Keaton v. State

• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas
• Citation: 57 S.W. 1125
• Parties: KEATON v. STATE.<SMALL><SUP>1</SUP></SMALL>
• Decision Date: 11 April 1900

Page 1125

57 S.W. 1125

KEATON v. STATE.¹

Court of Criminal Appeals of Texas.

April 11, 1900.

Appeal from district court, Coleman county; J. O. Woodward, Judge.

Pearce Keaton was convicted of murder, and appeals. Affirmed.

Jenkins & McCartney, for appellant. Sims & Snodgrass and Robt. A. John, Asst. Atty. Gen., for the State.

BROOKS, J.

Appellant was convicted of the murder of Lee Johnson, and his punishment assessed at confinement in the penitentiary for life. Appellant testified in his own behalf substantially as follows: "Myself, Bud Newman, Jeff Taylor, and Bill Taylor entered into an agreement to rob the express on the Gulf, Colorado & Santa Fé Co.'s train at Coleman Junction. We first spoke of robbing it at Ballinger, but the Taylors said Coleman Junction would be best place. They were acquainted with the place, so they said. We first talked about it about two months before we made the attempt. We agreed to come to Coleman Junction for the purpose, and did come for that purpose. We did not agree, before we started up there, as to the part each one was to perform. We made the agreement while we were on the road up there as to the part each was to perform. Bill Taylor was to be the leader, and direct. It was agreed that myself and Bud Newman were to take the engineer and fireman in charge, and take them out of the cab, and that Newman was to take one of them with him to the express car for the purpose of getting express car opened. When we got there myself and Newman got on the engine, and made the engineer and fireman get out of the cab, and on the ground. We used our guns in doing so. Myself and Jeff Taylor, after they got out of cab, took charge of the engineer, and Newman took charge of fireman, and marched him up to express-car door to have it opened. We forced the fireman and engineer to do as we told them, and while Newman and fireman were at express car first time something got the matter with the engine, and fireman said to Newman, `I will have to shut off that injector,' and he and Newman then came back for that purpose. At time they [Newman and fireman] were at express car, and before they came back myself, Jeff Taylor, and the engineer were near the tender to the engine, and engineer was trying to get down under the car; and I asked him what he was trying to get under there for, and engineer said, `I am afraid of being shot,' and I told him, `We are not going to hurt you. We don't want to hurt any laboring man, or take any laboring man's money.' The engineer said, `I am not afraid of you shooting me. I am afraid of being shot from the other end of the train.' After the fireman so stated to me, and notwithstanding I was informed there was danger of fireman and engineer being shot from rear end of train, the fireman, after shutting off injector, was forced to go back to express car in front of Newman, and to remain there, and he was shot while he was being so held up there at the express car. I did not myself force him to go there. Newman did so with arms. I was backing up and assisting Newman when he took fireman there, and we took fireman there for the purpose of accomplishing robbery. * * * There was nothing said in our agreement to rob about what we would do in case of resistance. We all had guns and pistols. We had no agreement particularly to that effect; but we did not intend, in case of resistance, to get any the worst of it, if we could help it."

Appellant's first assignment is that the court erred in overruling his application for continuance, after the district attorney and private prosecutor and defendant, by his attorneys, had orally agreed to continue the case until the September term of the court, which agreement was announced to the court; whereupon the court stated he would not allow said cause to be continued, but it must proceed at once. The court qualifies this bill as follows: "I did not believe attorneys for state and defendant should be permitted to agree to continue a lot of murder cases, when I personally knew the case could be tried and disposed of. One of the defendants, to wit, Jeff Taylor, had just been brought from the penitentiary for trial on charge of murder, and when I so stated that the case must be tried no motion was made to continue." We do not think the mere agreement of counsel to continue the cause requires the court to grant the continuance; and where a trial judge refuses to ratify such agreement and continue the case, unless some legal reason is shown whereby an injustice has been done appellant, it will not be cause for reversal.

