Holmes v. State

• Decision Date: 24 November 1897
• Citation: 42 S.W. 996
• Parties: HOLMES v. STATE.
• Court: Texas Court of Criminal Appeals

42 S.W. 996

HOLMES v. STATE.

Court of Criminal Appeals of Texas.

November 24, 1897.

Appeal from district court, Saline county; Tom C. Davis, Judge.

Ella Holmes was convicted of theft, and appeals. Reversed.

Mann Trice, for the State.

DAVIDSON, J.

Appellant was convicted of hog theft, and given two years in the penitentiary; hence this appeal.

There are several questions presented for revision upon the face of the record and the rulings of the court on the trial of this case. The motion to postpone the case is in such condition that we deem it unnecessary to notice it. It was signed by appellant's counsel, and alleges that his client was unable to employ an attorney, and he volunteered his services to advise her; that the appellant "had no witnesses subpœnaed in her behalf, because she did not know what would avail her, owing to the nature of her defense." Counsel states in the motion that the defendant has a legal and legitimate defense, if he had time to prepare it, and have witnesses summoned, which would take until the 23d inst. This motion was made on the 21st of August, 1897. There was no process issued for the witnesses, and there is nothing stated that brings the application or motion within the rules laid down by the Code of Criminal Procedure, with reference to continuance and postponement of trials. Besides, the court qualifies the bill, stating that appellant was arrested on the 18th of August, notified that her case was set for trial on the 21st, and that the parties all lived within two or three miles of town. If this be true,—and it is uncontradicted in this regard, —appellant could have secured all the witnesses within a very short time, but no process was issued. There is a serious question, however, arising on the motion for a new trial. After the jury had retired, and before they had agreed upon a verdict, the jurors Dave Davidson and Jesse King told the jury that the defendant was the biggest rogue they had ever seen or heard of; and they further stated that she ought to be hung, and they would be willing to hang her if the law would permit it. Jesse King informed said jury of several instances of the defendant's thefts; among others, of the theft of Frank King's cotton, breaking into George Bristow's house, also of stealing chickens, as well as the theft of a breastpin of Mrs. Polley. The fact that these statements were made to the jury is uncontradicted by the state, and the two jurors making the statement were for the...