Jackson v. State

• Decision Date: 14 December 1908
• Citation: 115 S.W. 262
• Parties: JACKSON v. STATE.
• Court: Texas Court of Criminal Appeals

115 S.W. 262

JACKSON v. STATE.

Court of Criminal Appeals of Texas.

December 14, 1908.

Appeal from District Court, Johnson County; O. L. Lockett, Judge.

W. B. Jackson was convicted of murder in the second degree, resulting from an alleged abortion, and sentenced to seven years' confinement in the penitentiary, and he appeals. Reversed and remanded.

W. H. Skelton, Jno. Baker, Odell & Johnson, and Poindexter & Padelford, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

The indictment contains several counts; the first only being under consideration. This charged that appellant "did then and there, with malice aforethought, kill May Carden, a pregnant woman, by then and there unlawfully, willfully, and designedly inserting and thrusting an instrument, the name and description of which is to the grand jurors unknown, into the womb and body of the said May Carden, with the intent on the part of him, the said W. B. Jackson, thereby to cause and procure the abortion and miscarriage of the said May Carden of the child wherewith she was then and there so pregnant, against the peace and dignity of the state." The record is very voluminous, having nearly 500 pages of statement of facts. Many questions are presented for revision. As the case will be reversed on other questions, we will not discuss the alleged error of the court in overruling the application for continuance, nor the matters presented by exception to some of the rulings of the court in regard to a colloquy between the court and counsel, in which the court imposed a fine on one of the attorneys defending. These matters will hardly occur upon another trial, and the presence of the absent witness may be secured.

1. It is shown by a bill of exceptions that W. H. Skelton was employed by appellant to represent him on the trial; that he was a practicing attorney of many years' standing in Johnson county, and was the first lawyer employed by appellant to represent him; that Skelton resided at Alvarado, where appellant also resided, and had consulted with appellant more frequently in regard to his case than the other attorneys, and had a more complete and perfect knowledge of the evidence of the case than any other attorney; that in fact Skelton was appellant's leading counsel. The court was requested not to place Skelton under the rule as a witness. He was placed under the rule, sent out and kept out of the courthouse and under the rule during the entire trial, and was instructed, as all the witnesses were, not to talk to any one except the attorneys in the case about the evidence, nor as to what his evidence would be, and after they had testified as to what their evidence had been. The rule was invoked. The court signs this bill with the explanation that when the witness was sworn the county attorney objected to his remaining in the courtroom, and as the defendant had invoked the rule, and as the county attorney stated he might be a material fact witness, he put him under the rule. His testimony in this case, which was referred to and made a part of this bill, shows that he accepted employment, and if an attorney accepts employment under such circumstances then he should be excluded from the courtroom while the testimony is being given. In this case the defendant had the assistance and counsel, during his trial, of the following attorneys: Poindexter & Padelford, Odell & Johnson, and John Baker. With such able counsel no injury could have resulted to the defendant in the court's excluding only one. This is practically and almost literally the explanation of the trial judge. Our Bill of Rights guarantees that, when the accused is placed upon his trial, he shall have the right to be heard by his counsel and himself, either or both. The defense of an accused by counsel is a very valuable right, and one which is guaranteed him by our Constitution and laws, and whenever the relation of client and attorney exists the accused has the guaranteed right of having counsel represent him at any, all, and every stage of his case while before the courts. "Usually the legal discretion of a court, exercised during a trial in reference to the enforcement or relaxation of the `rule,' will not be revised by the appellate court; but this is not always the case. The prime, as well as the ultimate, object of this statute is to secure a fair hearing of the testimony, and, when necessary to attain these objects and purposes, the rule should be relaxed. From the very nature of the matter there can be no fixed rule in such state of case, other than a due administration of the law. It is a practice alike familiar to the courts and the profession that this rule is relaxed in regard to attorneys of the court. Brown v. State, 3 Tex. App. 295; Johnson v. State, 10 Tex. App. 571; Roach v. State, 41 Tex. 262; Sherwood v. State, 42 Tex. 498. And we do not think it could be enforced as to attorneys engaged in the particular case on trial; for, if such were the rule, the state could thus be deprived of a prosecuting attorney, and the defendant of his counsel, and the rule be made paramount to the Code, defeat the very objects of its existence, and even infringe the Bill of Rights, wherein it is provided that the accused shall have the right to be heard by counsel, as well as by himself." This quotation is from Boatmeyer's Case, 31 Tex. Cr. R. 473, 20 S. W. 1102. See, also, Johnican v. State (Tex. Cr. R.) 48 S. W. 181, and White's Ann. Code Cr. Proc. § 767, subd. 2, for collation of authorities. The fact that appellant may have been ably defended by other counsel does not abridge his right to have counsel of his own selection, and as many as he may see proper to employ, to defend him; nor can he be deprived of the advantage of his selected counsel by placing them under the rule as witnesses. If this rule should obtain, then the state could place counsel of accused under the rule as witnesses in behalf of the state, and deprive him of such counsel as he might see proper to select or employ.

