Meuly v. State

• Decision Date: 27 October 1888
• Citation: 9 S.W. 563
• Parties: MEULY <I>v.</I> STATE.
• Court: Texas Court of Appeals

9 S.W. 563

MEULY

v. STATE.

Court of Appeals of Texas.

October 27, 1888.

Appeal from district court, Webb county; J. C. RUSSELL, Judge.

The defendant, Alexander Meuly, was convicted of the crime of murder in the second degree, and was sentenced to 10 years' imprisonment in the penitentiary. He appeals.

J. O. Nicholson, W. Showalter, Stanley Welch, and G. R. Scott, for appellant. Asst. Atty. Gen. Davidson, for the State.

WHITE, P. J.

This voluminous record contains 14 bills of exceptions reserved by appellant to rulings of the court at the trial, and 24 assignments of error submitted on this appeal as grounds for reversal of the judgment. Our conclusion as to the course necessary to be taken in the disposition of the case on this appeal renders it unnecessary to discuss but one or two of these supposed errors, as they are of a character not likely to arise on another trial in the court below. Some of them become important in view of another trial, and to such alone we propose to confine our discussion.

1. Appellant moved for a change of venue in the case, and based his motion upon the first ground named in the statute, (Code Crim. Proc. art. 578,) that is, that there existed against him so great a prejudice in the county that he could not obtain a fair and impartial trial. His application was controverted by the district attorney, under the provisions of article 583 of the Code of Criminal Procedure, and many witnesses were permitted to be examined on both sides as to the existence or non-existence of prejudice in the county. It is urgently insisted that such testimony was inadmissible, and contravenes the obvious purpose and intent of article 583; which, it is contended, limits and restricts the matters to be investigated solely to the credibility and means of knowledge of the defendant's compurgators in the application. In other words, that if the credibility and means of knowledge of the compurgators is alone authorized to be attacked, that this cannot be done by proof generally of the non-existence of prejudice, and that in such a contest it is error to go into a general investigation as to the existence or non-existence of prejudice. Now, what was the sole issue presented by the defendant's application and the supporting affidavits of the compurgators? It was the existence or the non-existence of prejudice. Their means of knowledge upon this matter was attacked. To show that such prejudice did not exist manifestly tends most strongly to prove that they did not possess correct means of ascertaining the truth of the matter. Under this issue as to "the means of knowledge" of the compurgators, it has been more than once decided that "the defendant would have the right to prove the existence of the prejudice by any witness besides the affidavit of his compurgators; and, on the other hand, the state would have the right to prove that no such prejudice did, in fact, exist. The supporting affiants could be thoroughly tested as to their means of knowledge by either party." Davis v. State, 19 Tex. App. 201; Pierson v. State, 21 Tex. App. 14; Smith v. State, Id. 277; Scott's Case, 23 Tex. App. 521, 5 S. W. Rep. 142; Henning's Case, 24 Tex. App. 315, 6 S. W. Rep. 137.

2. In our opinion, the most serious questions presented for our adjudication are those calling in question the sufficiency of and the correctness of the charge of the court. A general, and, as we believe, a most humane and just, rule, in the trial of one charged with murder, is that the jury should, as far as possible, judge of the facts surrounding the homicide from the stand-point of the defendant. In order to do this properly, they must have submitted to them, in the charge of the court, all the law legitimately and fairly arising upon the evidence which he has adduced in his defense. If the evidence be legal, competent, and admissible, then, when the court has admitted it, — whether the court may believe it true or false, — it becomes part of the case, and the jury alone have the right to say, under appropriate instructions pertinent to it, what degree of credibility shall be accorded the witnesses who have testified, and what weight shall be given to the testimony; and they also have the right to pass upon all issues legitimately arising upon such testimony. The statute enjoins it that the charge shall distinctly set forth the law applicable to the case. Not alone the case as made by the evidence for the prosecution, but the case as made by all the evidence; and especially is it the duty of the court to submit in its charge the law applicable to any favorable evidence comprising defensive matter in behalf of the accused. Burkhard v. State, 18 Tex. App. 599. "A defendant in a criminal case has a right to have instructions given based on the testimony of his witnesses, although contradicted by the testimony of the prosecution." State v. Partlow, 4 S. W. Rep. 14. Without discussing seriatim the several errors complained of as to the charge of the court in this case, and so ably argued in the briefs of counsel for appellant, we propose to set out substantially the testimony of the principal witness for defendant; and from that testimony deduce such applicable rules of law as, in our opinion, have been misconceived and overlooked in his instructions by the learned trial judge, and to which defendant was entitled.

