Johnson v. State

• Decision Date: 07 February 1906
• Citation: 94 S.W. 224
• Court: Texas Court of Criminal Appeals
• Parties: JOHNSON v. STATE.

94 S.W. 224

JOHNSON v. STATE.

Court of Criminal Appeals of Texas.

February 7, 1906.

Rehearing Denied March 22, 1906.

Appeal from District Court, Erath County; W. J. Oxford, Judge.

Bob Johnson was convicted of murder in the first degree, and he appeals. Affirmed.

Ben Palmer and B. E. Cook, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

This is the second appeal. In this, as on the former appeal, appellant was allotted the death penalty. Johnson v. State (Tex. Cr. App.) 90 S. W. 633. The evidence in this record is widely different from that presented on the former appeal. Much of the evidence with reference to confessions contained in the former record was not placed before the jury on the second trial. Nor did appellant put any testimony before the jury.

When the case was called for trial appellant requested the court to change the venue, filing his individual affidavit that he could not obtain a fair and impartial trial, and further stated that he was unable to obtain compurgators. The court qualifies this bill of exceptions by stating that there were credible witnesses, white and black, who would have signed as compurgators, if the facts justified such affidavit, and that he, as judge, informed both of appellant's counsel that they could file their affidavits. This they declined to do, and the court refused to hear any evidence. We believe that, under the rulings of the court, this was correct. Turner v. State, 89 S. W. 975, 14 Tex. Ct. Rep. 36; O'Neal v. State, 14 Tex. App. 588, and authorities there cited.

Appellant sought a continuance on account of the absence of Felix Price, who was shown to have been in the state of Illinois. By him he desired to prove that shortly after the alleged homicide a negro prostitute was seen in the town where the killing occurred with quite a sum of currency bills; that she was the mistress of one Tyson, shown to have been one of the hands around the oil mill in which the killing occurred; and that this negro prostitute asked the absent witness for change for one of the bills. Not having it, he accompanied her to the town of Dublin, in order to secure change for the bill. This matter is presented in an entirely different form on this appeal than on the former. Tyson was used as a witness on the other trial, and was not so used on this trial. It is a well-settled rule that, where the defendant can show another party was placed in such relation to the homicide, and with motives and reasons for committing the homicide, this can be shown, where the party on trial is seeking to exculpate himself from punishment by reason of the fact that the other party may have done the killing. This has been well settled since Dubose v. State, 10 Tex. App. 230. However, in order to be admissible, it must be such testimony as could be used as original and not as impeaching evidence. The mere fact that this woman was the paramour of Tyson, and had money which she stated her white husband gave her (referring, doubtless, to Tyson), is not sufficient, standing alone, to connect Tyson with the homicide, to the exoneration of appellant. That of itself is not sufficient to show that in fact she secured the money from Tyson, that Tyson secured it from deceased, or that he killed him for the purpose of robbery. In other words, as the motion for continuance presents this matter it is too remote, intangible, and is not original, but hearsay, testimony. We are therefore of opinion that the application for continuance was properly overruled.

There is a contention that the court should have charged the law applicable to circumstantial evidence and murder in the second degree. On the former appeal we reversed the judgment, among other things, because the law of murder in the second degree was not charged. The evidence upon which that ruling was based is not included in this record. There is no evidence on this appeal tending to raise the issue of murder in the second degree. Appellant's contention seems to be based upon the idea that, if the jury should disregard appellant's confession, the case would be one of circumstantial evidence. It has been the universal rule, so far as we are informed, in this state, that, where the confession is used, this takes the case out of the rule that applies in cases of circumstantial evidence. This being true, a charge of murder in the second degree was not required by the facts. Independent of the confession, it would have been a very serious question, and perhaps it would have been necessary to give the law of murder in the second degree in charge to the jury; for in that state of case it would have been one of circumstantial evidence, with an unexplained killing, or rather a killing could be inferred from such circumstances as would not necessarily indicate murder upon express malice. But all the facts, taken in connection with the confession, show clearly that it was a killing of deceased while he was asleep and for the purpose of robbery. These conclusions are based upon the present record, which, as before stated, is entirely different from the record on the former appeal. So we are of opinion that it was not error to omit the charge of murder in the second degree.

In regard to the confessions, we are of opinion that they were properly admitted, those made to Sheriff Creswell as well as to District Attorney Chandler. A proper predicate was laid, and the court also instructed the jury that, if they should find these confessions were induced by hope or fear, they would disregard them in considering their verdict. We see no error in this. The confession was clearly admissible; and the evidence, if any, tending to suggest either the theory of hope or fear on the part of appellant in making the confession, was so remote that the jury were fully warranted in holding they were freely and voluntarily made. In regard to this part of the record we would also state that the evidence is different from what it was on the former appeal.

Quite a number of exceptions were reserved to the action of the court in regard to the impanelment of the jury. The bill which presents the issue stronger than the others in favor of appellant is that in regard to the juror Whiteacre, as contained in the fourth bill. On his voir dire he stated that he has heard a good deal about the case, but he had no such opinion, from hearsay or otherwise, as to the defendant's guilt or innocence, as would influence his action in finding a verdict in case he was taken on the jury. Defendant's counsel then...