McGrath v. State

• Decision Date: 12 February 1896
• Citation: 34 S.W. 127
• Parties: McGRATH v. STATE.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Criminal Appeals

34 S.W. 127

McGRATH v. STATE.¹

Court of Criminal Appeals of Texas.

February 12, 1896.

Appeal from district court, Tarrant county; W. D. Harris, Judge.

Martin McGrath was convicted of murder, and appeals. Affirmed.

Furman & Bowlin, for appellant. J. S. Davis, O. S. Lattimore, and Mann Trice, for the State.

HENDERSON, J.

Appellant was tried on an indictment charging him with murder, was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of nine years; and from the judgment and sentence of the lower court he prosecutes this appeal.

The appellant made a motion for a continuance on account of the absence of the witnesses Bill Beatty, Sam Green, W. M. Gillentine, and Henry Lennox. The motion was overruled, and the defendant excepted. Appellant also made a motion for a new trial on the ground set forth in his application for a continuance, which was overruled, and the defendant saved his exception thereto.

The application shows that Lennox was present at the time of the homicide, and that his testimony would be material for the defendant. As to the diligence to procure this witness, it appears that the indictment in this case was presented on the 19th of January, and the defendant was immediately arrested; and on the 26th of January the case was set down for trial on February 20th. The defendant did not have subpœna issued until the 28th of January. The application further shows that the said Lennox was used as a witness by the defendant at the examining trial, and, pending the final trial, was in the custody of appellant, who had agreed to pay his board at a certain hotel or boarding house in Ft. Worth; that said witness remained there until the 2d or 3d of February; that about said time the witness left, leaving a note, which the appellant attached to his motion, stating that he had gone, without stating where to, and requested appellant to pay the balance of his board as he had agreed to do. It is also shown that said witness Lennox lived in Minnesota. The witness appearing to be a transient person, it was the duty of the appellant to have had process issued for him at the earliest possible date; but it seems he allowed nine days after he was arrested to elapse before application for process was made for said witness. If process had been applied for promptly, the officers may have been enabled to secure service on said witness. Furthermore, it appears that the said witness, after process had been issued, was in Ft. Worth for three days thereafter, and was a transient person, in custody of the appellant, his whereabouts known to defendant; and it is not to be presumed that the officers knew him, or at what particular place in the city of Ft. Worth he could be found. Certainly, under the circumstances of this case, it was the duty of the appellant to have promptly informed the officers where said witness could be found, so that process could be served on him; and, if he had any apprehension that the attendance of the said witness could not be secured by the mere service of a subpœna, it was his duty, instead of undertaking to secure his attendance by his personal custody of said witness, to have taken steps to secure his attendance by legal means. In this connection, it will be noticed as a significant fact that the appellant in this case had paid the board of the said witness up to the date of the issuance of said subpœna, but not beyond that time; and the note to appellant suggests that the contract of personal custody expired with the issuance of the said subpœna, and that the witness was then at liberty to go where he pleased. Furthermore, although said note was received by the defendant on the 2d of February, no effort whatever is shown from that time on up to the date of the trial to ascertain the whereabouts of the said witness.

As to the witness Gillentine, it was alleged that he was a resident of Dallas county, but was temporarily in Erath county. Process, by attachment, was issued for him on the 18th of February. It was proposed to be shown by him that the deceased, Rushing, had entered into a conspiracy and made threats to kill the appellant on the night in question, on which the deceased was killed. Gillentine subsequently appeared in court, and was present at the trial, but was not placed on the stand by the appellant. As to the witnesses Beatty and Green: They both lived in Tarrant county, and were under process of subpœna. By both of these witnesses it was proposed to prove that the deceased had made antecedent threats to kill the defendant. The threats proposed to be proved by the first witness were not communicated to the defendant, and the threats proposed to be proved by the second witness were communicated to the defendant prior to the killing. It is not shown in the application how far from the county seat said witnesses lived. No process of attachment was asked or issued for them, and as the trial in this case lasted several days, if the defendant considered their testimony material, it would appear that their attendance could have been secured by the issuance of other process; at least, some further effort should have been made in that direction. But, considering the evidence in the case, to our minds it is, at least, doubtful whether said testimony of threats was material on the trial of this case. There was evidence of threats produced on the trial, but the evidence fails to show any overt act on the part of the deceased to carry out said threats against the defendant.

The state proved by a witness, J. H. Phelps, that he was present during the difficulty in which Rushing was killed, and that he saw no weapon in Rushing's hand. Said witness was then asked by the state's counsel: "If the deceased, Rushing, had a knife or pistol or any other weapon in his hand, state whether or not you were in a position from which you could have seen it." This question was objected to as being leading and argumentative. The court overruled the objection, and the witness answered in the affirmative. The defendant saved his bill of exception to said question and answer. The witness Phelps had previously described the difficulty and the situation of the parties during said difficulty, and that Rushing was in his view during the entire progress of the difficulty, and he testified that he had no knife or other weapon in his hand; and we see no error on the action of the court in permitting the question and answer complained of. See Fulcher v. State, 28 Tex. App. 465, 13 S. W. 750.

While the witness Strong was on the stand, the witness stated on examination by the state that he told Maddox that he was going to make complaint against several gambling houses; that he could not run, and did not think anybody else had any more right to run than he had. On this point the defendant's counsel proposed to prove by said Strong, on cross-examination, that Maddox told him that, if he would make complaint against McGrath, he would serve the process. This testimony was objected to by the state, and the objection sustained, and defendant excepted. It does not occur to us that it was material to show that the marshal or city officers of Ft. Worth would serve process placed in their hands on complaints filed in the city court. This is to be presumed. At least, we fail to see how the rejection of such testimony in any wise injured the rights of the appellant. Nor was it material to show, on the part of the defendant, that Maddox told Strong that he thought he was mistaken about defendant McGrath's "jobbing him" (meaning thereby that McGrath was seeking to have the rival gambling house of Strong closed up). It was immaterial what Maddox thought about this.

It appears from the eighth bill of exceptions in this case that the difficulty which occurred between Strong and McGrath on the Saturday night preceding the Sunday night of the killing was gone into at considerable length, and the details thereof testified to before the jury. This was all done without objection on the part of the appellant, until the witness had told all of the circumstances that led up to the fight, and then that the parties McGrath and Strong began fighting. At this juncture, counsel for the state asked the witness: "What did the parties fight with?" Appellant objected to this question, which objection was overruled by the court; and the witness answered: "With pistols; they beat one another with their pistols." In the further progress of the testimony of the said witness, detailing said matter, the witness stated that, while they were fighting, Strong's pistol dropped, and he then seized the pistol of the defendant, and the defendant hallooed to his brother Peter Crow, "Shoot him! kill him!" This testimony was also objected to by appellant, and he reserved his bill of exceptions to its admission. This bill of exceptions states, as the ground thereof, that the same was irrelevant and immaterial. Counsel should have stated distinctly the reason for the objection to this testimony, and this should...