Hull v. State

• Decision Date: 06 February 1907
• Citation: 100 S.W. 403
• Parties: HULL v. STATE.
• Court: Texas Court of Criminal Appeals

100 S.W. 403

HULL v. STATE.

Court of Criminal Appeals of Texas.

February 6, 1907.

Rehearing Denied March 13, 1907.

Appeal from Criminal District Court, Galveston County; Lewis Fisher, Special Judge.

Eugene Hull was convicted of murder, and appeals. Affirmed.

R. H. & Alice S. Tiernan, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for 50 years, and prosecutes this appeal.

Appellant's first assignment of error questions the jurisdiction of Judge Lewis Fisher to try said case. The record shows that Judge Jas. K. P. Gillaspie is the criminal district judge of Galveston and Harris counties, and that Judge Lewis Fisher is the judge of the Tenth judicial district, composed of the county of Galveston, and that Judge Fisher was holding court for Judge Gillaspie at the latter's request. The contention is that, because the judge of the criminal district court of Galveston and Harris counties, under the Constitution (see article 5, § 1, of the Constitution, and acts of the Legislature approved July 23, 1870 [6 Laws Tex. p. 211]) has jurisdiction of criminal cases only, such judge is not authorized to exchange with the judge of some other district court; nor can such other judge hold a term of the criminal district court and try criminal cases. It will be seen, on inspection of said article of the Constitution, that the criminal district court of Galveston and Harris counties is continued, with the same district, jurisdiction, and organization existing at the time of the adoption of the Constitution, until otherwise provided by law. We know of no change on this subject since the creation of this court by the act of July 23, 1870. See articles 15-19 et seq., Rev. St. 1895. That act gave said court jurisdiction to try and determine both felony and misdemeanor cases, and its jurisdiction has been so continued by the Constitution. Judge Fisher's incumbency is under the general provisions of the Constitution relating to district courts. Section 8 of article 5 of the Constitution, gives the district court original jurisdiction in all cases of the grade of felony, as well as such civil jurisdiction as is conferred on the district court. There is another provision of the Constitution which authorizes the jurisdiction in the county court of misdemeanors (see section 16 of article 5), and that these can be transferred by legislative act to the district court. Said section also provides that the county court shall not have criminal jurisdiction in any county where there is a criminal district court, unless expressly conferred by law, etc.

Section 11 of said article 5 provides for the exchange of districts by judges, to wit: "When the judge of the district court is disqualified for the causes above stated, the parties may, by consent, appoint a proper person to try said case, or upon their failing to do so a competent person may be appointed to try the same in the county where it is pending, in such manner as may be prescribed by law, and the district judges may exchange districts, or hold courts for each other when they may deem it expedient, and may do so when required by law. The disqualification of judges of inferior tribunals shall be remedied, and vacancies in their offices filled, as may be prescribed by law." Now, it is insisted that, because the judge of the criminal district court of Galveston and Harris counties cannot try civil cases, therefore a district judge, who, under the general terms of the Constitution and provisions of law, can try both civil and criminal cases, cannot sit in said criminal district court and try criminal cases. We do not believe this contention is sound. It is true, in Galveston county, until otherwise provided by law, the criminal court has exclusive criminal jurisdiction in all cases of felony; but this does not contravene the inherent power of a district judge to try criminal cases in said criminal district court. No doubt a district judge of some other district than Galveston might sit in said criminal district court, and we understand the inherent power of a judge of the Tenth judicial district to be equal to that of any other district judge under our Constitution. We accordingly hold that the judge of the Tenth judicial district court was authorized to sit as judge of said criminal district court and try said case.

Appellant excepts to the action of the court in refusing to quash the special venire for the trial of this case. The ground asserted for the quashal of same was because the constable served a portion of said special venire, to wit, some 25. This, it appears, was done at the request of the sheriff, who summoned the remainder of said special venire. The constable made return to the sheriff, and he made return to the court. We think this is proper practice. We do not believe it was contemplated that a sheriff in person should make service of the writ, which is directed to the sheriff or any constable of the county. All the service could be made by the sheriff's deputies, their returns made to him, and he make return to the court, or it could be made, as here, in part by him and his deputies, and in part by the constable. Of course, if the writ required amendment, this should be done by the sheriff; and we gather that this was the course pursued in this case.

Appellant excepted to the refusal of the court to continue the case. This was the third motion for continuance, and was based on the absence of the witness Ceria Garza; the other witness for whom the application was made, to wit, Ida Walton, being present. There was no diligence used as to the witness Garza. This witness Garza was not summoned to prior terms of the court, though the indictment was returned on the 29th of July, 1905, and two continuances had been had by appellant and no process was issued for this witness until the 15th of November, 1906, and no effort is shown on part of appellant to ascertain what testimony said witness would give, nor any reason shown for lack of diligence in this respect. It is stated in the application that the said witness Garza would testify that witness heard deceased, who was pursuing appellant in a buggy, say, "Stop, or I'll kill you!" It is not shown in the application that appellant heard this, and it occurs to us, from this record, that, if the witness would swear to this expected evidence, it would not reasonably change the result. Furthermore, the bill of exceptions does not show that the testimony would not be of a cumulative character, nor does it show the whereabouts of said witness, or that the witness could be procured by continuance to another term of the court.

During the progress of the trial appellant excepted to the testimony of the witness Joe Devoti, as follows: "Q. State to the jury what you said to Officer Mayo. A. I told him there was a man around the corner who had pulled a gun on a man and had clinched with a woman and taken something away from her, and just about that time this man (the defendant) walked up there. And I said to the officer, `There he is now; there is the man who pulled the gun,' just like that, and this man came right up and said, `No son of a bitch of a policeman is strong enough to arrest me,' and he broke and run, and Mr. Mayo after him in his buggy. I walked about 10 or 15 feet west, and then went across the street. ...