Locklin v. State

• Decision Date: 13 May 1903
• Citation: 75 S.W. 305
• Parties: LOCKLIN v. STATE.
• Court: Texas Court of Criminal Appeals

Page 305

75 S.W. 305

LOCKLIN v. STATE.

Court of Criminal Appeals of Texas.

May 13, 1903.

Appeal from District Court, Gillespie County; Clarence Martin, Judge.

Sam Locklin was convicted of murder in the first degree, and appeals. Affirmed. Motion for rehearing overruled.

McLean & Spears, M. D. Slator, W. C. Linden, and Will G. Barber, for appellant. Moursand & Moursand, James Flack, Moore & Moore, and Howard Martin, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of murder in the first degree, and his punishment assessed at confinement in the penitentiary for life; hence this appeal.

The state's testimony shows that appellant and Ike Barber waylaid and assassinated deceased, R. F. Rowntree, about the 20th of July, 1893. Deceased at the time was en route from the town of Llano to his home, situated some 20 miles in a southwesterly direction therefrom. On the night preceding the homicide, which occurred about 9 o'clock, deceased stayed at one Byfield's, about halfway from Llano to his home. Early the next morning, appellant and said Barber, who had secreted themselves on the roadside in a little field, shot and killed deceased, who was riding in a two-horse wagon. The parties escaped, and appellant's connection with the homicide was not developed until some time during the year 1902, when he was indicted. The state's case mainly depends on the testimony of Ike Barber, an alleged accomplice, and one Mon Turner, also claimed to be an accomplice. Appellant defended on the weakness of the state's case, contending that the accomplices were not sufficiently corroborated, and also supplementing this by proof of an alibi. The venue was changed from Llano county, where appellant was indicted, to Gillespie county; the change being made by Hon. Clarence Martin, judge of said district court, of his own motion.

When the case was called for trial, appellant excepted to Hon. Clarence Martin, judge of said district court, trying said cause, on the ground that he had been of counsel for the state in the prosecution of the case. The proof, as presented in the bill of exceptions, shows that during the year 1900 said Martin was appointed by the district judge of Llano county to assist the district attorney in representing the state before the grand jury, and that at said term the matter of the homicide of R. F. Rowntree was investigated by the grand jury, Ike Barber being then charged with his murder, and that, after his appointment, said Martin, who was then a practicing lawyer of said court, did represent the state in the investigation of said charge against Barber of the murder of Rowntree. In that connection it was also shown that Ike Barber was a principal witness for the state against Locklin, and that he was a confessed principal in the murder of Rowntree, and that therefore said Martin was disqualified to try the cause. In connection with the bill of exceptions, Hon. Clarence Martin explains his connection with said cause as follows: That he was appointed by the court to assist the district attorney at the November term, 1900, of said court, and that Ike Barber was then charged with the killing of Rowntree; but there was no charge against appellant in connection with said offense, nor was it then known or suggested that he was implicated therein. That during the investigation said Martin heard some witnesses testify in the case against said Barber—particularly as to statements in the nature of confessions of said Barber—but that no testimony in his hearing or presence connected appellant with said offense. That said Martin did not know said appellant at the time, and had never heard his name mentioned in connection with the killing of Rowntree. The question, as presented, is, was Judge Martin so connected with the prosecution as to disqualify him to act as judge; that is, was he of counsel for the state, as against appellant? In Reed v. State, 11 Tex. App. 587, we had a somewhat similar question. In that case the trial judge was disqualified, on account of relationship, from trying one Stillwell, jointly indicted with Reed for murder. Stillwell had not been arrested. Reed was arrested. The judge recused himself on the ground of relationship with Stillwell. It was held in that case that, Stillwell not having been arrested, the fact that he was related to him did not affect his qualification to try Reed, who alone was on trial. The court further say, if Stillwell had been on trial jointly with Reed, that said judge would not have been competent to try the case. In this particular case the fact that the judge had never represented the state as to appellant, Locklin, although he may have been engaged in the prosecution of Barber, and had heard some of the testimony during the investigation of the case against him, it does not occur to us, disqualified him from trying appellant; that is, the same principle would apply as in the case above cited. This is not like the case of Utzman v. State, 32 Tex. Cr. R. 426, 24 S. W. 412, or, rather, in our opinion, that case supports the view here taken. For, as was said in that case, "although Judge Woodard was district attorney at the time the homicide was committed, he had nothing to do with the prosecution of said case." Nor is it like the case of Terry v. State, 24 S. W. 510. In that case, Judge Spooner, who had previously been district attorney, actually prosecuted the case against the defendant in the examining trial. It will be noted, furthermore, that, when Judge Martin officiated in Llano county with the district attorney, Locklin was not known to have any connection with the murder, nor was anything developed touching his connection with the crime. Moreover, we are not advised of any statute or law authorizing the judge to appoint an assistant district attorney. Article 38, Code Cr. Proc. 1895, authorizes the judge, in the absence of the district attorney, to appoint a district attorney pro tem.; but this was not the case here. It appears to us that the appointment by the judge of Mr. Martin was without authority of law, and he had no official character as a prosecutor. We hold there was no error on the part of the trial judge in refusing to recuse himself, because he was never of counsel for the state in the prosecution of appellant, Locklin.

