Luster v. State

• Decision Date: 08 November 1911
• Parties: LUSTER v. STATE.
• Court: Texas Court of Criminal Appeals

141 S.W. 209

LUSTER v. STATE.

Court of Criminal Appeals of Texas.

November 8, 1911.

Rehearing Denied December 6, 1911.

Appeal from District Court, Marion County; P. A. Turner, Judge.

Marion Luster was convicted of murder, and he appeals. Affirmed.

J. M. Singleton and J. H. Benefield, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

PRENDERGAST, J.

The appellant was indicted by the grand jury of Marion county for the murder of his wife on April 26, 1910, was convicted, and the death penalty inflicted.

Appellant made a motion for a continuance on two grounds: The first, because his attorneys, who were appointed by the court, had not had sufficient time to prepare the defense for the defendant. The other ground was on account of the absence of two witnesses.

The facts show that the defendant was indicted October 31, 1910, and was then in the Marion county jail; that the court that day set November 18th for the trial, and on October 31st appointed attorneys to represent him; that he was afterwards removed from Marion county jail to the Harrison county jail for safe-keeping, and brought back to Marion and replaced in the jail of that county on November 16th. The motion does not set up in what particulars his attorneys were unable to prepare his case for defense, and shows no grounds for continuance.

As shown by the judge in allowing the bill to the action of the court, denying the motion for continuance, one of the witnesses for whom the application was made was present and testified on the trial, and, after the application was overruled, defendant made no effort to secure the other witness. "He could have attached her and procured her attendance in plenty of time to have had her evidence on the trial. She was a first cousin of the defendant. She lived about 18 miles from Jefferson. Trial lasted 18th and 19th; argument closed night of the 19th." So that no diligence was shown to procure the attendance of the other witness. Besides this, one of the witnesses for whose testimony the application was made testified the reverse of what appellant swore he would testify, in his application for continuance. Presumably the other absent witness, if she had been procured, would have done the same thing, and her evidence is not shown to have been sufficiently material anyway. There was no reversible error in the court overruling the motion for continuance.

Appellant made a motion to quash the indictment, because the face of it shows that the grand jury was organized at the November term, 1910, when in truth the grand jury returned the indictment and was organized at the October term, on October 31, 1910. The motion and the record conclusively show that the term of court began and the grand jury was organized on October 31, 1910, and adjourned on November 26th. The indictment fully complies with all the requisites of the statute. Code Cr. Proc. 1895, art. 439. The first of it is: "In the name and by the authority of the state of Texas, the grand jurors for the county of Marion, state aforesaid, duly organized as such at the November term, A. D. 1910, of the district court for said county, upon their oaths in said court, present," etc. As the term of the court began on the last day of October, exclusive of that one day, and the balance of nearly four weeks was held in November, it might properly be designated in a general way as the November term. "The indictment is sufficient if the averments allege definitely that the indictment was the act of the grand jury of the proper county, and that it was presented in the district court of the county when that grand jury was in session." Wright v. State, 35 Tex. Cr. R. 367, 33 S. W. 973; Hart v. State, 44 S. W. 1105. The lower court correctly refused to quash the indictment on the ground stated.

