Leeper v. State

• Decision Date: 24 May 1890
• Citation: Leeper v. State, 14 S.W. 398, 29 Tex.App. 63 (Tex. App. 1890)
• Parties: LEEPER <I>et al.</I> v. STATE.
• Court: Texas Court of Appeals

Page 398

14 S.W. 398

LEEPER et al. v. STATE.

Court of Appeals of Texas.

May 24, 1890.

Appeal from district court, Coryell county; C. K. BELL, Judge.

Defendants Leeper and Powell were jointly indicted, tried, and convicted in the first degree for the murder of J. T. Mathis, in Coryell county, Tex., on the 17th day of December, 1889. The death penalty was assessed against each of them. Mathis, old man Harvey, and others, in different wagons, went to Gatesville with cotton to sell on the morning of December 29, 1889. Two persons stopped Mathis while on his way home about dusk, and, in an attempt to rob him, shot and mortally wounded him. Almost immediately afterwards, on the same road, and in sight of the place where he was shot, two persons, one of whom was clearly identified as Powell, assaulted and attempted to rob W. H. H. Harvey, Will Harvey, and Jack Bates, shooting W. H. H. Harvey in the attempt. In resisting the assault, W. H. H. Harvey struck Powell two blows on the head and back with a heavy whip handle. The man who aided Powell in the assault resembled, and was believed by one of the witnesses to be, Leeper. Other witnesses saw Leeper and Powell together on the road on which the assaults upon Mathis and the Harveys were committed as late as two hours before the time of the assaults. Both defendants admitted that they were on the road referred to on the afternoon of December 29, 1889, but claimed to have returned to Gatesville at the time of the alleged assaults. Gatesville was 10 miles distant from the place of the assaults. After the arrest of Powell, on the next day, his shirt was removed, and his back showed two bruises indicating that he had been struck as many blows. Alibi was the defense interposed by the defendants, but no witness fixed their whereabouts at the time Mathis was shot. J. V. Buster testified that they came to his house on the Sunday before Mathis was shot. They left his house to go to Gatesville on the day of the shooting. Witness did not know when they returned, but they were at his house when he, witness, got up on the next morning.

Upon the law of circumstantial evidence the court gave in charge to the jury the usual form of instruction, but in addition concluded as follows: "If you can account for or explain the facts and circumstances which you find from the evidence to be true upon any reasonable theory or hypothesis consistent with the innocence of either of the defendants, then as to such defendant you must find a verdict of not guilty."

Code Crim. Proc. Tex. art. 636, provides that a trial juror may be challenged for cause, on the grounds, inter alia, "that he is neither a householder in the county nor a freeholder in the state."

J. E. Thomas and G. P. M. Turner, for appellants. Asst. Atty. Gen. Davidson, for the State.

WILLSON, J.

Over the defendants' objections, the state was permitted to prove that a few minutes after Mathis, the deceased, was attacked and shot, and at the same locality. Bates and the two Harveys were assaulted by two persons; that the elder Harvey was shot by said two persons, and severely but not mortally wounded; that one of said two persons making said assault was the defendant Ed. Powell, and that the other one resembled the defendant Leeper; that said assault was made by said two persons for the purpose of robbing the persons assaulted. Defendants reserved a bill of exception to the admission of this testimony, from which it appears that the learned trial judge admitted it upon the ground that it was res gestæ of the assault made upon Mathis, the deceased. We coincide with the trial judge in his view of the testimony. The assaults upon Bates and the two Harveys were almost simultaneous with the previous assault made upon Mathis, and were made at the same place. Robbery was manifestly the motive actuating the assailants. They had deliberately planned the robbery of the parties assaulted, and had laid in wait for them at the place where the assaults were committed. Each of the assaults was a part of the general scheme, — a part of the conspiracy to rob the persons assaulted. They were so closely connected with, related to, and illustrative of each other, as to make each res gestæ of the other. This testimony was essential to identify the parties who assaulted and shot Mathis, and to show the motive and intent of such assault. It bore directly upon the main issue in the case, and was not extraneous matter within the meaning of the rule which requires that the jury should be instructed to restrict their consideration of extraneous matter adduced in evidence to the specific purpose for which it was admitted. McKinney v. State, 8 Tex. App. 626; Willson, Crim. St. § 2344. We hold that said testimony was admissible, and that it was not required that the court should instruct the jury as to the purpose for which it was admitted, and to limit their consideration of it to such purpose. Furthermore, the main if not the sole reason of the rule which requires the court to restrict the jury in the consideration of extraneous matter admitted in evidence does not obtain in this case. Defendants were being prosecuted for the murder of Mathis by shooting him immediately before the attack was made upon Bates and the Harveys. It was conclusively proved that Mathis died within a few hours from the effects of that shooting. None of the other parties assaulted were killed. Hence the jury could not have been influenced or misled by the testimony relating to the assaults upon Bates and the Harveys to convict the defendants of those assaults. It is not clear to the mind of the writer that in such case, even if the matter admitted in evidence was extraneous, it would be error to omit to give an instruction limiting its consideration by the jury. It would be the better practice, perhaps, in such case to give such an instruction, but it is not necessary that this question should be here determined.

