Miller v. State

• Decision Date: 25 March 1893
• Citation: 21 S.W. 925
• Parties: MILLER v. STATE.
• Court: Texas Court of Criminal Appeals

21 S.W. 925

MILLER v. STATE.

Court of Criminal Appeals of Texas.

March 25, 1893.

Appeal from district court, Dallas county; R. E. Burke, Judge.

Henry Miller was convicted of murder in the first degree, and appeals. Affirmed.

J. C. Kearby, Bassett, Seay & Muse, and Still well H. Russell, for appellant. R. L. Henry, Asst. Atty. Gen., for the State.

DAVIDSON, J.

Appellant prosecutes this appeal from a conviction of murder in the first degree, with the death penalty assessed. When the cause was called for trial, he applied for a change of venue, based upon both grounds mentioned in the statute. To this application was attached an exhibit, — a newspaper account of the actions of a mob which sought to take defendant from custody for the purpose of hanging him. The controverting affidavit filed by the state was sufficient, both as to form and substance, wherefore the court did not err in overruling defendant's exceptions to the same. Willson, Crim. St. §§ 2209, 2210. The application was refused, and defendant excepted, but the evidence adduced on the trial of the issues involved in the motion is not incorporated in the bill of exceptions; and it is therefore insufficient to authorize, on appeal a revision of this ruling of the court. Code Crim. Proc. art. 584; Blackwell v. State, 29 Tex. App. 194, 15 S. W. Rep. 597; Lacy v. State, 30 Tex. App. 119, 16 S.W. Rep. 761. Attaching the newspaper account to the application, as an exhibit, does not authorize its consideration as evidence in support of such application. Lacy v. State, Id.

2. Defendant sought a continuance — First, because there existed a prejudice so great, and a combination of influential persons so strong, that he could not obtain a fair and impartial trial in Dallas county; and, second, for the testimony of one Brown, by whom he "expected to prove that, a few nights prior to the homicide, several policemen, with others, came to his house, in the city of Dallas, and then and there talked with said Brown, and inquired of said witness the whereabouts of defendant, and said they proposed to arrest defendant, and that he would then be killed by some man, who they then named to said witness." The application fails to show diligence to secure the attendance of the witness. Defendant was served with a copy of the indictment on June 9th, and his trial occurred July 14th following. The process for the witness is not attached to the motion, nor is it inserted in the bill of exceptions, and neither state the date of its issuance, nor is it shown that further process was not required. But, if diligence be conceded, the allegations are too vague and indefinite. Neither the name of defendant's proposed slayer, nor that of any of the parties who visited his house, is given. Nor would the testimony, as set out, be admissible. General statements will not suffice, nor will mere inferences or indefinite allegations. The facts expected to be proved must be stated definitely. Miller v. State, (Tex. Cr. App.) 20 S. W. Rep. 1103; Williams v. State, 10 Tex. App. 114; Grissom v. State, 8 Tex. App. 386; Thomas v. State, 17 Tex. App. 437; Mitchell v. State, 1 Tex. App. 195.

3. This homicide occurred on May 24th. The state, over defendant's objection, was permitted to prove that an affidavit was prepared on May 23d, and filed on May 25th, charging defendant with the offense of slander; that the acting chief of police was informed of that fact; that he instructed the police force to arrest defendant; that, in obedience to this order, he was arrested, and this constituted the only authority for his arrest. This testimony was objected to because irrelevant and incompetent. The effect of this testimony was to show the arrest without warrant, and thus it tended to maintain the defensive theory of illegal arrest, and for this purpose was legitimate, and did not, because offered by the prosecution, become incompetent.