On the trial of the case, appellant made a motion to sever from one A. K. Scott, who he alleges was indicted in Llano county as an accomplice in the murder of Rowntree, being the same offense alleged against appellant; that the testimony of said Scott was material for his defense, and that there was not sufficient evidence against said Scott to secure a conviction; that an indictment was then pending in Llano county against said Scott; and he asked that he be first tried, in order that he might avail himself of his testimony when acquitted. The court overruled this. When the venue in appellant's case was changed from Llano county, it does not appear that he objected thereto on the ground that he desired a severance from Scott, in order to procure his testimony, but he only objected generally to the change of venue. It may be if this objection had been urged at the time, the court would not have changed the venue as to appellant, or, if he did, he might have changed the venue in both cases to Gillespie county; and in that event appellant could have exercised his right of severance, both cases being in the same jurisdiction. But here the two cases were pending in different counties, and, if the motion had been granted, it would necessarily have operated a continuance of the case. As we understand, the statute (article 707, Code Cr. Proc. 1895) especially provides that the making of such affidavit for severance, without other sufficient cause, shall not operate as a continuance to either party. And see King v. State, 35 Tex. Cr. R. 478, 34 S. W. 282; Stouard v. State, 27 Tex. App. 1, 10 S. W. 442.

Appellant made a motion to quash the venire on the ground that 24 names were added to the venire of the week, which consisted of only 36 jurors, and that these 24 were added as talesmen, and summoned by the sheriff, and not drawn by lot. We have examined the writ, and it is somewhat peculiar in form. It first requires the sheriff to summon 36 persons who have been selected in the manner as provided by law to serve as special jurors. These were admittedly the jury for the term, and their names were drawn by lot. After this, in the same writ, the sheriff was instructed to summon 24 additional qualified jurors of Gillespie county to appear before the district court on the day set for trial. The court, in his explanation to this bill, states that on the first day of the term of the court it was ascertained that the jury commissioners had only selected 36 special jurors to serve for the first week of the court, and the court, knowing that said number was insufficient from which to procure a jury, ordered the clerk to draw the names of 36 regular jurors, as required by law, and place them in the list in the order drawn, which was done, and the sheriff was ordered to summon 24 additional qualified talesmen, after summoning the 36 regular jurors, which was done by him; that said 36 regular jurors were summoned, and they were first tendered as jurors upon this trial in their regular order. After this was exhausted, the additional talesmen who had been summoned were brought in, and the jury completed; defendant having exhausted only 14 challenges. The effect of this order for special venire was to order a venire of 36 jurors to try the case, and the remainder of the jurors summoned were talesmen, and not a part of the special venire, which, in accordance with law, is required to be drawn by lot from the body of jurors selected for the term of court. While the action of the court in ordering the sheriff to summon the talesmen, in connection with the special venire, was irregular, yet this was no reason to quash the special...