Lax v. State

• Citation: 79 S.W. 578
• Parties: LAX v. STATE.<SMALL><SUP>*</SUP></SMALL>
• Decision Date: 18 December 1903
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

79 S.W. 578

LAX v. STATE.^*

Court of Criminal Appeals of Texas.

December 18, 1903.

Appeal from District Court, Hunt County; T. D. Montrose, Judge.

W. H. Lax was convicted of murder, and appeals. Reversed.

H. D. Wood and A. K. Doss, for appellant. Sam D. Stinson and Howard Martin, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was given the death penalty for the murder of an infant.

When the case was called for trial, application for change of venue was made and overruled. The bill of exceptions was filed July 28th, the court having adjourned on the 11th day of the same month. Article 621, Code Cr. Proc. 1895, provides that the evidence in regard to change of venue must be perpetuated in bill of exceptions prepared and filed during term of court. Blackwell v. State, 29 Tex. App. 194, 15 S. W. 597; Pruitt v. State, 20 Tex. App. 129; Bowden v. State, 12 Tex. App. 246; Adams v. State, 35 Tex. Cr. R. 285, 33 S. W. 354; Kutch v. State, 32 Tex. Cr. R. 184, 22 S. W. 594; Smith v. State, 31 Tex. Cr. R. 14, 19 S. W. 252; Miller v. State, 31 Tex. Cr. R. 609, 21 S. W. 925, 37 Am. St. Rep. 836; Jackson v. State, 30 Tex. App. 664, 18 S. W. 643; Wright v. State, 40 Tex. Cr. R. 447, 50 S. W. 940; Cortez v. State, 69 S. W. 536, 4 Tex. Ct. Rep. 1. This requirement of the statute is not relieved by the recent statute authorizing bills of exception to be filed out of term time, and within 20 days after the adjournment of the court. Blackwell and Cortez Cases, supra. While, under the two last-named cases, the question in regard to bill of exceptions was not discussed, the relation of the statute of 1887 with reference to filing statement of facts after term time was; and it was held that by virtue of article 621, Code Cr. Proc. 1895, the evidence introduced in regard to the change of venue must be prepared and filed during the term time, and that this statute was not altered or changed by the terms of the acts of 1887 extending the time beyond the adjournment of court for filing statement of facts. But if this were not true, the bill as prepared and filed in regard to this matter would show no error. The evidence therein stated did not show that the court abused the legal discretion authorized by the statute. In fact, the testimony was very weak, as we understand it.

There are several bills of exception reserved to the rulings of the court while impaneling the jury. It is claimed by appellant that the court, during the impaneling of the jury erroneously overruled his cause for challenge in regard to several of the jurors, which forced him to exhaust a corresponding number of his peremptory challenges. When the peremptory challenges were exhausted, other jurors were tendered, and the state agreed to extend to appellant 11 additional peremptory challenges, to cover those in which the court had overruled his challenges for cause. This was taken advantage of by appellant. It is not shown in any of the bills of exception that he had exhausted these latter peremptory challenges, and thereafter an objectionable juror was placed upon the jury. So the bills, as presented, show no error.

Maud Ross, mother of the alleged murdered infant, while testifying in behalf of the state, was asked who was the father of her child alleged to have been killed on June 11, 1903, and, further, how long before the birth of this child had she had sexual intercourse with appellant? Her answer was that appellant was the father of the child, and that he began having sexual intercourse with her a little more than a year before the birth of the child. The objections were that this was irrelevant and immaterial, and no part of the res gestæ, and prejudicial of appellant's rights before the jury. This is explained by the court. He states that this witness was asked who was the father of the child, and how she knew who its father was; and she answered that appellant was the father of the child, and she knew it because he was the only one who had had sexual intercourse with her, but she was not asked the particulars in relation thereto, nor the time of it. Defendant, on cross-examination, went into the particular acts of intercourse, and the time and place of each, and attempted to prove by her that she was willing to such acts, and sought opportunities for the same. And the state then, upon re-examination, asked her questions in rebuttal of these matters. There was no error in this.

Neither was there any error in the refusal of the court to quash the indictment. The bill of exceptions is very meager, but it shows, when taken in connection with the explanation of the judge, that the grand jury had been discharged, and were resummoned, and, upon their being called together, two of the grand jurors failed to appear, and their places were supplied. The facts in relation to this matter are not shown. As the bill is presented to us, there is really no question for discussion.

Nor is there any error or injury shown in regard to the matter set out in bill of exceptions No. 8. Appellant's counsel asked to talk with the two witnesses, Maud and Lola Ross. The court informed him he could do so, if they would talk with him. They declined to do this. The explanation to the bill shows "that the court informed counsel they could talk with the girls if they would talk with them, and the testimony introduced upon this motion did not show that they [defendant's counsel] were refused all necessary access to the witnesses, but, on the contrary, they were afforded all necessary access to the witnesses, and could have talked to them out of the hearing of their uncle Mr. Hillin, or any one else." The motion set up that they were not permitted to talk with these children out of the presence of their Uncle Hillin. But the bill, as qualified by the judge, shows this was not true. As the bill presents the matter, we find there was no injury.

Witness Maud Ross, while upon the stand, was asked if she did not have a conversation with defendant about a month before the 11th of June, the day of the birth and death of her child, in which defendant told her that she was pregnant, and that she was crying, and he told her to hush, that no one would know it, and that he would make away with it, and that she told defendant he could not do it. This was clearly admissible. The court explains this as follows: "State's counsel asked witness when was it she found out she was going to give birth to a child. She answered, `About one month before the child was born.' Being then asked how she found out, she detailed substantially what is set forth in this bill."

On the day following the homicide, this witness, Maud Ross, wore one of Mrs. Bell's dresses. Motion was made to exclude this testimony, or, rather, exception was reserved to its introduction, because irrelevant, immaterial, no part of the res gestæ, and calculated to inflame the minds of the jury against defendant. The court explains this bill by stating: "Defendant's counsel, on cross-examination, had asked witness if she had not worn her dresses longer than the one she was then wearing, and endeavored to show that she had been dressed in that dress especially for the trial. The state, in rebutting said testimony, asked the girl about the length of the dresses she had worn before her child was born, and she disclosed the fact that the day after the birth of her child she wore one of Mrs. Bell's dresses because her own dresses were all soiled, and therefore the only long dress she ever wore was not her own." As presented, this was admissible.

Mrs. Jordan, mother of appellant, was asked: "Did you not, about one month prior to the killing of the infant baby of Maud Ross, have a conversation with Mrs. Allman, in which you told Mrs. Allman that you (Mrs. Jordan) did not care anything about the nasty, stinking thing, nor who was the father of the said Maud's unborn child?" To this question exception was reserved, because it was irrelevant, immaterial, and no part of the res gestæ, and hearsay. The court explains this by stating that "state's counsel, after witness had stated she had never talked to any one about Maud Ross" condition before the birth of the child, asked the question. This was done, apparently, for the purpose of contradicting the witness, and showing her feelings toward Maud Ross." Neither in the bill nor in the explanation is it shown that the question was answered, or what the answer of the witness would...