McCoy v. State

• Decision Date: 20 February 1889
• Citation: 11 S.W. 454
• Parties: McCOY <I>v.</I> STATE.
• Court: Texas Court of Appeals

11 S.W. 454

McCOY

v. STATE.

Court of Appeals of Texas.

February 20, 1889.

Appeal from district court, Bexar county; G. H. NOONAN, Judge.

James McCoy appeals from a conviction for the murder of one McKinney. The prosecution was first brought in La Salle county, and changed to Bexar county. The testimony of Galloway was that defendant, in the presence of others, urged witness to help him decoy and kill McKinney.

A. J. Evans, and E. Halton, for appellant. Asst. Atty. Gen. Davidson, for the State.

HURT, J.

This is a conviction for murder of the first degree, with the death penalty. At the May term, 1887, of the district court of La Salle county, the appellant was indicted for the murder of C. B. McKinney. On May 13, 1887, the court of its own motion entered an order changing the venue of the case to the district court of Bexar county. When this order was made appellant objected to the case being sent to Bexar county, that county being out of that judicial district. The learned judge filed reasons for sending the case out of his district which are quite satisfactory. Code Crim. Proc. art. 576.

On the trial, over objection, the state proved by S. V. Edwards that, about two or three weeks before McKinney was killed, defendant told the witness in the presence of others, in Butler's saloon, in Cotulla, La Salle county, that if McKinney ever came to Twohig he had better come shooting, as he intended to kill him, etc. Defendant's counsel objected, because these threats did not tend to prove appellant a principal actor in the murder of McKinney, or to show a conspiracy with Bud Crenshaw to kill him, — the fact being that Crenshaw was the actual perpetrator of the crime. Appellant was present when Crenshaw killed deceased, and these threats were introduced as cogent facts in corroboration of the attending circumstances which established that there was not only a conspiracy to murder deceased, but also that Crenshaw and appellant acted in concert in the killing of McKinney. These observations apply to the competency of the testimony of the witness Galloway. That Galloway was an accessory is no objection to his testimony.

Upon the cross-examination of the witness Galloway, defendant's counsel asked him: "Were you not a witness in behalf of Simpson De Spain, a nephew of defendant, when De Spain was tried for murdering a Mexican, and did you not voluntarily testify in behalf of De Spain? and, after you charged Dow White with raping your daughter, did you not endeavor to get this defendant, Jim McCoy, to procure false testimony against Dow White, which he refused to do?" Counsel for the state objected, because of irrelevancy. The objection was sustained, and appellant reserved a bill. "A witness cannot ward off answering a question material to the issue on the ground that it imputes a disgrace to himself, if such disgrace does not amount to crimination." This is the doctrine as stated by Wharton, (Crim. Ev. § 474.) "A witness may, upon cross-examination, be asked whether he has been in jail, in the penitentiary, or state-prison, or any other that would tend to impair his credibility." The facts proposed to be proved by this witness not being material to any issue in the case, the court properly excluded them.

When Edwards related the threats, etc., made by defendant, his counsel moved to postpone the trial because surprised by this testimony. It appears that Edwards had testified before the examining court, but had not mentioned these threats. He states that these threats were made in the presence of several persons, naming them. The threats were that in the presence of Cope, Salmon, and Gardner, at Cotulla, defendant told witness Edwards that if McKinney ever came to Twohig he had better get off the train shooting, as he would never get away alive. In this there is no threat in terms to kill deceased. Now appellant moved to postpone to procure the attendance of Cope, Salmon, and Gardner to prove that "they were never present at the time when he (defendant) threatened to kill deceased, or said if he (deceased) ever came to `Cotulla' he had better get off the train shooting." Edwards swears that defendant said if McKinney came to "Twohig," etc. Appellant swears that he could prove by Cope, Salmon, and Gardner that defendant never said that if McKinney came to "Cotulla," etc. Edwards did not swear that defendant stated to him that if McKinney came to "Cotulla" he had better get off the train shooting. Hence what appellant proposed to prove by Cope, Salmon, and Gardner might be true, and still Edwards would not be contradicted or impeached in any manner. There was no error in refusing to postpone.

The court did not err in refusing to charge the law of murder of the second degree. Crenshaw killed McKinney, and, if appellant is criminally responsible at all for the homicide, the grade of the offense under the facts is not short of murder of the first degree.

At the request of the appellant the court gave this charge to the jury: "The defendant asks the court to charge the jury that, before you are authorized to find the defendant guilty, you must believe from the evidence, and the evidence alone, and beyond a reasonable doubt, that the defendant either shot and killed the deceased, C. B. McKinney, or was present acting with some one else in the killing of McKinney. Therefore, if you find from the evidence that one Bud Crenshaw shot and killed C. B. McKinney, and that such killing was with express malice as defined in the general charge, and that immediately afterwards the defendant shot at and shot S. V. Edwards, and that this was at the same time and place of the shooting of deceased, McKinney, and that the defendant did not shoot at C. B. McKinney or offer any violence towards the deceased, then, before you would be authorized to find this defendant guilty, you must believe from the evidence, beyond a reasonable doubt, either that this defendant and Bud Crenshaw had previously entered into an agreement to kill the deceased, C. B. McKinney, and the deceased was killed in...