March v. State

• Decision Date: 01 January 1875
• Citation: 44 Tex. 64
• Parties: S. W. MARCH v. THE STATE.
• Court: Texas Supreme Court

44 Tex. 64

S. W. MARCH

v.THE STATE.

Supreme Court of Texas.

1875.

APPEAL from Smith. Tried below before the Hon. J. L. Camp, judge of the Criminal District Court for the city of Tyler.

S. W. Marsh was indicted in the District Court of Rusk county for an assault on one Greenwood, in the town of Mount Enterprise, in said county, on the 23d day of October, A. D. 1871, with the intent to murder him, the said Greenwood. The venue of the suit was changed to the District Court of Smith county, and the case placed on the criminal docket of the District Court of said last mentioned county.

After remaining on the criminal docket of the District Court of Smith county several terms, and until after the creation of the criminal court for the city of Tyler, in Smith county, it, together with the other criminal cases on the criminal docket of the District Court of Smith county, was transferred to the criminal court for the city of Tyler.

At the July term, 1875, of the criminal court, the case was called for trial.

The facts are substantially as follows: Barthold, a witness for the State, testified that he knew appellant, and Griffin, Gaddy, and Greenwood; that appellant and Griffin had a quarrel in the town of Mount Enterprise, in Rusk county, in the evening of the day on which the shooting took place, a few hours before the shooting occurred; that about dark, after witness had closed his business house and gone home, he heard the report of one or two firearms; looked out and saw two ladies going in the direction of appellant's store, whom he took to be appellant's wife and daughter; that he then heard the reports of a number of guns and pistols, but saw no one but a negro standing in front of appellant's store; that he did not know who did the shooting, but that next morning he saw a number of bullet holes in the front part of appellant's storehouse.

Ross, a witness for the State, testified that he lived in Mount Enterprise, Rusk county; was standing in the gallery of Norvell's store, in the month of October, 1871; heard loud talking; recognized the voice of appellant, and saw him walking in the direction of Griffin, Gaddy, and Greenwood, who were in the street at the time; that appellant approached near to where they were, and turned and walked in the direction of his store; that he then heard the report of two guns, and saw the blaze of the guns, but did not know who fired the shots; that there was then a good deal of shooting, but that he could not tell who shot, and that next morning he saw thirty or perhaps forty shot-holes in the front part of appellant's house.

Griffin, a witness for the State, testified that he lived three or four miles from Mount Enterprise; had a grocery store about fifty or seventy-five yards northeast from appellant's business house; was in Mount Enterprise in the month of October, 1871, and that about dusk witness, Gaddy, and Greenwood were in the street preparing to go to a show; that appellant came up to them in an excited manner, and Greenwood asked him if he wanted to scare anybody or wanted a row with any one, and that appellant remarked, “come on and I will get you;” that appellant walked to his store, about thirty steps distant, and got his gun and fired at witness; that witness jumped behind a house that was near to him and at the same time heard the fire of another gun, but did not see at whom it was fired; that witness had a pistol and began to fire at appellant's house from behind the house where he was standing, and emptied his pistol in that direction; that he had no gun at the time, but went and got one immediately, and fired it also in the same direction; that neither Greenwood nor Gaddy was armed so far as witness knew; that they did not have guns or any weapons that were visible; that witness saw Greenwood and Gaddy after the firing was over, and that both of them were wounded; that Greenwood was shot in the thigh, and that he saw the wound and blood; that if any persons shot besides himself and appellant, as above stated, he did not see them; that witness and seven or eight other persons were going to a show that evening at Shiloh Church, about four miles distant; that he, Greenwood, and Gaddy were going after their horses and had bridles in their hands; that at the time of the shooting Gaddy and Greenwood were rather in front of appellant's house, about thirty steps distant therefrom; that witness did not know that there was a show that night, but understood from others that there was to be one; that he did not know what kind of a show it was; that he had no intention of attacking appellant then or at any other time; that the stable where they were going after their horses was east of witness's grocery, and that appellant's storehouse and residence are southwest from witness's grocery; that there was a trail leading directly from witness's grocery to the stable, and that witness and appellant had a quarrel two or three hours before the shooting about a bale of cotton.

