Martin v. State

• Decision Date: 10 March 1886
• Citation: 17 S.W. 430
• Court: Texas Court of Appeals
• Parties: MARTIN v. STATE.<SMALL><SUP>1</SUP></SMALL>

17 S.W. 430

MARTIN v. STATE.¹

Court of Appeals of Texas.

March 10, 1886.

Appeal from district court, Gonzales county; GEORGE McCORMICK, Judge.

James Martin was convicted of burglary, and appeals. Affirmed.

Fly, Davidson & Davidson, for appellant. J. H. Burts, Asst. Atty. Gen., for the State.

WILLSON, J.

1. An indictment similar to the one in this case was passed upon by this court in Carr v. State, 19 Tex. App. 635, and was held to be sufficient. The questions now presented upon the indictment were in that case fully discussed, and, without repeating the discussion, we adhere to that decision, and hold that the exceptions to the indictment in this case were properly overruled.

2. Defendant's application for change of venue was based upon both the statutory grounds, and was in due form of law. Code Crim. Proc. art. 578. It was controverted in the manner required by law, by affidavits attacking the means of knowledge of the compurgators. We understand the affidavits to question the means of knowledge of the compurgators as to both of the alleged grounds of the application. The issue thus formed was tried by the court upon evidence adduced by both parties. As to the existence of the grounds of the application, the evidence is conflicting, and it was shown on the part of the state that the means of knowledge of the compurgators, especially two of them, as to the existence of said grounds, were quite limited, being confined to hearsay and to their knowledge of the sentiment of the people in one particular neighborhood with regard to the case. We cannot say that the court erred in its judgment refusing the change of venue. The granting or refusing the application rested in the sound discretion of the trial court, and on appeal the action of said court upon such application will not be revised, unless it should appear that said discretion has been abused. Grissom v. State, 8 Tex. App. 386; Myers v. State, Id. 321; Magee v. State, 14 Tex. App. 366. It does not appear that there has been an abuse of such discretion in this instance. In all respects the procedure upon the application has been regular, and the evidence admitted upon the issues formed was competent under the decisions of this court. Carr v. State, 19 Tex. App. 635; Davis v. State, Id. 201.

3. When the state's witness Hester was placed upon the stand to testify, the defendant objected to his competency upon the ground that he had been convicted in this state of a felony, and in support of said objection produced a judgment and sentence of the district court of Gonzales county, showing that said Hester had been duly convicted in said court, on July 5, 1884, of the theft of sheep of over $20 in value, and sentenced to confinement in the penitentiary for said offense for the period of five years. In reply to the objection, the state produced a pardon, signed by the governor, and attested by the seal of the state, pardoning John G. Hester of the offense of theft of sheep, reciting that said Hester had been convicted of said offense at the November term, 1884, of the district court of Gonzales county. Defendant objected to this pardon upon the ground that the date of the conviction as therein recited did not correspond with the date of the conviction as shown by the judgment and sentence, and because the date of conviction stated in the pardon was a date when there could not have been a term of the district court in Gonzales county. The witness was held competent, was permitted to testify in the cause, and the defendant excepted. Upon this question Mr. Bishop says: "In the absence of fraud a pardon will be good, though it states the date of the conviction incorrectly, if it was intended to cover, and does cover, the particular offense." 1 Bish. Crim. Law, § 906; citing Com. v. Railroad Co., 1 Grant, Cas. 329. In Hunnicutt v. State, 18 Tex. App. 499, this court cited and adopted the above-quoted text of the distinguished author. That the date of the conviction as recited in the pardon is a date upon which such conviction could not legally have been had, would not, we think, change the rule. It is in any case a question of identity, the question being, was the pardon intended to cover, and does it in fact cover, the particular offense of which the defendant was convicted? In determining this question the court is not confined to the record alone, but may hear evidence dehors the record: It is a question relating to the competency of the person to testify as a witness, and its determination is confined exclusively to the trial judge. It is not shown by the bill of exception, or in any other way by the record, that the state failed to prove that the Hester named in the pardon was the same Hester named in the judgment of conviction, and that the conviction named in the pardon was the same conviction evidenced by the judgment. We must therefore presume that such proof was made to the satisfaction of the trial judge. We hold, therefore, that the objections to the pardon, upon the ground of variance between its recitals and the judgment of conviction, is not maintainable.

4. It was further objected to the pardon that it was granted to avoid a decision of this court, wherein we held that a former pardon granted said Hester did not restore his competency as a witness, because it was a conditional, and not a full, pardon. With the reasons which actuated the executive to grant the pardon the courts have no concern. The constitution...