Jones v. State

• Decision Date: 28 January 1903
• Citation: 71 S.W. 962
• Parties: JONES v. STATE.
• Court: Texas Court of Criminal Appeals

Page 962

71 S.W. 962

JONES v. STATE.

Court of Criminal Appeals of Texas.

January 28, 1903.

Appeal from district court, Caldwell county; L. W. Moore, Judge.

Charlie Jones was convicted of crime, and appeals. Reversed.

McNeal & Ellis, for appellant. Robt. A. John, 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 a term of seven years; hence this appeal.

Appellant objected to the testimony elicited from him on cross-examination by the state to the effect that he had been arrested in Lockhart, and carried back to Bastrop county, on the charge of having abducted a minor child. He objected to this on the ground that it was immaterial to any issue in this case, and calculated to injure and prejudice him before the jury. Felonies and misdemeanors which involve moral turpitude are provable against witnesses on cross-examination as affecting their credibility. We take it that abduction of a minor under our statute (articles 630-632, Pen. Code) would involve moral turpitude. The evidence was, therefore, admissible.

We think it was competent to prove the character of the place where the homicide is said to have occurred, under the circumstances of this case, and, if witness knew that it was a whorehouse, he could testify to this.

The bill of exceptions prepared by appellant shows an unwarranted allusion by state's counsel to appellant's character. However, the court explains this by showing that "appellant's counsel brought this on himself by alluding to the failure of the state to prove certain facts, and what was said by the district attorney was in response thereto. From this it appears that appellant did, through his counsel, refer to this matter, and ask why the state did not prove that appellant was a bad man, and had been indicted for killing people," etc. We think the state, in reply, proceeded to a great extent on this subject, but we are not prepared to say that counsel was not justified in doing so.

The state introduced Sanders as a witness, who testified that he was sheriff of Caldwell county at the time of the killing of Dan Roberts, for which appellant was indicted. On the night of the killing, and thereafter, about 12 o'clock, defendant came to the house of witness, and inquired for him. Witness was down in town. His wife telephoned to him that defendant was there. Witness telephoned back to her to have defendant saddle up his two horses, and bring them down town to him. Witness and his son Jess met appellant on the corner of the square. The state then proposed to prove by witness appellant's confession to the sheriff, to which defendant objected on the ground that the sheriff had not warned appellant. The question was then put to the witness whether or not he had arrested defendant at that time, to which he answered that he had not. Witness was then permitted to testify that appellant, when he came up to him, handed him his pistol, and said it was the pistol of deceased, Dan Roberts; but said that said parties had come up to the house, and that Dan Roberts had broken in the house, and hit his woman over the head, and that he had killed deceased; that he shot him once with his Winchester, and then shot him with deceased's pistol. And defendant at the time objected to such testimony, because the statement was made while appellant was under arrest, and in the custody of the sheriff, and that he had not previously been warned by such officer; and that for those reasons the testimony was inadmissible against him. This occurred on the night of the homicide, and immediately thereafter. Appellant, who had just shot deceased, went to the house of the sheriff, and inquired for him. He was informed by the sheriff's wife that the sheriff was in town, and that he had telephoned to her to have appellant saddle his horse, and bring it to him, which appellant did. He came to him, and gave him his pistol. But it does not appear from this bill that there was any formal arrest at the time. Evidently appellant sought the sheriff for the purpose of surrendering to him, and he did all that was in his power to place himself in the custody of the sheriff. He surrendered his pistol to him, and then, as it appears, told the...