Kelly v. State

• Decision Date: 16 October 1912
• Parties: KELLY v. STATE.
• Court: Texas Court of Criminal Appeals

151 S.W. 304

KELLY v. STATE.

Court of Criminal Appeals of Texas.

October 16, 1912.

Rehearing Denied November 27, 1912.

Appeal from District Court, De Witt County; John M. Green, Judge.

Henry Kelly was convicted of murder in the second degree, and he appeals. Affirmed.

Proctor, Vandenberge & Crain, of Victoria, S. C. Lackey, of Cuero, and W. T. Bagby, of Hallettsville, for appellant. Davidson & Bailey and Waldeck & Hartman, both of Cuero, and C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant was indicted, charged with murder, tried and convicted of murder in the second degree, and his punishment assessed at five years' confinement in the penitentiary.

Appellant's first assignments relate to the action of the court in overruling his application for a change of venue. It appears from the record that on the last day of the term at which appellant was tried he presented to the court for approval his bills of exception, in regard to the overruling of this plea, and the court on that day indorsed thereon a refusal of same because they were not full and correct bills, and stated he would prepare and file his own bills, and later the court did make and file bills of exception. Appellant insists we should consider his bills. Read in the light of the bills prepared and filed by the court, it is manifest that the bills prepared and presented by appellant were not complete, and, as presented in these bills, there is no error in overruling the application for a change of venue.

Appellant is not entitled to have his bills considered, the law pointing out the method for him to pursue in case the court declines to approve a proper bill. When the court rejected the bills on the day presented on the grounds he did, appellant should have proven them by bystanders, if they were correct, and, when he fails to do so, we will consider the bills prepared by the court.

There was no error in permitting witnesses to state what the sheriff said in regard to the result of the election. The witnesses testify that appellant was in 15 or 20 feet of the sheriff when he made the statement, and the statement was made loud enough for a man to hear it at that distance. The evidence is conflicting as to whether or not defendant knew he had been defeated for constable at the time of the difficulty. The defendant's evidence would present the theory he thought he was elected by a small majority; while the evidence for the state would show that he knew he was defeated in fact had so stated himself to a witness, and that he went shortly thereafter to a point where deceased was sitting and the difficulty resulted. It was a material inquiry as tending to show motive, and all evidence which would tend to show that defendant knew the result would be admissible.

There was no error in admitting in evidence the bullet found in the blood on the ground where the killing occurred. The bullet that killed deceased entered the right breast of deceased between the nipple and collar bone, passed through and made its exit on the left side. The doctor testified that, if not deflected, it passed through the lungs, and near or through the heart. The position of deceased at the time he was shot was a contested issue, and the finding of this bullet at the place it was found would have a strong bearing on this issue. The bullet was shown to be of a size that fit defendant's pistol, and was in a pool of blood that must have come from deceased.

While Wm. Hoffman was on the witness stand he was permitted to state that he had been arrested by appellant at a given time charged with theft of cattle. This was objected to by appellant, and, if this was all his testimony, the objection would be well taken. State's counsel stated this was only for the purpose of fixing time and place, and followed it with proof by the witness that appellant at that time made Hoffman the proposition if that, "if he would tell on George Thomas (deceased), he (appellant) would turn him loose." Under the record in this case this testimony was decidedly admissible, for the evidence would show that the cause of the trouble between appellant and deceased was occasioned by appellant's insistence on prosecuting deceased for cattle theft, and, if he were willing to release another person charged with the same character of offense, if he would give evidence against deceased, it had a tendency to show the state of his mind towards deceased, and who really was in fact responsible for the bad state of feeling between the two men (theretofore friends), and which finally culminated in the death of one of them. The state was further permitted to show that this witness had been summoned by defendant. Taking into consideration the cross-examination of this witness, this presents no error.

Defendant, when he arrived at home, called Dr. Hartman to attend the wound on his face. Appellant's contention was that this wound was inflicted by deceased just prior to the time he shot him. The state's contention was that deceased had no knife in his hand, and did not cut appellant, and that he was not cut at the time he left the scene of the difficulty. Dr. Hartman testified to the nature and character of the wound, and he then was asked the question: "If a man were lying on the ground, and that wound inflicted while in that position, and after the infliction of the wound the man drew a pistol and fired a shot, and then got up and walked 10 or 15 feet and turned and looked back, would the presence of blood have appeared on his face at that time?" To which question the witness answered that it would, and enough would have flowed from this wound for it to have gotten down on his clothing. This testimony was objected to by appellant, and a proper bill reserved. Dr. Hartman had qualified as an expert, and stated he was a graduate of a well-known medical college, explained the wound and the blood vessels necessarily severed, and the knowledge he demonstrated he possessed rendered the testimony admissible.

Defendant filed an application for a continuance, naming a number of witnesses, which was by the court overruled. At the close of the testimony, the state proved by the sheriff that the presence of all these witnesses had been secured but one, and the testimony of the wife of this absent witness was introduced to show that he was in such a mental condition, if present, he would not be a competent witness. When the state offered to prove the presence of these witnesses, defendant objected, when the state's counsel stated his only purpose was to prove their presence in answer to the application for a continuance. It was merely shown they were present. This presents no error. If the counsel thought it would injure his client to merely show their presence, if he had requested the retirement of the jury, doubtless the court would have granted the request. Since appellant had filed an application for a continuance, on account of their absence, it was necessary to make it known to the court that they were present, otherwise, in case of conviction, the court might feel compelled to grant a new trial, or this court reverse the case, when, in fact, no just ground for complaint would exist if it were known that the witnesses attended court, and yet were not called by appellant. The application for continuance was not introduced before the jury, nor the witnesses called to the stand. The sheriff was merely permitted to state they were in attendance on court, without stating who had them summoned.

When the witness W. S. Smythe was on the stand and had testified to material facts in behalf of defendant, on cross-examination he was asked if he had not, at the prior term of court, made an affidavit to secure a change of venue for defendant. He at first denied doing so, but subsequently admitted doing so, but denied he knew what was in the application made by appellant. The state was permitted to show that in his affidavit he had stated he had "been fully informed of the contents of and had read the application for a change of venue filed by appellant, and that the facts therein stated were true." This testimony properly went to the interest and bias of the witness, and would aid the jury in passing on his credibility, and was so limited by the court in his charge.

There was no error in refusing to permit appellant to state while on the witness stand that Mr. Corcoran had told him that he had seen two cattle in Steinemann's brand (and not the brand of deceased) in a certain pasture, it appearing that deceased had sold cattle to the man who placed the cattle in the pasture. In so far as this record discloses, Mr. Corcoran was living and within reach of the process of the court, and, if this testimony was desired, he should have been summoned and placed on the stand. The testimony offered was hearsay and inadmissible.

Marcus Morrow, a witness for defendant, had testified in behalf of defendant, and, in addition to testifying to threats made by deceased, had testified that deceased, Thomas, had admitted to him that, in fact, he had stolen the one head of cattle, and got him to go and see Joe Bennett; that deceased had told him that Bennett was the only man who could hurt him, and wanted him, witness, to find out if Bennett was going to tell it. The state proved that deceased was not indicted for the offense; that witness Morrow was a member of the grand jury that investigated the case, and had not called the attention of the grand jury to the facts he knew (the alleged confession of deceased), and had not had Bennett summoned before the grand jury. As a person who becomes a member of the grand jury is required to take an oath that he will leave no person "unpresented for love, fear, favor, affection or hope of reward, but shall present things truly as they come to his knowledge," this testimony was admissible as affecting the credit to be given by the jury to his testimony, and the court so limited it.

While the...