Gaddy, a witness for the State, testified that he lived near Mount Enterprise, in Rusk county; that on the evening of the difficulty he was in the grocery store of the witness Griffin; that witness, Griffin, and Greenwood started to the stable to get their horses to go to the show; that when they got in about thirty yards of appellant's place of business appellant came meeting them in an angry manner, cursing, &c.; that Greenwood asked appellant if he wanted a row; that appellant replied, “come on and I will get you,” and went in the direction of his store; that reaching the door he got a gun, pointed it in the direction of Griffin, and fired; that Griffin immediately got behind a house, and appellant immediately fired the other barrel of his gun at witness and Greenwood; that a shot struck witness on the thigh and he fell instantly, and looking around, saw Greenwood on the ground two or three steps from him; that Greenwood received a flesh wound in the thigh; that witness's skin was not broken by the shot that struck him, for the reason that it struck his knife in his pocket; that in about fifteen seconds after witness and Greenwood were shot several guns were fired--about twenty or thirty; that witness and seven or eight persons were going to the show that night, and that witness is now a minister of the Gospel, but was not at the time of the difficulty.

The jury found the defendant guilty, and assessed his punishment at two years in the penitentiary.

Appellant filed a motion for a new trial on the grounds of newly-discovered evidence, misconduct in the jury, that the verdict was contrary to the law and the evidence, and that appellant was decoyed into a trial in the absence of his witnesses by the trickery and artful management of the attorney assisting in the prosecution, and of the witnesses Griffin and Gaddy, and in consequence thereof did not have a fair and impartial trial.

The particular acts of misconduct in the jury relied on to obtain a new trial in the court below, are: That the jury, during their retirement, procured and drank four or five bottles of whisky, and that one of the jurors spoke to a person outside of the jury room, from a window, in reference to the case on which they were deliberating. In support of this ground of the motion, appellant read the affidavit of two of the jurors, the foreman, W. B. Butler, and Wilson Adams. They state that the jury drank four or five bottles of whisky during their deliberations on the case, and that it affected one of them so as to cause him to leap and dance about the room, and that some one from the outside spoke to one of the jurors, sitting in a window of the jury room, and asked him how long the jury would be out, and that the juror replied, during the year 1875, unless he got his verdict, which was for seven years' imprisonment in the penitentiary.

In support of the deposition of the two jurors, appellant read the deposition of Sam Taylor, who swore that he procured two bottles of whisky for one of the jurors of the name of Branch, in the day-time, and a bottle of whisky for another juror at night, that he was directed to have charged to the juror W. B. Butler. The district attorney read the depositions of nine of the jurors, in which they state they drank no whisky, nor saw any of the others drink any, and that neither one of them heard the conversation from the window of the jury room spoken of, nor know of any of the others hearing it.

The district attorney also read the affidavit of the officer in charge of the jury, which, in reference to the whisky drinking by the jury, and the conversation by the juror with a person outside the jury room, is, in substance, that if these things occurred he knew nothing of their occurrence, but thought he would have known of them if they had occurred. He also stated that he gave one of the jurors of the name of Weaver a drink of brandy, on his complaining of being unwell.

Appellant also read the affidavit of the district clerk Burns, and his deputy, Letchworth, to show that Berry Green, one of the jurors, told them after the trial that he had taken a drink of brandy whilst the jury were in the jury room deliberating on the case, and that the jury had played games of cards and other games, and had acted in a very disorderly manner whilst in the jury room.

The jurors Weaver and Green are among the nine jurors who swore they drank no whisky in the jury room, and saw none of the others do so.

The artifice complained of on part of the prosecution and relied on in motion for new trial is as follows: A. M. Murphey stated under oath that “on the morning of the day on which the trial of appellant was commenced he was at the railroad depot in the city of Tyler, where the train from Troupe stops; that he there met the assistant prosecuting attorney, and Barthold, Ross, Griffin, and Gaddy, the witnesses for the State in said case, all of whom had just arrived on the train; that affiant spoke to...