and that this defendant did not do said shooting.

Affiant further states that the above and foregoing named witnesses are not absent by the procurement or consent of the defendant; that this application is not made for delay.

Affiant further states that all of the facts and statements above stated, which he expects to prove by said witnesses, are material to his (defendant's) defense, and in point of fact true.

Defendant respectfully refers the court to the subpœna for said witnesses herein filed, marked Exhibit “A,” and prayed to be taken as a part of this motion.

Affiant further states that this is his first application for a continuance, and the testimony sought cannot be procured from any other source known to affiant.

Wherefore affiant respectfully prays the court to grant him a continuance hereof to the next term of this honorable court; and so will ever pray, &c.

GEO. W. HENRIE.

The application was overruled.

The jurors were tested as to their qualifications, want of bias and prejudice, &c.; and on trial the accused was found guilty of murder in the second degree, and his punishment fixed at twenty years in the penitentiary.

Motion for new trial was urged for same ground for which the continuance was asked, and for charges given and refused, and on account of the prejudice of one of the jurors. This fact was supported by the affidavit of two persons, and was not contradicted or explained by the juror or otherwise.

There is in the record a statement of evidence not certified to by the judge presiding nor agreed to by the parties.

Other facts appear in the opinion of the court.

No brief for appellant.

George Clark, Attorney General, for the State.

REEVES, ASSOCIATE JUSTICE.

The indictment charges appellant with the murder of Michael Cannon in Shackleford county, and which county was attached to Palo Pinto county, where the indictment was found, for judicial purposes. At the July term, 1874, of the court the defendant applied for a continuance, which being overruled, he was put upon his trial, and convicted by the jury of murder of the second degree, and his punishment assessed at twenty years' confinement in the penitentiary. There was a motion for a new trial, and motion in arrest of judgment on various grounds; also a supplemental motion, as it is called, for a new trial, on the ground that Michael Hogan, one of the jurors in the case, had been guilty of...