Hughes v. State

• Decision Date: 27 June 1900
• Citation: 60 S.W. 562
• Parties: HUGHES v. STATE.
• Court: Texas Court of Criminal Appeals

60 S.W. 562

HUGHES v. STATE.

Court of Criminal Appeals of Texas.

June 27, 1900.

Appeal from district court, Denton county; D. E. Barrett, Judge.

Nathan A. Hughes was convicted of murder, and he appeals. Reversed.

Owsley & Ragsdale, Harry Tom King, and C. F. Greenwood, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.

BROOKS, J.

Appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of 25 years, and prosecutes this appeal.

The charging part of the indictment is as follows: "* * * That Nathan A. Hughes on or about the 12th day of June, 1899, and anterior to the presentment of this indictment, in the county and state aforesaid, did then and there unlawfully, with malice aforethought, kill George Frampton, by striking him with a hand ax, against the peace and dignity of the state. And the grand jurors aforesaid, upon their oaths aforesaid, do further present in said court at its said term that Nathan A. Hughes on or about the day and date aforesaid, and anterior to the presentment of this indictment, in the county and state aforesaid, did then and there, with malice aforethought, unlawfully kill George Frampton, by striking him with some hard instrument to the grand jurors unknown, against the peace and dignity of the state. And the grand jurors aforesaid, upon their oaths aforesaid, do further present in said court at its said term that Nathan A. Hughes on or about the day and date aforesaid, and anterior to the presentment of this indictment, in the county and state aforesaid, with malice aforethought, did then and there unlawfully kill George Frampton by drowning him, by placing him, the said George Frampton, in water, against the peace and dignity of the state. And the grand jurors aforesaid, upon their oaths aforesaid, do further present in said court at its said term that Nathan A. Hughes on or about the day and date aforesaid, and anterior to the presentment of this indictment, did then and there unlawfully kill George Frampton, by striking him with a hand ax and some hard instrument, a better description of which is to the grand jurors unknown, and by drowning him by placing him, the said George Frampton, in water, against the peace and dignity of the state. And the grand jurors aforesaid, upon their oaths aforesaid, further present in said court at its said term that Nathan A. Hughes on or about the day and date aforesaid, and anterior to the presentment of this indictment, in the county and state aforesaid, with malice aforethought, did then and there unlawfully kill George Frampton in a way and manner and by the use of instruments, means, and weapons to the grand jurors unknown, against the peace and dignity of the state." Appellant filed a motion to quash the indictment for the following reasons: "(1) The same is duplicitous, confused, and uncertain, and does not set forth any offense with certainty sufficient to apprise defendant of the nature of the charge against him. (2) The second count does not sufficiently describe the instrument used in the alleged killing, or show any reason why a better description is not given. (3) The fourth count in said indictment attempts to charge three separate offenses in the same count, and is duplicitous, uncertain, and misleading. (4) The fifth count is insufficient because it does not charge any offense, nor show any reason why the means of the alleged killing could not have been known to the grand jury, and does not allege any fact that will apprise defendant of the nature and the allegation against him." Without discussing the various reasons urged by appellant, we think the indictment is sufficient, and appellant's objections to the same are not well taken.

Appellant insists the court erred in overruling his application for continuance. In this there was no error. The testimony relied upon by appellant, in the light of the record before us, is either immaterial or not probably true. Hence there was no error in overruling the same.

