Manley v. State

• Decision Date: 17 May 1911
• Citation: 137 S.W. 1137
• Parties: MANLEY v. STATE.
• Court: Texas Court of Criminal Appeals

Page 1137

137 S.W. 1137

MANLEY v. STATE.

Court of Criminal Appeals of Texas.

May 17, 1911.

Appeal from Criminal District Court, Dallas County; R. B. Seay, Judge.

J. D. Manley was convicted of murder, and he appeals. Reversed.

Walker & Williams, Muse & Allen, and Lewis T. Carpenter, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

In this case appellant was charged with murder, and upon a trial he was convicted of murder in the first degree, and his punishment assessed at imprisonment for life.

This is the case in which appellant, a member of the Texas National Guard, killed Louis Reichenstein at Dallas on the occasion of the visit of President Taft in October, 1909. On the occasion of this visit, at the request of the secret service men of the United States, Mayor Hay of Dallas issued a call for the company of which appellant was a member to do guard duty. It appears from the record that some days before the day of the visit of the President the officers of the company informed the members that they expected a call to do guard duty on that occasion, and for all members of the company to report at the armory at a given hour on that day. If the call was received, they would notify the members what duty was expected of each of them, and, if no call was received, they would so notify them at that hour. Members of the company at the hour stated assembled at the armory, and at this time were informed that the call had been received, and the members of the company were assigned to their duties in accordance with a plan agreed on between the officers, the secret service men accompanying the President, and the mayor of the city of Dallas. A detachment of which appellant was a member was assigned the duty of fencing off with wire a portion of Kentucky street and Parry avenue (in front of the Exposition grounds), this being the place where the President's train was expected to arrive and the President alight from the train. These members of the Guard were instructed to exclude all persons from the grounds so fenced off. After the grounds had been fenced off and all persons excluded, deceased approached and desired to pass through the fenced off grounds, giving as a reason a desire to catch a street car. Appellant was stationed at or near the point where deceased approached, and refused permission. This much may be admitted as correct from all the testimony. What took place at and subsequent to this time will be treated later on in discussing the different grounds of the motion for a new trial. This is enough to give a general idea of the case.

1. Upon the the call of the docket appellant presented an application, praying for a change of venue in the case; and, as this involves the proper construction to be placed on section 133 of chapter 104 of the Acts of the Twenty-Ninth Legislature, we here set out said section as follows: "Any officer or member of the military forces of this state, who is indicted or sued for any injury to persons or property done while performing or endeavoring to perform any duty required of him by this act, shall have the right, and it is hereby made the duty of the court in which such indictment or suit is pending, upon the application of the person so indicted or sued, to remove the venue of such cause to some court of competent jurisdiction in another county not subject to the same or some other disqualification; provided, such application is supported by the affidavit of two credible persons to the effect that they have good reason to believe that the defendant cannot have a fair and impartial trial before such court." As before stated, appellant filed a motion for a change of venue under this provision of the act, stating that he was a member of the military forces of this state and of the National Guard, and that he was indicted for the murder of Louis Reichenstein, and that the alleged offense was committed while he was performing and endeavoring to perform a duty required of him under the acts of the Twenty-Ninth Legislature, and that there existed in Dallas county, Tex., so great a prejudice against him that he could not obtain a fair and impartial trial in Dallas county, praying that the venue be changed to some court of competent jurisdiction in another county not subject to the same disqualifications. Appellant signed and swore to this application, and F. A. Logan, E. H. Roach, H. W. Kinnard, E. S. Eberly, and S. E. Moss all supported said application by an affidavit attached to the application in accordance with the provisions of law.

The county attorney filed a contesting affidavit, in which he alleged that he did not attack the credibility of the compurgators, but only their means of knowledge. If the county attorney had alleged that the compurgators were not credible persons, or that appellant was not a member of the National Guard, or that the company of which he was a member had not been called, and the company nor appellant were not at the time engaged in the discharge of duties as members of the Guard, there would have been an issue to try. But, as stated hereinbefore, the company had been called out as the whole record discloses, and duties assigned to members of the company, and appellant and other members of the company were then engaged in guarding grounds upon which the President was expected to disembark from the train, and in our opinion the change of venue should have been granted.

If it was intended that the allegations that appellant could not get a fair and impartial trial could be contested, it would have been nonsensical to have adopted this provision of the act. We already had on our statutes a provision where a man can obtain a change of venue upon an application alleging that he could not get a fair and impartial trial, supported by necessary compurgators. But this other act provides that such application may be contested, and a hearing had on the application. There is no such provision contained in the act of the Twenty-Ninth Legislature. There is no provision for a contest, when application is filed in compliance with its provisions, but it is provided that such application shall be granted upon the filing of a sufficient application, supported by the affidavit of two credible persons. With the wisdom of the adoption of this or any provision of the National Guard act this court has nothing to do. This is confided to the legislative branch of the government, and, when they act within the scope of their authority, we have nothing to do but to construe and give force to the laws they enact. We are not passing on the question of whether under the evidence the court was authorized to find that appellant could or could not get a fair and impartial trial in Dallas county, Tex., as under this special statute we do not think such issue can be raised, and, so deciding, we think the change of venue should have been granted.

2. Inasmuch as we found that the court should have granted the change of venue, we do not deem it necessary to pass on the application for a continuance filed herein.

3. In accordance with the decisions of this court, the court did not err in overruling the motion to quash the indictment. Neither did the court err in overruling the plea to the jurisdiction of the criminal district court of Dallas county, Tex. Article 30 of section 103 of the military act specially provides that when any officer or soldier is accused of a capital crime, or of any offense against...