King v. State

• Decision Date: 16 March 1895
• Citation: 29 S.W. 1086
• Parties: KING v. STATE.
• Court: Texas Court of Criminal Appeals

29 S.W. 1086

KING v. STATE.

Court of Criminal Appeals of Texas.

March 16, 1895.

Appeal from district court, Cherokee county; James T. Polley, Judge.

Indictment against G. C. King for murder. From a conviction and judgment for murder of the first degree, defendant appeals. Affirmed.

Hamp P. Abney, for appellant. M. M. Imboden, Dist. Atty., and Mann Trice, Asst. Atty. Gen., for the State.

HENDERSON, J.

This is a conviction for murder of the first degree, with the death penalty assessed. Upon the trial, appellant filed his first application for a continuance, which showed that appellant desired the testimony of H. H. Parker, who resided in Bexar county, and Sam Smith, whose residence was not known, but who was believed to be in Dallas county, and Andrew Harrison, who resided in Cherokee county. The appellant was indicted on August 20, 1894, and was arrested immediately thereafter. The defendant was in custody on this charge from November 13, 1894, and no act of diligence is shown until December 1, 1894, when, for the first time, he caused attachments to issue in this case. If, however, it be conceded that the defendant was not put upon notice of the importance of this testimony until after the first trial of this case, which occurred November 26, 1894, being at the same term of the court, it does not appear to us that the testimony as to Parker was material, or that the testimony of Smith, if it could have been procured at all, was probably true, and it is not disclosed what defendant expected to prove by the witness Harrison. The defendant states as to Parker that he expected to prove by him that there was another man with him when the bottle of mucilage was bought from said Parker, in Tyler, Tex., and that defendant did not buy said mucilage; but the fact that the bottle of mucilage in question was subsequently found in defendant's possession at Story's, a few miles from Tyler, where he was working, renders it immaterial whether he bought it himself, or some one who was with him bought it for him. As to witness Smith, it is shown that he was an ex-convict, and it is not shown that he had been pardoned, or would have been permitted to testify could his attendance have been procured; and it is exceedingly improbable that this witness would have taken upon his own shoulders the full responsibility for the murder of Dr. Drewry, and would have exculpated the appellant, as alleged in his motion for continuance. Besides, the testimony in the case shows, if said testimony could have been procured, that there was no probable truth in it, and also the residence of this witness is not shown, and no reasonable probability is shown that his attendance could have been procured by a continuance of the case.

The appellant objected to the introduction of the witness Carroll Smith, because he was not placed under the rule which had been invoked by the state. The judge's explanation to the bill shows that, at the time the witnesses were placed under the rule, it was stated that there were other witnesses who would be sworn and placed under the rule as soon as they came in....