It is made to appear by another bill of exception that after the defendant Ed. Powell had been arrested and placed in jail his shirt was taken off his body by the jailer, and marks or bruises were found upon his body, indicating that he had been struck one or more blows. This testimony was objected to by the defendant upon the ground that it was compelling the defendant to testify against himself. We do not think that the bill of exception shows that any error was committed in this matter. It does not appear that the defendant was compelled to expose his body, or that his shirt was removed without his consent; nor is it shown by the bill of exception what injury or prejudice might have been caused said defendant by the admission of said testimony. In the manner in which this ruling of the court is presented by the bill of exception, it does not appear that any material error, if error at all, was committed. Willson, Crim. St. § 2368.

There is but one bill of exception reserved to the charge of the court, and that is that it does not instruct as to the law where a homicide is committed by a person who at the time is in a state of intoxication. We are of the opinion that such instruction was not demanded by the evidence. There is no evidence in the record that the defendants were drunk at the time of the homicide. On the contrary, the evidence shows that the homicide was deliberately committed by persons who evidently were in possession of their full mental powers, and whose purpose was to rob, even at the expense of human life.

Counsel for the defendants object to the charge of the court upon circumstantial evidence. No objection was made to this portion of the charge in the court below. While the last sentence of the said portion of the charge may not be correct, and should have been omitted, still the error, if error it be, was not, in view of the evidence in the case and of the preceding portion of said charge, calculated to mislead the jury, or in any manner to injure the rights of the defendants. If said portion of the charge had been excepted to we are not prepared to say that we would hold it to be free from error.

With respect to the absent testimony set forth in defendants' application for continuance, it is apparent, we think, in view of the evidence adduced on the trial, that said testimony was not probably true. Hence the refusal of the application for a continuance does not afford good ground for a new trial. Willson, Crim. St. § 2186.

It is made a ground in the motion for a new trial that B. F. Smith, who served on the jury in the trial of the cause, was not a householder in the county, or a freeholder in the state. When tested upon his voir dire as to his qualifications to serve as a juror, the said Smith gave an affirmative answer to the question, "Are you a householder in the county, or a freeholder in the state?" Defendants and their counsel state, under oath, that at the time of accepting said juror they were ignorant of his disqualification, and did not ascertain that fact until after the conclusion of the trial. We will not stop to inquire into and determine the question as to the competency of the juror, for the reason that the mere disqualification of the juror is not a valid ground for a new trial. It is not a statutory ground. Code Crim. Proc. art. 777. In order to constitute it a good ground for new trial it must be further made to appear that probable injury had resulted to the defendant by reason of such juror having served upon the trial. O'Mealy v. State, 1 Tex. App. 180; People v. Scott, 22 N. W. Rep. 274, 6 Crim. Law Mag. 334, and note. There are some decisions of this court which hold to the contrary of the rule above stated. Lester v. State, 2 Tex. App. 433; Armendares v. State, 10 Tex. App. 44; Boren v. State, 23 Tex. App. 28, 4 S. W. Rep. 463; Brackenridge v. State, 27 Tex. App. 513, 11 S. W. Rep. 630. These decisions are not, we think, after a more thorough consideration of the question, consistent with the statute, and we...