Mason v. State

• Decision Date: 03 June 1914
• Docket Number: (No. 3134.)
• Citation: 168 S.W. 115
• Parties: MASON v. STATE.
• Court: Texas Court of Criminal Appeals

168 S.W. 115

MASON v. STATE.

(No. 3134.)

Court of Criminal Appeals of Texas.

June 3, 1914.

Dissenting Opinion, June 19, 1914.

Appeal from District Court, Bowie County; H. F. O'Neal, Judge.

Eugene Mason was convicted of murder, and he appeals. Affirmed.

J. S. Crumpton and O. B. Pirkey, both of New Boston, for appellant. L. E. Keeney, Dist. Atty., of Mt. Pleasant, and C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant was prosecuted and convicted of murder, and his punishment assessed at confinement in the penitentiary for life.

In the first bill of exceptions it is complained that the court erred in overruling appellant's application for a continuance. It is shown by the bill that the attendance of all witnesses for whom process had been issued was secured, but appellant's attorneys make an equitable application to the court on the ground that they had not had time to make proper investigation and preparation for the trial. The offense is alleged to have been committed on the 2d of December, 1913, and appellant was arrested the next day. In a day or two thereafter he conferred with his present attorney, and employed him in the case, conditioned upon a certain amount of money being paid in cash. Appellant's two brothers agreed to pay this money, but failed to do so. The indictment was returned into court on the 16th day of December, and on that day the court conferred with the attorney whom appellant had sought to employ and whom he did afterwards employ, in regard to the setting of the case, and the case was set for December 29th. The employment not being consummated, the court on the 17th day of December appointed an attorney to represent appellant, Mr. O. B. Pirkey. This was 12 days before the case was called for trial. On the 22d of December the employment of Mr. Crumpton was consummated, and that day process was issued for appellant's witnesses, and all those issued for attended court.

Our Code permits a case to be called for trial 2 days after a defendant has been served with a copy of the indictment (article 557, C. C. P.), and, where counsel is appointed, the Code provides that such counsel shall be granted one day in which to prepare for trial (article 558). This case was not called for trial until 13 days after appellant was served with a copy of the indictment, and 12 days after Mr. Pirkey had been appointed by the court to represent him, and 7 days after Mr. Crumpton had been employed in the case. This seems to have given him ample time as contemplated by our laws, and the "court was not guilty of undue haste," as contended by appellant. In the application it is only stated that appellant "hoped to be able to develop other facts" without stating what such facts were or would be, and in the motion for a new trial it is not attempted to be shown that he was deprived of any testimony, or the testimony of any witness, or that he had ascertained any other or additional facts that would be in the least beneficial to him. Under such circumstances, we must hold that the court did not abuse the discretion confided to him by law.

The next contention is that the court erred in having appellant arraigned during the absence of counsel. The facts would show that after the jury had been selected and impaneled, before proceeding further, appellant's counsel requested a 10 minutes' recess that he might confer with some witnesses. This was granted by the court. Instead of taking only 10 minutes, the trial judge states he waited 25 minutes, and, being unable to find counsel, he ordered the district attorney to arraign the appellant, and he did so; appellant's counsel coming in the courtroom while the indictment was being read to the jury, and arriving in time to enter a plea of "not guilty." We know of no provision of the Code which requires that counsel shall be present at all stages of the proceedings in a criminal case. It does so provide as to the defendant (article 557), but it only states that counsel shall also be called. In this case the court states he had the officers try to find counsel and they failed to do so. While the law provides that in a felony case the appellant shall be present at all stages of the proceedings, yet it has been held since the law was passed allowing a defendant to remain on bond, if he willfully or intentionally absents himself while some proceeding takes place, it will not present reversible error, unless the record discloses he may have suffered injury thereby. As before stated, the defendant was present, and as appellant's counsel had overstayed more than twice the length of time they had been granted by the court, and the officers of the court had failed to locate them, the fact that appellant was "arraigned" while they were not in the courtroom, but no further action taken, in the absence of any injury shown, presents no error. Appellant cites us to no case from this state sustaining his contention, but refers us to the case of Kansas v. Moore, 61 Kan. 732, 60 Pac. 748. In that case it is shown that, under the laws of Kansas, pleas to quash, etc., must be filed before arraignment. In this state there is no such provision, and while the Kansas case holds the right to have counsel present at the arraignment to be a fundamental right, yet we do not think it so under our Constitution and laws. It is true that our Constitution guarantees one the right to be represented by counsel in a capital case, and if by the arraignment he had been deprived of any right, or the right to file any plea, or he could in the remotest sense have been injured in his rights by being arraigned while his counsel was not in the courtroom, we would hold it error; but nothing of that character appears in this case.