The fourth ground of appellant's motion for new trial complains that one of the jurors, J. T. Hawthorne, had expressed an opinion that appellant was guilty, to divers and sundry parties, and affidavits are attached. These affidavits are controverted by the county attorney in this way: He files an affidavit himself, and each of the jurors who served upon the panel also makes affidavit, including Hawthorne. The substance of these affidavits is that the statement of said Hawthorne was idle talk; that he had never heard any of the testimony, nor had heard any of the witnesses tell of the matter; that the opinion he had was formed on merely idle rumor, and when qualified as a juror he stated he had an opinion, but that opinion would not influence him in finding a verdict. It is furthermore made to appear by the affidavits that the juror Hawthorne was in favor of the lowest punishment of any juror who served, and suggested that appellant be given murder in the second degree, with 10 years in the penitentiary. The verdict returned by the jury assessed appellant's punishment at 25 years. We do not think appellant's contention is borne out by the facts, since it is not made to appear that the juror Hawthorne was otherwise than a fair and impartial juror, —in fact, was more lenient to appellant than any other juror. An inspection of the record clearly warrants the conclusion that the juror Hawthorne was not prejudiced against appellant, since the evidence would support murder in the first degree. Aud v. State, 36 Tex. Cr. R. 76, 35 S. W. 671.

Having carefully examined appellant's other assignments, without reviewing them in detail, we will say that there is no error made apparent. The judgment is therefore affirmed.

On Motion for Rehearing.

(Dec. 19, 1900.)

HENDERSON, J.

The judgment herein was affirmed at the Austin term, 1900, and now comes before us on motion for rehearing. Appellant presents but one ground as a basis for rehearing and reversal. He insists he was not tried by a fair and impartial jury, as required by the constitution and laws of this state, in that one J. T. Hawthorne, who sat upon the jury, had previously formed and expressed an opinion in the case antagonistic to defendant, and in such wise as to show he was prejudiced; that, although appellant used due diligence, this was not known to him until after the impanelment of said juror. This matter was presented to the court pending the trial, and before the case was finally submitted to the jury. The court overruled appellant's motion at that time, and it was again presented in motion for new trial, and was overruled, and this action of the court is assigned as error.

The proceedings show that after the impanelment of the jury, while the evidence was being submitted, appellant then made an affidavit to the effect that he had just discovered the juror Hawthorne had expressed the opinion to N. E. Oberg and A. K. Hudson that his mind was fully made up, and, if he decided the case, defendant's neck would break; and this affidavit was supported by the affidavits of said Oberg and Hudson. The jury were retired, and the court heard the motion and overruled it, without any further investigation. Subsequently, on motion for new trial, appellant again brought this matter to the attention of the court, and again presented it on his own affidavit, supported by the affidavits of seven different persons, including the two above named. The state met appellant's application on this ground by an answer simply signed, and not sworn to, by the county attorney, and supported by the affidavit of the juror Hawthorne, and also appended the affidavits of some 10 of the jurors. These, however, only related to what occurred in the jury room, and were used for the purpose of showing that the juror Hawthorne manifested no unfairness or prejudice in the jury room. Inasmuch as the state questions the diligence of appellant in passing on the juror Hawthorne when the jury was impaneled, we will quote so much of the motion and answer as bears on that issue. Appellant's counsel, in their affidavit, which is sworn to by both themselves and appellant, state that the juror Hawthorne, when examined as a juror on his voir dire, stated he had not read anything about this case in any newspaper, and had not heard anything of what purported to be the facts of this case, and that he then had in his mind no opinion as to the guilt or innocence of the accused, and that he had never at any time expressed any such opinion; that he merely heard the case mentioned, and the said juror, by his statements so made, fully qualified himself as a juror to sit in this cause; and the said juror had been summoned as a talesman, and, as defendant's challenges had all been exhausted, he was compelled to accept said juror, although if he had had a challenge he would have exercised it and excused him. The affidavit further goes on to show, that they did not know of any prejudice on the part of said juror Hawthorne against appellant, and had heard of no expressions made by him against defendant until pending the trial, when they made a timely motion, as before stated. And to said motion is further attached the affidavits of seven witnesses, as before stated, showing expressions on the part of said juror against appellant. In answer to said motion the county attorney replied that, if the expressions used and sworn to by the witnesses were used by the juror Hawthorne against defendant, that the same were idle expressions of an opinion formed from hearsay,...