Mason v. State

• Decision Date: 30 April 1919
• Docket Number: (No. 5131.)
• Citation: 211 S.W. 593
• Parties: MASON v. STATE.
• Court: Texas Court of Criminal Appeals

211 S.W. 593

MASON v. STATE.

(No. 5131.)

Court of Criminal Appeals of Texas.

April 30, 1919.

Appeal from District Court, Floyd County; R. C. Joiner, Judge.

Grady Mason was convicted of manslaughter, and he appeals. Reversed and remanded.

B. B. Greenwood, of Breckenridge, Kenneth Bain, of Floydada, and Frank Ford, of Decatur, for appellant.

Kinder & Russell and A. B. Martin, all of Plainview, T. F. Houghton, of Floydada, A. J. Fires, of Childress, and E. B. Hendricks, Asst. Atty. Gen., for the State.

LATTIMORE, J.

Appellant was convicted in the district court of Floyd county for the offense of manslaughter, and his punishment fixed at confinement in the penitentiary for a period of two years.

Appellant was indicted on March 6, 1918, for the murder of Elder Morris, was arrested on the same day, and his case shortly thereafter set for trial on March 25th. On March 9th he caused two subpœnas to be issued one to Potter county for J. J. Gordon, and one to Wise county for Y. M. Mason. On the 19th of said month he also had a subpœna issued to Bexar county for Hubert Bartlett. None of said witnesses were served with process, and none were present when the case was called for trial, and a continuance was asked on account of their absence. The application does not state what said Bartlett would testify. Both Gordon and Mason were stated in said application to be out of the state at the time of the making of said application. When or how the information as to their absence reached appellant is not stated, nor is it shown when said subpœnas were sent to the respective counties to which issued; nor is it shown by whom the same were sent, if at all. Said subpœnas were not attached or in evidence, nor accounted for in any way. No showing is made as to when said witnesses left the state, nor that they had been, or were recently, in the counties to which the subpœnas were issued.

Authorities without number might be cited to sustain the rulings of this court to the effect that when an application is because of absent witnesses, it must be shown that process was promptly procured, and what was done with same, to whom, and when, same was delivered, and if to another county, the manner and time of its transmission must be shown, etc. For authorities on these points, see article 608, Vernon's C. C. P., and citations. There was no error in overruling said application for a continuance.

The brother of deceased testified to a declaration made by the deceased prior to his death, a part of which statement was as follows:

"He told me about the condition of his wife. He told me a few things. He wanted me to look after his family."

This was objected to by appellant as inflammatory, prejudicial, immaterial, and hearsay. The court approved the bill with the explanation that appellant was contending at the time the entire statement was made, of which that quoted and objected to was only a part, that deceased was in a semi-comatose condition, and did not realize what he was saying. The trial court was of opinion that the circumstances surrounding deceased at the time were of such character as that said quoted statement showed, and tended to show, that he fully realized the condition of his wife and family, and therefore tended to show his mental condition in making the entire statement. It appears from the record that at the time of this trial, a few months after the killing, the wife of the deceased was placed on the witness stand, and that her pregnant condition was plainly visible to the jury. The evidence objected to was not inflammatory, and in our opinion was admissible as rebutting appellant's contention that the deceased did not know what he was talking about. The statement in full clearly showed that the deceased was aware of his physical condition, and did not believe he could live, and the same came clearly within our rules as to dying declarations.

Objection was made to the testimony of the state witness Gound, who went with the wife of deceased and other parties to the scene of the killing afterward, and testified that from the place where Mrs. Morris located the difficulty the Morris home and premises were plainly visible, and that from the Morris home and yard the place, near the appellant's home, where Mrs. Morris had located the difficulty, was plainly visible. The court's explanation of this bill shows that appellant had testified that, after hearing Mrs. Morris state on the examining trial that she was in her yard and saw all the fatal difficulty, he then went to the place of the difficulty, and from there he observed that none of the Morris premises but the top of the house were visible. The trial court was of the opinion that the test made by the witness Gound was admissible to meet this testimony of appellant. It appears that the test was made under the direction of an eyewitness to the difficulty, and was made at about the same time of day as that of the killing, and we think the admission of the same was not objectionable. Schauer v. State, 60 S. W. 251; Coffman v. State, 73 Tex. Cr. R. 295, 165 S. W. 939; Brown v. State, 74 Tex. Cr. R. 356, 169 S. W. 437; Wilson v. State, 36 S. W. 587; Clark v. State, 38 Tex. Cr. R. 30, 40 S. W. 992.

We find nothing in the Harris Case, 62 Tex. Cr. R. 235, 137 S. W. 375, or in the Faulkner Case, 43 Tex. Cr. R. 311, 65 S. W. 1093, cited by appellant, which holds to the contrary.

Complaint is made because the trial court failed to charge on assault to murder. The ground of said complaint in the application is that the wound inflicted upon deceased was not necessarily fatal, nor was the deceased given proper medical treatment. Appellant was only convicted of manslaughter, which clearly showed the jury's disagreement with any theory that what he did was with malice aforethought, which is an essential element of assault to...