McNeely v. State

• Decision Date: 07 October 1925
• Docket Number: (No. 9514.)
• Citation: 283 S.W. 522
• Parties: McNEELY v. STATE.
• Court: Texas Court of Criminal Appeals

283 S.W. 522

McNEELY v. STATE.

(No. 9514.)

Court of Criminal Appeals of Texas.

October 7, 1925.

Rehearing Denied May 12, 1926.

Appeal from District Court, Bell County; Lewis H. Jones, Judge.

C. S. McNeely was convicted of murder, and he appeals. Affirmed.

See, also, 98 Tex. Cr. R. 598, 267 S. W. 717.

M. M. White, I. W. Culp, and Dewitt Bowmer, all of Temple, for appellant.

Few Brewster, Dist. Atty., of Belton, W. W. Hair, of Temple, A. L. Curtis, of Belton, Tom Garrard, State's Atty., of Lubbock, and Grover C. Morris, Asst. State's Atty., of Devine, for the State.

MORROW, P. J.

Appellant was convicted of the offense of murder and his punishment fixed at confinement in the penitentiary for life.

Appellant, using a pistol, shot and killed J. W. Nichols. He sought a change of venue upon the ground that there existed prejudice against his case such as rendered it improbable that he could receive in the county a fair and impartial trial. Upon that issue the court heard the testimony of some 30-odd witnesses introduced by appellant, and about 40 by the state, and in the conduct of the inquiry each of these witnesses was cross-examined at length, and their testimony is brought before this court in narrative form, and covers some 200 pages of typewritten matter, all of which we have carefully read. The impracticability of rehearsing this testimony in this opinion is obvious. The appellant was a man some 55 years of age, and had many years before the homicide married the sister of deceased, J. W. Nichols. Their unfriendly relations began some few years antecedent to the homicide, and grew out of the distribution of property which had belonged to the father and mother of the deceased and the wife of the appellant. Some 10 years before the trial appellant had killed a man by the name of Dickey, who was county commissioner, and upon his trial soon after that homicide was acquitted. Upon the issue in hand, it is the theory of the appellant that the combined or cumulative effect of the two homicides had brought about prejudice against him of such nature and extent that he could not get a fair and impartial trial in the county. The homicide took place in Temple, a city of 15,000 inhabitants, and the witnesses called upon the hearing of the application for change of venue were residents of various parts of the county, including Belton, the county seat, and Killeen, a town of some 2,000 inhabitants in the western part of the county. The last previous census was said to have given the population of the county at some 46,000, and the estimated subsequent increase placed it at a larger figure. The number of qualified voters was somewhere in the neighborhood of 10,000, one-half of whom were supposed to be males qualified for jury service.

Practically all of appellant's witnesses testified that in the particular community in which they resided they had heard the homicide discussed, and had heard expressions of opinion from persons in the community, most of which were unfavorable to the appellant. Only two of them, to whom reference will be made hereafter, claimed to have some general information. With this exception the testimony given by each of them related to information the witness had received in contact with people in the immediate community or those trading in that community. Both direct and cross examination revealed the fact that the witnesses disclaimed any general information of the feeling in their particular community, but they stated the conclusion that, if such opinions as they had heard expressed were indicative of the general feelings in the community, in their opinion a fair and impartial jury could not, under the procedure provided by law, be impaneled to try appellant's case from the community in which they lived. The cross-examination, going into details as to that matter, developed in each case the fact that there had been no general discussion; that neither the appellant nor the deceased were men of special prominence; that Dickey, who had been killed by appellant some years before, was a county commissioner, and therefore a man of general acquaintance, and that at the time of the acquittal of appellant for the killing of Dickey some dissatisfaction was expressed. These witnesses each disclaimed any intention to convey the idea that they were acquainted with the general conditions throughout the county, or that their opinion or belief was based upon a general knowledge. From two witnesses who seem to us to base their opinions upon the broadest claimed knowledge we take some quotations:

