McKenzie v. State

• Decision Date: 09 May 1928
• Docket Number: (No. 11575.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 11 S.W.2d 172
• Parties: McKENZIE v. STATE.
• Court: Texas Court of Criminal Appeals

Page 172

11 S.W.2d 172

McKENZIE v. STATE.

(No. 11575.)^*

Court of Criminal Appeals of Texas.

May 9, 1928.

Rehearing Denied November 28, 1928.

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Commissioners' Decision.

Appeal from District Court, Bexar County; C. J. Matthews, Special Judge.

John A. McKenzie, alias Pete McKenzie, was convicted of murder, and he appeals. Affirmed.

Nowlin Randolph and A. S. West, both of San Antonio, for appellant.

Lamar Seeligson, Dist. Atty., and Temple Calhoun, Asst. Dist. Atty., both of San Antonio, and A. A. Dawson, State's Atty., of Austin, for the State.

CHRISTIAN, J.

The offense is murder; the punishment, death. On the night of September 10, 1927, at about 9 o'clock, the superintendent of Piggly-Wiggly store saw appellant standing across the street at a root beer stand, a distance of about 60 or 70 feet from his store. He phoned police officers, who appeared on the scene in a short time. The superintendent had been advised by the manager of the store that there was a man acting in a suspicious manner across the street from the store. When the police officers arrived on the scene, Sam Street, chief of police of San Antonio, and Tate, a policeman, got out of the car on the right side. Wayne Parks, another policeman, got out on the left side of the car and started around back of the car. Street walked toward appellant. Appellant was leaning against the wall. When Street was within 8 or 10 feet of appellant, Tate, a policeman who was accompanying him said: "What are you doing here, young man? We are officers." Appellant had his left hand in his coat pocket. When Tate made the remark referred to, appellant turned and shot from his pocket. Appellant then immediately reached under his left shoulder and drew a Luger automatic pistol, and at the same time fired two shots from his coat pocket. He then began firing at one of the police officers from his pocket, and at Chief of Police Street and another officer with the Luger, running backwards while firing. Appellant fired 12 or 15 shots. When the first two shots were fired, Chief of Police Street fell. At the time appellant fired the first shot none of the officers had drawn a weapon, no pistols being drawn by the officers until after appellant began firing. The officers then fired on appellant, he running away and at the same time firing at them. Appellant received flesh wounds in the legs. Sam Street was killed, about three shots having taken effect. Appellant was arrested in an attic. The pistols which he used on the night of the homicide were found in his possession. Appellant did not testify, but offered witnesses who testified that Chief of Police Street walked up to appellant, flashed a light from a flashlight in his face, and said, "What are you up to?" and that appellant then backed off and a shot was heard. The officers wore no uniforms nor insignia. The state's witnesses denied that Chief of Police Street had a flashlight in his hand. It is undisputed that none of the officers drew pistols until after appellant had fired the first shot. The officers were positive that appellant was informed that they were officers, whereas appellant's witnesses stated that they were in a position to have heard what was said, and that they did not hear Street or any of the police officers tell appellant that they were officers.

The indictment was returned by a special grand jury called for the purpose of investigating the homicide. Appellant made a motion to quash the indictment on the ground that the law does not authorize the convening of a special grand jury for the purpose of investigating a "single and isolated" case. Article 1920, R. S. 1925, authorizes the convening of special terms of the district court when deemed advisable by the district judge, and authorizes the district judge, in his discretion, to impanel a grand jury for such special term. It is patent from a reading of the statute referred to that appellant's motion was properly overruled.

By bill of exception No. 2 it is shown that appellant filed an application for a change of venue predicated on alleged prejudice. The application was supported solely by the affidavit of appellant. The state duly controverted the application and the court heard evidence on the issue. It is unnecessary to detail or discuss the evidence, The statute requires that the application be supported by the affidavit of the defendant and of at least two credible persons who are residents of the county where the prosecution is instituted. Article 562, C. C. P. It has been held that this requirement is not complied with by supporting the application by the affidavit of the defendant and one other person. Gibson v. State, 53 Tex. Cr. R. 349, 110 S. W. 41.

