Millican v. State

• Decision Date: 25 October 1911
• Citation: 140 S.W. 1136
• Parties: MILLICAN v. STATE.
• Court: Texas Court of Criminal Appeals

140 S.W. 1136

MILLICAN v.STATE.

Court of Criminal Appeals of Texas.

October 25, 1911.

Rehearing Denied November 15, 1911.

Appeal from District Court, Burleson County; Ed. R. Sinks, Judge.

Van Millican was convicted of murder in the first degree, and he appeals.Affirmed.

V. B. Hudson, J. R. Heslep, and John M. Mathis, for appellant.C. E. Lane, Asst. Atty. Gen., for the State.

PRENDERGAST, J.

The appellant was indicted by the grand jury of Brazos county for the murder of S. H. Barker therein on March 24, 1910.The venue of the case was changed to Burleson county, and a trial resulted in his conviction on December 3, 1910, of murder in the first degree and a life penalty given.

The theory of the state was that the appellant in effect waylaid and shot and killed the deceased.This was denied by the appellant, and he claimed that the deceased shortly before the killing had illegally arrested him and restrained him of his liberty, the deceased not being an officer, and having no authority or power whatever to arrest or restrain him and that after being so arrested and restrained in attempting to regain his liberty it became necessary to kill him to do this, and that the deceased shot at him first, and that he then shot the deceased, believing himself to be in danger of serious bodily injury or death at the hands of the deceased, and in his attempt to free himself.

It is unnecessary to state the evidence.We have carefully, more than once, gone over and considered it, and it is our opinion that the preponderance of the evidence established the state's theory of the killing, and that, while the testimony for the defendant would have authorized his acquittal, it was a question for the jury and the lower court, and this court is bound by the verdict of the jury and the decisions of the lower court on that point.

The appellant has 10 bills of exceptions which he presents, and one charge refused, and he attacks the charge of the court in some particulars, claiming that error is thereby shown which should result in the reversal of the case.

Appellant's first bill is: "Be it remembered that upon trial of the above entitled and numbered cause the defendant's witness, George Dunlap, a white man, being upon the stand, was asked by the prosecution upon cross-examination the following questions, to wit: `Q. Baby Thomas is your son—I mean Dunlap?'To which the defendant then and there, by counsel, objected that said question was asked for the purpose, and the only purpose, to prejudice the right of this defendant before this jury—and the further objection that you couldn't require this man to answer that character of question anyway.Which objections of the defendant to the said question were by the court overruled, and the court permitted the said question to be asked of said state's witness, George Dunlap, and the said witness was further required to answer said question, which he did as follows, to wit: `A.I will not answer it.'And said answer of said witness was permitted to go to the jury as evidence in the case, to all of which action and ruling of the courtthe defendant then and there by counsel excepted, and he now tenders this bill of exception, and asks that the same be allowed, signed, and filed as a part of the record in this cause."The court in allowing it made this explanation: "The witness Baby Dunlap and the defendant had the same mother.The question was permitted to show interest or friendship for defendant on the part of the witness George Dunlap.The state did not insist on an answer after the witness declined to answer the question."

The second bill shows that while the state's witness Jeff Barker was on the stand on redirect examination, after being crossed by the defendant, he was asked: "Q.Youstated that your brother told you he had sent him a threat?A.Yes, sir.Q.What sort of a threat?"To this question the appellant objected because the answer would be hearsay.The court replied: "You brought it out on cross-examination.Of course, ordinarily I would sustain the objection.Appellant's Attorneys: The testimony came out.The Court: The record will show exactly what was done about that."The witness thereupon answered: "He told me that he sent his little nigger boy to old Dan Choose to take his horse to him, that he had been working and this nigger came out to the road and met this little nigger boy, and told him to tell Mr. Barker, or Sidney, I don't remember which, that if he knew what was good for him that he would leave little Baby Dunlap alone, or what he would do for him when he met him would be a plenty," to which appellant excepted.The court in allowing the bill made this explanation: "The defendant having brought out on cross-examination and whereof I was of the opinion that the state had the right to question the witness on the matter."