Appellant's second assignment contends that the court, at the time this case was tried, was not lawfully in session, and had no jurisdiction at said time and place to try it, because the legislature had, since the convening of the court, repealed the law fixing the time for holding terms of the district court in and for Coleman county by passing an amendment fixing the times for holding said court in said county, which terminated the February term, 1899, of said court, and this court could not again lawfully be in session before the first Monday in September, 1899; and defendant excepted to the jurisdiction of this court to try this cause at said time. The court overruled the exception. The regular time for the convening of the term of court at which appellant was tried was the first Monday in February, 1899, to continue in session four weeks. The court was organized on said day. While the court was in session and being held under the then-existing law, the legislature passed an act, with the emergency clause attached, merely adding to the term of court for Coleman county one week. The amendment provided for the term to begin the first Monday in February and to remain in session five weeks. It will be seen from this that the beginning of the term was not changed, and that the clear intendment of the legislature was simply to give one additional week to Coleman county for the district court, and the amendment was not intended to have a retrospective effect, so as to repeal the then-existing term of the district court of Coleman county. Article 5, § 7, of the constitution provides: "The state shall be divided into as many judicial districts as may now or hereafter be provided by law, which may be increased or diminished by law. He [the district judge] shall hold the regular term of his court at the county seat of each county in his district at least twice each year, in such manner as may be prescribed by law." The bare statement of this constitutional provision would certainly preclude the construction of the amendment by the legislature as contended for by appellant; his contention being that the amendment repealed the previous law whereby the session of the district court of Coleman county was authorized to begin on the first Monday in February. If this is a repeal of the old law, then Coleman county would be deprived of one term of the district court, which would be in the face of the constitutional provision quoted. We do not think the court erred in overruling appellant's plea to the jurisdiction.

Appellant's third assignment is that the court erred in refusing to set aside various jurors who stated on their voir dire that they had formed and had a clear, well-defined, and fixed opinion as to the guilty participancy of appellant in the attempt to rob the express at Coleman Junction, at the time the fireman was killed, and that it would require evidence to remove said opinion, but that they had no opinion as to the guilt or innocence of defendant upon the charge of murder in this case. The trial court appends this explanation, to wit: "Each of the veniremen stated the opinion they had was formed exclusively from hearsay, rumor, and newspaper reports; that they had no bias in favor of or prejudice against defendant; that if taken on jury they would discard this opinion, and same would not have the slightest influence on them in returning a verdict; that they would base their verdict in the case on the evidence as given on the trial under the law; that they had no opinion whatever as to guilt or innocence of defendant of the charge now pending against him. R. M. Grantham stated that he had not heard what purported to be the facts; that he had no opinion as to guilt or innocence of defendant, either of the attempt to rob or the present charge. Said Grantham was the fifteenth juror, challenged by defendant peremptorily, and stood aside. The juror J. B. Warren stated he had no opinion as to guilt or innocence of defendant on the present charge; that the opinion as to his participation in the attempt to rob was based solely upon hearsay, newspaper reports, and rumor; that he would discard said opinion, and same would not have the slightest influence in arriving at a verdict; that he would base his verdict upon the evidence given on the trial and under the law. This juror was not challenged peremptorily, but was accepted by defendant. The twelfth juryman sworn in was A. A. Griggs, who stated on his voir dire that he had no bias in favor of or prejudice against defendant; that he had not formed such a conclusion as to the guilt or innocence of defendant as would influence his action in finding a verdict; that he had no opinion whatever as to guilt or innocence of defendant of either the charge of attempt to rob or the charge in this case; that he had not heard any witness speak of the case, and had not heard what purported to be the facts of the case, either as to charge of attempt to rob or present charge of murder; that he did not have the opinion that, if Lee Johnson was killed in the attempt to rob, defendant was responsible for same, and ought to be punished; that he had no opinion in regard to that. Said juror was thereupon accepted by state. Defendant challenged him, and he was sworn as a juror; thus making the twelfth juror and completing the panel." The lengthy explanation of the trial court shows appellant...