4. The affidavit charging defendant with the offense of slander was also admitted in evidence. The slander charged imputed to the female mentioned a want of chastity of a most revolting nature. The contents were hardly germane to any issue in the case, in the absence of evidence bringing home knowledge to defendant of the existence of the affidavit, and we are not prepared to say that it may not have prejudiced defendant in the minds of the jury. The court, however, subsequently withdrew the affidavit from the consideration of the jury, and instructed them verbally, as well as in writing, to disregard it as evidence in the case. The effect of withdrawing and excluding testimony erroneously admitted, which was or may have been prejudicial in its nature and tendency, has been the subject of much discussion in the courts, and the decisions are not harmonious upon the question. The weight of authority, however, seems to be that such withdrawal cures the error, and such has been the opinion entertained by this court. Sutton v. State, 2 Tex. App. 342; Marshall v. State, 5 Tex. App. 273; Phillips v. State, 22 Tex. App. 139, 2 S. W. Rep. 601; Nalley v. State, 28 Tex. App. 387, 13 S. W. Rep. 670. See, also, State v. Towler, 13 R. I. 661; Thomp. Trials, §§ 715, 722, 723, and notes. In Sutton's Case, supra, it was said: "But conceding the court erred in admitting this testimony, the error, if in fact any was committed, was corrected by the court afterwards withdrawing it from the consideration of the jury." This ruling has been approved in subsequent cases, and the doctrine uniformly upheld that, when improper evidence has been admitted over objection, it is the proper practice, and may become the duty of the court, to exclude or withdraw it from the jury, and instruct them to disregard it in finding their verdict. Authorities above cited; Willson, Crim. St. § 2514. To hold otherwise would be to sanction the doctrine that the court could not cure any error into which it may have fallen by mistake or inadvertence, and thus render it helpless to rectify errors committed, and the trial a mockery and a farce. We cannot sanction such a doctrine. It is not intended here to hold that cases may not arise in which the withdrawal of testimony would not cure the error committed in admitting same; for it may occur that such evidence was of such a prejudicial character as to so influence the jury against the defendant that he would be deprived of a fair and impartial trial. We do not think, however, this evidence of that character.

5. The state proved by Arnold that, about three weeks prior to the killing, defendant, speaking of his previous arrests by deceased and other policemen, said "that every officer who gave him bond, or took his recognizance, it was all right, and he would be there the next morning; but if he would not be allowed to give bond, and had a gun with him, he would be damned if the fight didn't begin right there. He made similar statements to me repeatedly in the past year." Objections were urged that this testimony was irrelevant, showed no malice towards deceased, and tended to confuse and mislead the jury. Deceased was a policeman, was specially mentioned by defendant in connection with his previous arrests and conditional threats, was connected with the arrest of defendant just preceding the homicide, and was seeking his arrest at the time he was shot and killed. The evidence was directly pertinent to the issue of malice and motive. Campbell v. State, 15 Tex. App. 506; McKinney v. State, 8 Tex. App. 626; Hubby v. State, Id. 597; Willson, Crim. St. §§ 1043, 1044.

6. While under arrest, and within 15 minutes after the homicide, being informed of Brewer's death, defendant told some one in the crowd near him to "Tell Sam Miller to come down here. By God! I have got my man!" It was objected that defendant was under arrest, was not cautioned or warned, and was in fear of his life. The testimony was res gestæ and properly admitted. Lewis v. State, 29 Tex. App. 201, 15 S. W. Rep. 642; Fulcher v. State, 28 Tex. App. 465, 13 S. W. Rep. 750; Castillo v. State, (Tex. App.) 19 S. W. Rep. 892; Powers v. State, 23 Tex. App. 42, 5 S. W. Rep. 153.

7. Error is assigned because the court charged the jury as to the law applicable to murder in the first and second degrees, and refused to confine their consideration of the case to the issues of self-defense and manslaughter. In this connection the evidence discloses that defendant about three weeks prior to the homicide, and on several previous occasions, alluding to his "many arrests," said that deceased and other policemen had given him bail, but if, upon future arrests, they should refuse to take his bond or recognizance, he would have his pistol and "he would be damned if a fight did not commence, and he would never be carried to jail alive." When arrested at the railroad depot, shortly before the homicide, he assented, and willingly accompanied the officers to Lacy's saloon, on the opposite side of the street. Deceased participated in this arrest, but did not accompany the parties to the saloon, and was not further connected with his detention. While in the saloon, Beard, one of the policemen making the arrest, having telephoned for the patrol wagon, refused defendant's request for ball because he "did not know exactly what the charge against him was, and Ed Cornwell [chief of police] had told him to bring him to the police station," and also said to defendant, "Go and see Ed, and it will be all right." Anticipating no trouble, Beard left the defendant in the saloon, in the custody of another policeman, Brandenberg, who, upon two similar requests, refused to release defendant on bond. Upon the last refusal, and while Brandenberg was engaged in conversation with another party, defendant drew his pistol, leveled it at the officer's face remarking, as he did so, "By God! here's my bond," or "By God! I will have bond," and jumped or backed out of one door as the officer went out of another. Just as they emerged from the doors, def...