Appellant made this motion: "Now comes the defendant in the above-styled and numbered cause, and respectfully moves the court to quash the service of the indictment in said cause, a certified copy of which was purported to have been served upon this defendant for the following reasons: `That the said copy, served upon this defendant by the sheriff of Marion county, Tex., was and is not a certified copy of the indictment as is required by the state to be served upon this defendant two days before the trial of the defendant upon the charge of murder, and that the instrument so served upon him is hereto attached, marked `Exhibit A,' and made a part of this motion. Wherefore, defendant prays the court that said cause be continued until such time as this defendant has been legally served with a certified copy of the indictment the length of time before the trial of said cause as provided by law." The court heard evidence when this motion was presented, and the judge, in giving the bill to his action in overruling it, states this: "This term of court opened 31st day of October, 1910. The indictment in this case was presented and filed same day. November second case was set for trial on November 18, 1910. The clerk prepared a copy of the indictment, and delivered it to the sheriff, to be delivered to the defendant. W. B. Stallcup was sheriff. Hill Thomas was his deputy. This copy was delivered by the sheriff to Hill Thomas, to be delivered to the defendant, which he did, on November 2, 1910. When the copy was delivered by the clerk to the sheriff, he issued no precept. The sheriff having no precept made no return showing service. The above facts were testified to by the sheriff and his deputy. The copy served on defendant was a true and correct copy of the original bill of indictment, as presented by the grand jury, but it was not certified by the clerk at all. The original bill of indictment, as returned by the grand jury, had four witnesses indorsed on it. The copy delivered to defendant had these same four witnesses indorsed on it. It was a literal copy. After this the district attorney discovered two other witnesses, and wrote their names on the back of the indictment. These two names, of course, did not appear on the copy served on defendant. After these facts were established, the court held that defendant's right to be served with a certified copy of the indictment two days before trial had been substantially complied with, and overruled the motion, to which defendant excepted." It further appears from this bill that when this motion was made the clerk issued another copy of the indictment, and certified thereto, and issued a precept to the sheriff of the county to serve it on the appellant, and the sheriff did so, and made his writ on the precept that day; but the court says he did not take that into consideration in passing on the matter.

It will be seen by appellant's motion that his motion is to quash the service of the indictment; but, to take it as a whole, we understand that he sought to quash this, because the copy served on him was not a certified copy of the indictment. Section 10, art. 1, of the Bill of Rights of the Constitution, on this subject, is, "In all criminal prosecutions the accused shall * * * have the right to demand the nature and cause of the accusation against him and to have a copy thereof," not that he is to have a certified copy thereof. Article 540, Code of Criminal Procedure, requires that in every case of felony, when the accused is in custody, or as soon as he may be arrested, "it shall be the duty of the clerk of the court where an indictment has been presented immediately to make out a certified copy of the same and deliver such copy to the sheriff, together with a writ directed to such sheriff, commanding him forthwith to deliver such certified copy to the defendant." The next article makes it the duty of the sheriff to immediately deliver this copy of the indictment to the defendant, and return the writ to the clerk issuing it, with his indorsement thereon, showing when and how it was executed. Article 567, Id., states that the defendant shall be allowed two entire days, exclusive of all fractions of a day, after his arrest and during the term of court to file written pleadings; and the next article states that where the defendant is entitled to be served with a copy of the indictment he shall be allowed two days time, mentioned in the preceding article, to file written pleadings after such service. Article 432 requires that the state's attorney shall prepare all indictments, and shall indorse thereon the names of the witnesses upon whose testimony it was found.

This court, in construing this latter article, has repeatedly held that where such names are not placed upon the indictment, and the copy served upon the accused has not these names on it, that the statute on this subject was directory, and the failure to place the names thereon and furnish the accused with a copy of them was not reversible error. Hart v. State, 15 Tex. App. 202, 49 Am. Rep. 188; Walker v. State, 19 Tex. App. 176; Leslie v. State, 47 S. W. 367. In construing the other articles above named, this court, in Barrett v. State, 9 Tex. App. 35, through Judge Clark, says: "The mere fact that the clerk failed to issue a writ to the sheriff, directing him to serve the defendant with such copy, which is the form prescribed by law for serving copies of indictments (Code Cr. Proc. art. 504), did not affect the substantial validity of the service, especially in view of the fact that, upon the case being called for trial at the same term of the court, no objection was interposed by the defendant to the service as made, and the cause was continued to a succeeding term upon his own application. The omission to issue the writ affected the records of the court, and not the rights of the defendant; and the writ and return are important, chiefly as preserving record evidence that the law has been complied with. The defendant received in person a certified copy of the indictment, and he could have received nothing more, had the writ issued. But, even had the first service...