Appellant filed a motion to postpone the trial and give him additional time to prepare for trial. It was alleged in the motion that the offense was alleged to have been committed on the 10th day of September, 1927; that a grand jury was impaneled on September 12th, which returned an indictment against appellant on the same day; that on the day the indictment was returned the court appointed two attorneys to represent appellant in the trial of his case; that both of said attorneys were inexperienced in the practice of criminal law; that the public was in an inflamed condition of mind by reason of the publicity given to the alleged offense; that from the date of their appointment appellant's attorneys had constantly worked on the law and facts of the case; that they had not learned the law and felt that the case could not be tried according to law; that they were not familiar with the rules of procedure and therefore would be unable to protect appellant's rights by proper bills of exception or other action; that his attorneys had not had time to interview witnesses or to investigate and find out what the witnesses knew; that they had learned of the existence of witnesses, but had not had time to find them or ascertain who they were or their whereabouts; that there was a witness present at the time of and immediately before the homicide whose name appellant did not know; that appellant's attorneys had talked to certain witnesses who were afraid to discuss what they knew relative to the homicide, and that said witnesses were in possession of material evidence beneficial to appellant; that appellant believed he had a legal defense to the charge against him if given time to secure evidence; that appellant had been shot twice and dangerously wounded on the occasion of the homicide and had been placed in jail while suffering excruciating pain; that due to said pain he had been mentally unable to consult with his attorneys and give them a coherent statement of the facts of his case; that he was then suffering great pain; that the public mind was inflamed against him, and that he should not be brought to trial while such condition existed; that his brother and the wife of his brother, who might be of assistance to him, had been incarcerated in jail; that his father, who lived in Michigan, and his sister-in-law, who lived in Missouri, and his brother, who also lived in Michigan, according to his belief, would furnish money and funds to aid him in conducting his defense; that he had prepared letters and sent telegrams to said parties; that his attorneys were not at the time sufficiently prepared on the law and facts of the case to enable them to represent him in an intelligent and efficient manner. It was prayed that the court fix the date of trial "at such time in the future as will give his attorneys time within which to prepare his case for trial in such a way that it may be tried in accordance with the meaning and intent of the law." The trial was had on September 15, 1927.

The state filed written replication to the motion, and offered in support of its contest one of the county physicians, who testified that appellant was not dangerously wounded and that he was physically and mentally able to undergo trial. Other witnesses for the state testified that they had talked to appellant and that he talked in a rational and coherent manner. The court qualified appellant's bill of exception as follows:

"The court stated to counsel for the defendant that if they wished additional counsel appointed that he would be only too glad to appoint additional counsel. Further, the court also asked Pete McKenzie, the defendant, whether he was satisfied to go ahead now with the counsel that the court had appointed and the defendant, Pete McKenzie, informed the court that he was satisfied. The court informed the defendant, Pete McKenzie, that if he was not satisfied that he would appoint additional counsel, and the defendant, Pete McKenzie, informed the court that counsel appointed by the court was satisfactory to him. The court informed counsel for the defendant that if any witness refuses to talk to either of counsel for the defendant, that if they would report the fact to the court that he would see that the witness or witnesses would talk. The court further informed the defendant that during the present special term Mr. Randolph had represented some five or six defendants in this court and had represented them ably and that as to Mr. West he is a teacher of law. The court further stated to counsel that he thought they were tardy in urging their incompetency — that if they were of that opinion they should have so informed the court at the time of their appointment and should have refused to accept the responsibility. Upon this statement by the Court both defense counsel jumped to their feet and stated that they were perfectly competent and able to take care of the case and that they had been misunderstood; that they only wanted more time. The Court then stated that since counsel had injected the issue of incompetency he felt it his duty to appoint additional counsel, as to whose competency there would be no question. Counsel for the defendant requested the...