Mr. Burkes had resided in Belton, the county seat of Bell county, for 26 years. From 1904 to 1910 he was sheriff of the county, and in that relation came in contact with people throughout the county. Since his retirement from office he had engaged in the real estate and insurance business, and in his business capacity came in contact with many people. He had heard various people give expressions indicating that their feelings toward McNeely or towards his case were unfavorable, and from his acquaintance and knowledge he regarded it as improbable that under the procedure provided by law a fair and impartial jury would be impaneled in the county to try the appellant. He stated that there was prejudice against the appellant personally because of the two homicides. He had heard no expression favorable to the appellant. On cross-examination he said that, since the death of Nichols, he had visited Killeen on one occasion to attend a funeral, and that he did not mix with the people generally, and that he had never discussed the homicide at all, but had heard others do so; that he did not recall any recent expressions. Quoting him, he said:

"I wouldn't undertake to say, since I have not been into the various parts of the county, whether or not the qualified jurors in those respective parts of the county have formed any opinion about this case or not. I haven't been in the various parts of the county so as to ascertain whether or not there is any general prejudice existing against the defendant in the various parts of the county. I am expressing my opinion on account of some casual remarks I have heard, without getting into any discussion myself, mostly here in Belton and in Temple. In the county as a whole I have no personal knowledge of any general prejudice existing against him in the various parts of the county. * * * I expect that I have heard more than the ordinary citizen expressions from different people, and none of these expressions have been favorable to the defendant's case or toward him. * * * Those whom I have heard express themselves seem to be personally prejudiced against him."

Mr. McGlowm was engaged in the automobile wrecking business, and since the homicide had heard different citizens express themselves unfavorable to the appellant. His business brought him in contact with people from all sections of the county. He said:

"Judging from the expressions which I have heard, I don't think that Mr. McNeely could get a fair and impartial jury who would render a fair and impartial verdict in this case."

In his cross-examination he displayed a lack of knowledge of detail. Quoting him, he said:

"I don't know particularly what the people down at Bartlett or Holland or Rogers or Heidenheimer or Youngsport or Nolanville think about this case. I have heard some from Killeen I think. I don't know their names. They live up in that direction."

He named but one man whom he had heard mention the matter.

Each of the witnesses introduced by the state testified concerning the communities in which they lived that the homicide attracted no unusual attention; that there had been very little discussion; and that it was confined to the immediate time of the homicide, and there was no indication that the previous trial of appellant in which he was acquitted for the murder of Dickey had any bearing upon the minds of the people at the time, or that any prejudice existed in the minds of the people against appellant or against his case. The facts of the case had not been detailed in the newspaper, and there had been very little, if any, expression of public opinion touching the guilt or innocence of the appellant. Practically all of the witnesses gave the opinion from their knowledge and acquaintance with the public in their particular communities, and some of them in a broader scope of territory expressed the opinion that there was no prejudice and no impediment to the impanelment of a fair and impartial jury to try the appellant by the means ordinarily adopted and provided by law for selecting jurors. Most of these expressed the view that, if there had been any unusual sentiment or expression of opinion, it would have come to their attention. There was evidence introduced by the state showing the localities of the various places from which witnesses were called. The venire list was introduced and some testimony given touching the locality from which each of the veniremen came or in which each of the veniremen resided. The venire was composed of 200 men and, as we understand the record, the state returned 13 challenges and the appellant 15. Two of these were exercised after the eleventh juror was selected, and there is no specific complaint of any objectionable, prejudiced juror having been selected, and nothing in the motion for new trial indicating misconduct or improper conduct with reference to the case.

Touching the duty of the trial court and of this court upon an application for change of venue, the law, as deduced from the statutes and the decisions, is, as we understand, that where the application is upon the ground of prejudice, and is controverted, the burden is upon the accused to prove the existence of such prejudice against him or against his case that it is not probable that he can have a fair and impartial trial.

The duty is upon the trial court to weigh the evidence, and if therefrom there arise...