2. The dying declarations of May Carden were introduced over appellant's objection. Quite a number of reasons are urged why this ruling was error. Without going into a detailed statement, a fair summary in regard to this matter can be thus stated: Dr. Turner and Dr. Self were called in as physicians and attended the deceased. When Dr. Turner was first called, he administered an opiate and requested that Dr. Self be called, which was done. They met at the bedside of the deceased. They found her suffering excruciating pain, and giving vent to vociferous exclamations indicating the intensity of her pain. Among other things she stated she was going to die; that she could not stand it. She was suffering from hemorrhages from the womb, which was greatly distended; the discharged matter being quite offensive. The theory of the state was that her troubles were brought on by an abortion. Dr. Turner testified that they made a digital examination, passed their hands into the "vagina and uterus, and found that the uterus was full—the mouth of the uterus was dilated—open, and she had passed several pieces of membrane and blood clots, and the uterus was full of retained embryonic tissue and an awful bad odor." This embryonic tissue was evidently the fœtus of a child. The opinion of this physician is pretty clear that she was not in a dying condition; but his testimony showed that she was suffering intense pain from the discharge; that the exclamation of her belief that she was dying was more the result of the pain than a real belief of death, and that he had often heard this from women who were in childbirth or under similar conditions. Dr. Self, in talking with the deceased, asked her what brought about her condition. She replied: "I am two months gone, and I had an abortion done." She says: "I have got to have relief." She was suffering and taking on greatly. "I says: `Well, we have got to know all about this thing, and you must just tell us all about it before I will take charge of the case. These are cases that a doctor dislikes to get into anyway, and we must know all about it.' They tried to keep from telling us, and we told her we would just have to know it, as to who did the operation and where it was done, and she says: `It was done at Alvarado.' I says: `Who did it? You had as well tell it all, because we have got to know it.' And Scott, the young man in the room with her, began to beg us not to require them to tell who it was, and I says: `I must insist on knowing who it was before I take charge of the case.' And he says: `Well, tell him who it was.' And she says: `Dr. Jackson, of course.' Q. (by state's counsel): Said what, Doctor? A. Says, `Tell him,' says to Scott —says: `Why, tell him who it was. It was Dr. Jackson, of course.' I asked her how it was done, and she said he used instruments and tried to take it away. * * * Well, she made the statement several times that she could not stand it; that it was going to kill her. Q. She could not stand the pain? A. Yes, sir; I think she made the statement —I am quite sure she did—that she was going to die; that she could not stand the pain; that the pain was killing her, and that she wanted to be relieved." This witness says that she was crying out on account of the excruciating pain she was suffering when he and Dr. Turner were questioning her, and that she wanted him to do something for her; that she was wanting relief all the time. "Q. And you declined to do anything for her, and told her you must have this information as to what brought about this condition before you would take the case and do anything for her, didn't you? A. Yes, sir. Q. Now, when Scott spoke up, what did he say? A. Scott says: `Gentlemen, I don't want to tell who it was. I would rather not say that.' Q. And you would not have anything to do with it until you found out? A. We left that impression on her, I am quite sure. Q. You would not do anything for her...