Howard v. State
| Decision Date | 29 April 1908 |
| Citation | 111 S.W. 1038 |
| Parties | HOWARD v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from District Court, Shelby County; James I. Perkins, Judge.
Will Howard was convicted of murder in the second degree, and appeals. Affirmed.
Bryarly, Walker & Chamness, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.
Appellant was indicted in the district court of Shelby county for the murder of one Jim Crump, alleged to have been committed on the 30th day of September, 1906. On trial he was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of 14 years.
1. A preliminary question is made in a motion to reverse and remand the case on the ground, substantially, that appellant had been deprived, without the fault of himself or counsel, of a fair and correct statement of facts. The particular effect of this motion is to assert, in substance, that there was in attendance upon the trial of the case an official stenographer, who took a record of the evidence in the case as is required by law; that soon after the trial of the case he prepared a statement of facts therein and presented same to Hon. Beeman Strong, the district attorney, for his approval in the time required by the provisions of the act of the last Legislature (Laws 1907, p. 509, c. 24) in reference to statements of facts; that at the time his attorneys signed the agreement written thereon that the statement prepared by them was a true and correct statement of the facts, before the district attorney had examined same; that the district attorney failed and refused to agree to the statement of facts tendered him, and failed and refused to notify appellant or his attorneys of his refusal to so agree, and that he gave neither appellant nor his attorneys any opportunity to prepare a statement of facts as in such cases provided; that said district attorney failed and refused to prepare a statement of facts and present same to the trial judge as in said act provided; that the trial judge thereafter, without consulting with appellant or his said attorneys, erased in a large measure and interlined in a large measure the statement of facts as prepared by his counsel; that the provisions of section 6 and section 14 of the act above referred to were not complied with in making out said statement of facts, in that neither appellant nor his attorneys were notified of the refusal of the district attorney to agree to said statement of facts, nor were they given an opportunity to insist that the provisions of said act be complied with; that they did not know of the refusal of said district attorney to agree to said statement of facts, nor that the court had not complied with the provisions of said act, until said statement of facts had been approved by the said court, and had been sent by him to the clerk of the district court of Shelby county for the purpose of being filed as the statement of facts in said cause. It is averred, further, by appellant that, as he and his attorneys understand the facts, the statement as prepared by them and presented to the said district attorney was and is a true statement of the facts in this cause; that the statement as prepared by them, with the interlineations and erasures, is now in this record; that their version can still be read through said erasures, and reference is made to the original statement of facts sent up with the record to show the nature and character of the erasures and changes made. On this ground appellant moves and prays the court that the cause be reversed and remanded.
Section 14, c. 24, of the Acts of the 30th Legislature (Laws 1907, p. 512) provides in substance that the appellant shall prepare a statement of facts and present the same to the opposite party or his attorney of record for his approval within 15 days after the final adjournment of such court, and when presented to such opposite party, or his attorney of record, such opposite party or his attorney shall, within 10 days thereafter, if he fail or refuse to agree to such statement of facts as submitted by the appellant, prepare or cause to be prepared, as hereinbefore provided, a statement of facts upon which he relies, to be submitted to the court as hereinbefore provided, and from such statement and record of the case the court shall make up such statement of facts and approve and file the same within 30 days after such final adjournment of such term of the court. These provisions, with reference to time, we think merely directory, and intended to serve as only a regulation in the preparation of statements of facts. In other words, we have no doubt that if an appellant tendered his statement of facts within 20 days, or within 27 days, after the adjournment, and it was approved by the court, either on agreement or without agreement by state's counsel, we would and should recognize and treat it as a statement of facts properly filed and approved. We do not think that we are called upon to strike from the record, or refuse to consider, or in any way question, a statement of facts bearing the agreement of both parties to the record, approved by the court and filed within the time provided by law on account of any matter precedent thereto, at least in the absence of actual fraud or manifest unfairness. Again, if we may look to the original statement of facts, before the alleged changes, erasures, or interlineations, we do not think it contains such changes, erasures, or interlineations as materially affect the case, or would affect our disposition of same.
2. The killing of Jim Crump by appellant grew out of a controversy and difficulty which occurred between the parties in the town of Timpson, in Shelby county, on the 30th day of September, 1906. Appellant was, and for some four years had been, a resident of said town, and during most, if not all, that time had been in the restaurant business. The deceased had lived in or near the town of Timpson practically all of his life. On the day of the homicide appellant's wife had gone up the street to visit his brother, who was in the same kind of business. A short time before the killing, appellant with his brother Charles walked up the street on which they were both doing business, towards where appellant's wife was, and had just passed the house of one Herring, when they turned around the corner of Herring's house and passed rather out of sight. Here they became engaged in a difficulty in which, according to the testimony of appellant, the deceased, Crump, was wholly to blame. In any event, at this place the parties became involved in a difficulty, during which time they all fell into a nearby ditch, and in the course of which appellant fired two shots with his pistol. At this point the testimony differs widely. No one was hurt up to this time, at least seriously, and they all got up from the ground. According to the testimony of Herring and other witnesses appellant walked away some 20 or 30 feet, and when at this distance turned around, and walked back a short distance, and said to the deceased: "Now, damn you, I will get you this time." At the time deceased was doing nothing, and was making no demonstrations, and was not even approaching appellant, or going in his direction. By the testimony of other witnesses, and particularly that of appellant and his brother, it is claimed that, notwithstanding he was walking away from deceased, the deceased started to follow him with an open knife, and that at this juncture Charley Howard called out to appellant to watch out for the knife then in the hands of Crump, and that at this juncture, and in this condition of affairs, appellant, acting under reasonable apprehensions of danger as same appeared to him, shot and killed the deceased. This is not intended to include a statement of all the facts, but is a fair summary, we believe, of sufficient of the evidence to illustrate our opinion.
3. The first assignment of error complains of the charge of the court, in that such charge fails, as appellant claims, to charge the jury that the presumption of innocence continued in favor of appellant throughout the trial of the whole case, and that the burden rested on the state to meet and overthrow this presumption of innocence by establishing by legal evidence the guilt of the appellant beyond a reasonable doubt. The proposition submitted by them...
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