Hill v. State

• Decision Date: 09 December 1908
• Citation: 114 S.W. 117
• Parties: HILL v. STATE.
• Court: Texas Court of Criminal Appeals

114 S.W. 117

HILL v. STATE.

Court of Criminal Appeals of Texas.

December 9, 1908.

Appeal from District Court, Hamilton County; W. J. Oxford, Judge.

W. W. Hill was convicted of murder, and appeals. Reversed and remanded.

See, also, 106 S. W. 145.

Goodson & Goodson, Martin & George, H. E. Chesley, and A. R. Eidson, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.

BROOKS, J.

Appellant was convicted of murder in the second degree, and his punishment assessed at a term of 21 years in the state penitentiary.

Bill of exceptions No. 1 shows that, while the witness J. T. Preston was on the stand testifying in behalf of the state, and after the witness had testified that he reached the scene of the alleged homicide about 3:30 or 4 o'clock and found R. C. House and his wife, Mrs. House, the father and mother of the deceased, there, and that the said witness examined the ground and the premises where the deceased was, the witness then proceeded to testify to various tracks and grass mashed down near the scene of the killing, to all of which appellant objected on the ground that same was immaterial, irrelevant, and incompetent. This testimony was clearly admissible. It was a question of fact as to whether or not these facts and circumstances connected appellant with the commission of the crime. Any indicia or evidence of the fact as to how the homicide was done regardless of whether these facts subsequently connected appellant with the commission of the crime, are always admissible.

Bill of exceptions No. 2 shows that, while Tom Askins was on the stand as a witness for the state, the same testimony was produced and the same objection was made as shown in bill of exceptions No. 1. Bill of exceptions No. 3 complains of similar testimony. Bill of exceptions No. 4 complains of the failure of the court to exclude said testimony. None of these objections are well taken.

Bill of exceptions No. 5 shows the following: Defendant's counsel asked the witness R. Q. Murphree the following questions: "Q. Do you know the place where Hill claims to have stood when he fired the shot? A. Yes, sir. Q. Did you pick up that cartridge at that place? A. Yes, sir; about that place. The shell was just about that place." Appellant insists that this testimony should be excluded on the ground that appellant is not responsible and could not be bound by questions asked by his attorneys, and for the reason that the answer of the witness does not show that the witness' information was derived from any statement heard by him from Hill, and because the question and answer both show that it was not intended, either by the question or the answer of the witness to elicit any information that had been derived from Hill, the appellant, but was merely intended to elicit as a matter of identity the spot where the shell was picked up, without reference to how the information was derived. The court refused to exclude this testimony, and there certainly was no error in refusing to do so. Appellant's counsel cannot ask questions, and then, because the effect is adverse or damaging, ask that the same be excluded. The court says that appellant's counsel did not ask for an opportunity to recross the witness as to his means of information about the exact locality.

Bill of exceptions No. 6 shows that, after the jury retired to consider their verdict, they returned into open court and asked to hear the reproduction of certain testimony. The bill is approved, with the following explanation: "That at the time the court was informed by the sheriff that the jury wanted the evidence of the witnesses on the points set out in this bill, Hon. G. H. Goodson and Hon. M. T. Martin had left Hamilton for their homes, and Hons. H. E. Chesley and A. R. Eidson were the only attorneys in town who were representing defendant. The court had them called. They responded, and the court ordered the sheriff to bring out the jury, which was done, and at the time the jury informed the court, through their foreman, of their wishes, and the court at said time observed that the defendant was not present, and remarked to Mr. A. R. Eidson that defendant was absent, and Mr. Eidson replied: `That is all right. We waive his presence and will take no advantage of that.' The defendant was on bond at the time and was voluntarily absent; that is, he could have remained in the courthouse had he desired to do so. The court then, with consent of defendant's counsel, delivered to the jury the evidence, as set out in the bill, which was a literal reproduction of what each witness testified, and was read over by counsel for defendant, and agreed by them to be correct, and that the jury should have it in their room with them while deliberating. I do not certify that defendant's counsel had no authority to do this for defendant, as...