One L. E. Riverton, alias Reinhard, was the main witness for defendant, and he testified to his previous acquaintance with the defendant, and the circumstances which brought about a game of "pin-pool" between one Burbank and the defendant, at the Commercial saloon, in Laredo, where the homicide occurred between 4 and 5 o'clock on Monday morning, March 29, 1886. This game commenced about 9 o'clock P. M. on Sunday evening, and Riverton was asked by both parties to count the game, which he did. He says: "About 1 o'clock A. M. a stranger came in, and sat down at the pin-board. This was Douglass, who was drunk. He made some remarks about the game from time to time, and I was annoyed, but Burbank said: `Pay no attention to him.' At about 2 o'clock A. M. I noticed that Mr. Burbank was not playing fair. I suggested to Meuly that we go to bed, and refused to count the game longer, and went and sat down. At about 4 o'clock Meuly was indebted to Burbank sixty dollars, and said to Burbank: `I will play you one more game for sixty dollars.' Burbank said: `No; I will play you for fifty dollars. I ought to have ten dollars for staying up all night.' Meuly agreed to play for fifty dollars, and said he would give Burbank a check on Corpus. I was asked to keep the tally for them for these last three games, which was to be the best two out of three. Burbank won the first `horse.' Meuly won the second `horse.' At the commencement of the third game Meuly said: `Burbank, give the balls a square shake.' The game proceeded, and when Burbank had made 13 he shot at the 3 pin, knocked it down, and also the one pin and exclaimed, `Busted!' He shot again and made some pins, and exclaimed: `I will make pool soon.' Burbank had 15 counted on his string, and, after some conversation, knocked down the 4 and 3 pins, and said `Pool!' Meuly said that was a mistake. I counted up 7 and the 15, making 22. Burbank pulled out the 9 from his pocket, and threw it on the table. Meuly said: `There must be a mistake.' He took up his and Burbank's balls, and the bottle, and let the balls run out on the west side of the table, counting out 14 balls, and said: `This is evident, that something is wrong.' At this time I was seated at the east side of the billiard table, and I noticed Burbank take another ball out of his pocket. and, concealing it in his hand, said: `Are there only 14 balls there?' and extended his hand, and raked in the 14 balls, counted all the balls together, and said: `There are 15 balls there.' Meuly said: `Yes, there are 15 now. I have enough of this game.' Douglass spoke up and said: `Burbank, get your money.' Burbank replied: `Yes, I want my money before you leave the house.' Meuly said: `You will get your money;' and he picked up his coat, and walked out behind the bar, and washed his hands. Burbank, Douglass and myself followed Meuly, and Burbank asked Meuly if he would not have something to drink. Meuly replied that he did not care for anything. They were in front of the bar. I was in the rear of all, about the center of the room. Meuly had his side to the bar. Douglass said to Burbank: `Get your money before he leaves the house,' and Burbank said: `Yes, he wanted it before he left the house.' At the same time Burbank said something to the barkeeper in Spanish, and the barkeeper handed him a revolver. At the time Burbank received the pistol Meuly looked around and saw it. Meuly then said to me: `Will you please step up to my room, and bring me my valise? I want to pay him the money I owe him.' I replied: `Certainly,' and started after it." Here the witness tells of his getting the valise, and returning with it to the saloon. He then proceeds: "I took the valise into the threshold of the door of the Commercial saloon. Meuly stepped from within into the doorway, took out a key, and opened the valise. He first took out a paper, which looked like a check, and with his right hand he took out a revolver, and left the valise open in front of me. Douglass was standing at the counter nearest the door, and...