It appears that this case went to trial on Tuesday, and state's counsel rested its case Saturday at noon. Counsel moved a recess of court until Monday morning. That was denied, and the court took a recess only until 1:30 p. m. Appellant complains of this action of the court, saying he had not time to converse with his witnesses. The court in approving the bill states:

"I never at any time refused to permit defendant's counsel to confer with any or all the witnesses. This case was delayed time and again to permit counsel to talk to witnesses. I declined to postpone this case from Saturday noon to Monday because there was in attendance a great number of witnesses from Cass county, at great expense to the state, besides counsel had a week in which to confer with the witnesses, at noon hours, also after adjourning hour. With this explanation this bill is approved and ordered filed."

As thus qualified, the bill presents no error.

It appears that, while Mrs. Nellie Poarcher was testifying, she was asked by counsel for the state, "About what time did you find and ascertain that he had been killed and robbed up there?" Appellant objected to the question. In overruling the objection, the court stated, "I think that is a part of the res gestæ." While it is always better for the court to rule without making any additional remarks, yet it is only where such comment is upon the weight of the testimony that such action presents error. In this case the remark cannot be construed into informing the jury as to what weight to give the testimony. The answer to the question is not presented in the bill, nor the testimony adduced, and we could not therefore judge whether or not it would have been hurtful if it had been upon the weight of the testimony.

In bill of exceptions No. 5 it is complained that Ross Powell was permitted to testify, and then, without reciting the testimony, says "see statement of facts, page 77." The bill should have contained the testimony objected to. If we turn to the statement of facts, we could not by reading page 77 get the connection of that page of the testimony with his entire testimony, for the testimony of this witness covers a number of pages. But if we read his entire testimony, we learn that Mr. Powell had a conversation with defendant the evening after the homicide, and before defendant's arrest, and in that conversation he denied going to Texarkana, and claimed to have gotten off the train beyond where it left the yard at Springdale; that he told appellant that he, the witness, understood that he had gone to Texarkana with deceased, but appellant denied that he had done so; that, while he was talking with appellant, appellant was nervous and excited; that he had a haggard appearance, and looked to have lost sleep; that he had known appellant for years, and he had never seen him in this condition before. In the light of the testimony in this case, and all the testimony of this witness, this testimony was clearly admissible, for it made manifest that appellant was made aware that he was under suspicion, and his acts and conduct when not under arrest and when no officer was present would certainly be admissible in a case depending on circumstantial evidence.

The bill of indictment in this case alleges that deceased was killed by being cut and stabbed with some sharp instrument to the grand jury unknown. The district attorney testified as to the efforts made by the grand jury in trying to ascertain the character and kind of instrument used. In this there was no error.

It is made to appear that, while Lige Roberts was testifying, appellant desired to prove by him that he (appellant) on the day he went to Texarkana with deceased invited and insisted on Roberts going to Texarkana with him. The court excluded this testimony at the time it was first offered, but later changed his ruling and told counsel he would admit the testimony. Mr. Roberts having gone home, state's counsel admitted as a fact that appellant on that occasion did insist on Roberts going with him. As this testimony was admitted to go to the jury as a proven fact, the bill presents no error.

J. A. Bramlett was a witness for the defendant, and on cross-examination the state was...