Holland v. State

• Decision Date: 01 January 1873
• Citation: 38 Tex. 474
• Parties: W. F. HOLLAND v. THE STATE OF TEXAS.
• Court: Texas Supreme Court

38 Tex. 474

W. F. HOLLAND

v.THE STATE OF TEXAS.

Supreme Court of Texas.

1873.

1. A second application for continuance by a defendant in a criminal cause on account of the absence of a witness residing in the county, who had attended in obedience to a subpœna at the former term, but for whom no attachment had been issued or applied for during the three days which had elapsed of the term at which the application is made, does not show due diligence.

2. On a second application for continuance by the accused, when the absence of the witness is stated in the affidavit to be on account of sickness, the character or effect of the disease should be stated in the affidavit, or set forth in an affidavit of the physician, or some other person.

3. It is proper for the court, in considering a motion for new trial based on alleged error in overruling an application for continuance, to consider the facts established on the trial, both with a view of determining the materiality of the fact which it was stated the absent witness would prove, and the truth of the affidavit.

4. The statement in an affidavit for continuance on account of the absence of a witness that the absent witness would “contradict and expose the witness A. B.,” without stating how, is too vague and indefinite.

5. See this case for circumstantial evidence held sufficient to authorize a conviction for murder.

6. On a trial for murder a general verdict of “guilty,” which does not find in terms the degree of murder, but assesses the punishment at hard labor in the penitentiary for life, is sufficient to support the judgment.

APPEAL from Erath. Tried below before the Hon. J. P. Osterhout.

Indictment of Frank Holland for the murder of John Hayes.

The conviction of the prisoner of murder in the first degree was obtained on circumstantial evidence alone.

In 1861 John Hayes married Mary, the daughter of Dr. Wm. Edwards, of Erath county. A few weeks after the marriage Dr. Edwards received information that Hayes had a living wife in another state, and instituted prosecution. In default of bail, Hayes was committed to jail, escaped, and was not heard from for about eleven years. In 1872 he returned to Erath county.

On his return he found his wife had married again, with Frank Holland, and she and a son, the offspring of the first marriage, were living with Holland. Some negotiations took place, in which Hayes left it to the choice of the lady to return to him or remain with Holland. She chose the latter, and the affair was finally settled by an agreement that she should remain with Holland and Hayes should have his son.

In September, 1872, at the solicitation of Dr. Edwards, Hayes consented that his son, Jack, should go with his grandfather to visit his mother, with the understanding that the boy should return to him on the Sunday evening following.

At that time a camp-meeting was in progress under the direction of Dr. Edwards and near his house, and Sunday afternoon Hayes, Holland, his wife, the boy, Dr. Edwards, Joseph S. Edwards (a brother of Mrs. Holland), and others were there. Late in the afternoon Hayes proposed to leave, and wished to take his boy with him, which was objected to by Holland and J. S. Edwards, and “a fuss in words” ensued between the parties, which ended in an acquiescence on the part of Hayes to the boy remaining a few days longer, and he left, angry and declaring he would have his boy. He left the camp ground at from one and a half to two hours before sunset, and in fifteen to thirty minutes after Holland and J. S. Edwards left the camp, all going in the same direction--Hayes to his home at Waller's, and Holland and Edwards, with two others, ostensibly to the house of Edwards to attend to the cows and calves; Holland riding a small unshod mare, Edwards a large chestnut-sorrel horse, shod before and unshod behind; Edwards wearing a black coat, Holland a brown. Of their companions one (Henson) was mounted and the other (Vic. Edwards) on foot. After going some distance a separation occurred, Henson giving up his horse to Vic. Edwards and walking a nearer path. When he came into the road again he fell in with Vic. Edwards alone, who, in answer to his inquiry, told him that Holland and Edwards would be along after a while.

Holland and Edwards were next seen (one witness, who says he saw them at Jo. Edwards', being contradicted by Susan Edwards) about dusk, returning to the camp ground, their horses appearing tired, as if they had been going at speed. They were much excited, ate no supper, and used singular and suspicious language.

At about an hour by sun (as he states) a young man named Harper, at work in his father's field, a quarter or half mile from the spot where Hayes was found dead, heard the voice of a man exclaiming, “Oh! oh!” and immediately after a shot; saw a horse running, saddled, without a rider, and immediately after heard another shot; then saw on horseback a man in dark clothes, through an open spot in the timber towards the creek, and soon after two men on horseback, on the other side of the creek, going into the timber. He told his father what had occurred, and they went together to the spot where he heard the last shot, and there found Hayes dead.

When defendants returned to the camp Dr. Edwards went to them and they conversed awhile together privately.

During the following night information was received by J. B. Waller, with whom Hayes resided (and whose house was beyond Edwards' from the camp ground), that Hayes had been found dead near the road to the camp ground. Early the next morning he went to the place, and found him four miles from the camp ground, shot through the head, as had been reported to him. With a view of ascertaining as much as possible in regard to the homicide, he examined for horse tracks. He found a number of tracks going towards the camp ground, and three, apparently recent, coming from it. He found one the track of a pony of his own, which he had lent to Hayes. Her track was familiar to him, and he followed it back. He discovered that (as indicated by the tracks) the pony had been running for a short distance along the road, and from where she quit the road to where deceased was found, but beyond that, towards the camp ground, the gait appeared to have been leisurely. Accompanying the track of the pony were, on either side, the tracks of a horse--one a large horse, with two shod and two unshod feet, and the other a smaller bare-footed animal; and their tracks showed clearly the gait of these two, as far as he traced them, to have been a gallop. He followed the tracks backward, in the direction of the camp ground, to within half or three-quarters of a mile of that spot, and no further.

Complaint having been made, Holland and Jo. Edwards were arrested the next day by warrant of a justice; and on being arrested they surrendered each a pistol, one of which had one empty barrel; in the other, one barrel, which had been recently discharged, was newly reloaded.

The prisoner's second application for continuance was overruled; its character may be ascertained from the opinion.

On the same day the prisoner applied for a change of venue on account of...