Mason v. State

• Citation: 81 S.W. 718
• Parties: MASON v. STATE.<SMALL><SUP>*</SUP></SMALL>
• Decision Date: 01 June 1904
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

81 S.W. 718

MASON v. STATE.^*

Court of Criminal Appeals of Texas.

June 1, 1904.

Appeal from District Court, Ellis County; J. E. Dillard, Judge.

George Mason was convicted of crime, and he appeals. Affirmed.

Anderson & Anderson and Tom Whipple, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of accomplice to theft from the person, and his punishment assessed at confinement in the penitentiary for a term of four years; hence this appeal.

Appellant made a motion for change of venue, but the bill of exceptions setting up this matter was filed after the adjournment of the term of court, and consequently cannot be considered. Lax v. State (Tex. Cr. App.; Austin Term, 1904) 79 S. W. 578.

Appellant complains because the court refused to postpone the case; the ground alleged being sickness of his senior counsel, E. P. Anderson, Esq. The court certifies that appellant had two other counsel present, one of whom participated in the case from the beginning, and that he saw no good reason to postpone the case on account of the absence of another one of his counsel. In this there was no error. See Godwin v. State, 73 S. W. 804, 7 Tex. Ct. Rep. 330; Redd v. State, 77 S. W. 214, 8 Tex. Ct. Rep. 698.

Appellant proposed to prove by J. H. Kemble, on his cross-examination, he being a witness for the state, if he was not in the habit of getting drunk, and accusing innocent people of stealing his money while in such condition; and in connection therewith proposed to ask him about two certain instances of the sort which happened at Dallas—one with Chas. Gammon, who took his watch while he was on a spree, to keep it for him, and he accused him of stealing it; and the other with reference to one Ed Payne, when on a similar occasion he took his money and valuables to keep them, and the next morning, before he had opportunity to return them, Kemble accused him of stealing the same. Appellant proposed to prove these matters by the witness, or, if he denied the same, to impeach him by said witnesses. On objection the court excluded this testimony, and appellant assigns this as error. The bill shows that the jury was sent out while the witness Kemble was being cross-examined. The witness answered these questions, as to Gammon, that he did not accuse him of stealing his money, but that he applied to a policeman to hunt him; that he wanted to find him, as he knew he had taken his watch to keep for him. As to Ed Payne, that he thought he had stolen them, but he afterwards got them. Appellant objected to this action of the court in retiring the jury, and also to the subsequent refusal, as shown by other bills, to permit the witnesses Gammon and Payne to impeach appellant. In this action of the court there was no error. We do not understand this to be one of the modes by which a witness can be impeached. It was not a matter relating to the case, and consequently not material; and, even if appellant would be permitted to ask such questions on cross-examination, he would have to be content with the witness' answer. To admit this character of evidence might involve a trial of these side issues, which would be productive of interminable delays.

The testimony of Lula Patrick as to what Mag Love told her on the next morning after the alleged theft was competent evidence to show the guilt of Mag Love, who was the principal in the transaction, and whose guilt had to be established before appellant could be convicted as an accomplice; and it was not necessary for appellant to be present when said Mag Love made the statement. Any testimony which would be competent to prove her guilt as a principal was admissible, and the court properly instructed the jury on this subject, limiting said testimony to the case against Mag Love, the principal.

Appellant reserved a bill of exceptions to the action of the court refusing to quash the indictment. He says that the witness Milton Minnick testified that he was present in the grand jury room when the witness Mag Hines testified, and heard her statement before the grand jury in reference to the charge against defendant. He insists that the indictment should be quashed on said account. We know of no authority on which to base such a motion. There is nothing in the bill or elsewhere showing that any one was present in the grand jury room while they were deliberating on the case; that is, taking action with reference to finding a bill.

We do not find anything worthy of notice in the bill which challenges the action of the court in permitting the county attorney, in discussing the case, to refer to the jury as "farmers." Nor in referring to appellant and his principal, Mag Love, to the effect that the evidence showed that defendant had Mag Love, a low-down, disreputable, negro whore, in his carriage; and that he got old man Kemble in the carriage with her, and drugged him, and carried him to a lowdown dive kept by one Dickey. The evidence justified this. Other language referred to is not of that character requiring a reversal. Robberies of the sort shown in this record are of infrequent occurrence in the country, while they no doubt happen often in the larger cities. While it is the duty of counsel representing the state to stay in the record, some latitude must be allowed in the argument. Of course, nothing of an inflammatory or denunciatory character will be permitted; but we see nothing of that sort here.

Appellant complains of the action of the court in reading to the jury his charge with...