BillNo. 3 shows that Sam Sims, the state's witness, on cross-examination by defendant, testified that, while he and Mr. Meredith were coming back, a negro boy, Riley Thomas, who lived at that time with Al Smith, who lived out about a mile and a half in the direction he came from, caught up with them.He was then asked this question: "That nigger boy wanted to get a gun, didn't he?" to which the state objected because it had nothing to do with the case, and the deceased was not present at the time, that witness would have answered that he asked Mr. Meredith for a gun for Al Smith.Appellant states that the object and purpose of this question and answer was that the contention of the defense is that the deceased, his brother and friends, had made up a plot, or was making up a plot, for the purpose of whipping this negro, and, if he resisted, to kill him, and they were gathering together with guns for that purpose.The court in ruling on the question said: "I don't know whether it would be material.I will sustain the objection for the present."There was no other offer at that or any other time, so far as the record shows, to ask this question for the purpose for which appellant claims it was asked, nor is there any evidence in the record tending to show any such plot for any such purpose.

BillNo. 4 shows that the attorney J. P. Buchanan, private prosecutor for the state, in the presence and hearing of the jury, just before the state closed or rested, said; "With this statement to the court, that we have Dr. Meredith here, and the defendant has a perfect right to use him, and we offer him to the defense, we close."This remark was objected to by the appellant for the reason that said Meredith is a friend to the prosecution, has assisted in employing private counsel to prosecute, and was the first witness for the state in the trial of the case when defendant was previously tried at Bryan, and that counsel knew that the defense was not in a position to put him on the stand, because he knew he was antagonistic to the defense, and, if the defendant had put him on the stand, he would have had to vouch for him as a witness, which he was unwilling to do, and unwilling to go into the camp of the enemy for testimony.The attorney for the state made no reply to this.The court in allowing the bill made this explanation: "When Mr. Buchanan made this remark above, counsel for plaintiff thanked him unequivocably for his liberality, stating that it was a well-known fact that they could put any one on the witness stand in regard to the matter as tried."

BillNo. 5 states that while the state's witness, Mrs. Mary Sims, was on the stand, she was asked and answered these questions: "Q.Now, Mrs. Sims, was there anybody with Mr. Barker?A.Not that I seen.Q.If there had been anybody with him, would you have seen them?A.Yes, sir; I could have seen him, and would have seen him."Appellant objected to the question because the answer would be merely an opinion of the witness, and she would testify to an opinion, and not a fact.The court overruled the objection and permitted the answer.

BillNo. 6 complains that upon the trial, and while Mr. Buchanan, private prosecutor for the state, was making his closing argument to the jury, there had gathered a large crowd in the courtroom, crowding inside the bar, and standing up just outside of it upon the benches as thick as men could stand together, hovering around the jury; that frequently during this time they gave vent to their feelings, in this: That while Mr. Buchanan was speaking every reference he made to the defendant or some fact in the case that suited the fancy of the crowd they would laugh out loud in such a manner as to call the attention of the jury to the fact that they were in sympathy with the prosecution; that appellant's attorney squirmed himself through the crowd to the judge's stand, and there suggested to the court that the defendant was not getting a fair and impartial trial, that the crowd ought to be seated and reprimanded for giving vent to their feelings as they had done; that appellant's counsel did this quietly in order not to offend the crowd, but especially of not calling the attention of the jury to that fact; that the court only said that he was going to keep them quiet, but failed to do so and again and again the crowd gave vent to their feelings as above described, showing their approbation and sympathy with the prosecution in the case; that appellant's counsel then interrupted Mr. Buchanan in open court and appealed to the court, saying that defendant ought to have and is entitled to a fair and impartial trial, and appealed to the court for protection against this open demonstration by the audience, saying that this was not a mob trial, but a judicial trial, and appealed to the court for protection.The court thereupon admonished the crowd to keep order, and not make any further demonstrations; that thereupon the audience remained in the same position, and made no vocal demonstrations, but continued to make facial demonstrations.In allowing the billthe court qualified...