Millner v. State

• Decision Date: 26 June 1914
• Docket Number: (No. 3200.)
• Citation: 169 S.W. 899
• Parties: MILLNER v. STATE.
• Court: Texas Court of Criminal Appeals

169 S.W. 899

MILLNER v. STATE.

(No. 3200.)

Court of Criminal Appeals of Texas.

June 26, 1914.

On Motion for Rehearing, October 14, 1914.

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Appeal from District Court, Bee County; F. G. Chambliss, Judge.

Howard Millner was convicted of being an accomplice to murder, and he appeals. Affirmed, and on rehearing sentence modified.

J. Gus Patton, of Goliad, and I. A. Patton, of Alice, and John Baker, of Beeville, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

This is the second appeal in this case, the opinion on the former appeal being reported in 162 S. W. 348. On this trial appellant was again convicted of being an accomplice to the murder, and his punishment assessed at 20 years' confinement in the state penitentiary.

The evidence in the case is fully stated in the opinion of Presiding Judge Prendergast, and the concurring opinion of Judge Davidson on the former appeal, therefore we do not deem it necessary to restate the facts. Sufficient to say that the evidence for the state showed that appellant was criminally intimate with deceased's wife; appellant visited the camp of deceased on Friday during his absence, remaining at the camp Friday night, and he admits he had sexual intercourse with deceased's wife that night, deceased being absent from the camp. Eli Pointer, who was convicted as a principal, was present at the camp Friday night, and kept the children of deceased and Mrs. Gosnell in another tent, while appellant was with Mrs. Gosnell. Saturday morning Eli Pointer carried appellant to the railway station, and he took the train and went to Placedo. Gosnell returned home Saturday, and he and Pointer got in the buggy to go to the camp, and on the way to the camp Pointer killed Gosnell, shooting him in the back of the head three times. Pointer went to the camp, secured one of Gosnell's horses, and also went to Placedo, getting to the boarding house where appellant was stopping about daylight.

The state proved by Mr. Bailey that appellant had talked to him before the killing about getting Mrs. Gosnell a divorce, and had inquired about how much of the property they could get from Gosnell; by a witness that appellant on Saturday tried to borrow $30, saying at the time he wanted to aid a friend who was in trouble to escape; that he did borrow $10 from his boarding house keeper, and this bill was later secured from Pointer's possession, as was also appellant's watch; that he tried to employ another man, a Mr. Miller, to get rid of Gosnell, and there were many other facts and circumstances which would authorize a jury to find that he advised, commanded, and encouraged Pointer to commit the offense, and the killing was committed under a prearranged agreement between Pointer and appellant, and the evidence fully sustains the verdict.

There are a large number of bills of exception in the record which is very voluminous, and we will take them up in the order in which they are presented in the record. In the first bill it is again contended that the court erred in placing appellant on trial before Mrs. Gosnell was tried. Both appellant and deceased's wife were indicted charged with being an accomplice of Eli Pointer in the killing of Mr. Gosnell. Appellant filed a plea asking that she be first tried, and she also filed a plea of severance, and asked that he be first tried. They being unable to agree, the court, in the exercise of the discretion conferred on him by law, entered an order placing appellant first on trial. Article 727 specifically provides that if two or more of such defendants make such affidavit and cannot agree on the order of trial, then the presiding judge shall direct the order in which the defendants shall be tried. The affidavit of Mrs. Gosnell was in conformity with the statute, and a justice of the peace, under our laws, is authorized to take affidavits.

In the next bill appellant files a plea of former jeopardy as to the offense of being an accessory to the crime. It appears by the record that the indictment contains two counts; one charging him with being an accomplice, the other charging him with being an accessory. On the former trial both counts were submitted, and he was convicted of being an accomplice. If on this trial appellant had been convicted of being an accessory, a more serious question would have been presented, for our decisions seem to hold that, when more than one count is contained in an indictment, a conviction under either count is an acquittal of the other counts. But as appellant was again convicted of being an accomplice, the same offense for which he was convicted on the former trial, and no testimony was admitted which was not admissible to prove that he was an accomplice, no reversible error is presented by this bill, for in it and in no other bill is it attempted to be shown that any testimony was admitted which might tend to show that he was an accessory to the crime, and was not admissible on the issue of whether or not he was an accomplice.

The third bill relates to the introduction of the testimony of Pete Miller, taken at the examining trial. On the former appeal this testimony was held admissible, and we see no reason to change our ruling. The evidence on this trial shows that the last time Miller was heard from he was in France, and there is no suggestion that he has ever again set his foot in the United States. It further appears that he was a refugee from justice, and the sheriff who held the capias for him had made diligent search and had not been able to hear from him or locate him since he was last heard from in France. We had this question before us in the case of Whorton v. State, 152 S. W. 1082, and Robertson v. State, 63 Tex. Cr. R. 216, 142 S. W. 533, Ann. Cas. 1913C, 440, and therein discussed in full the rules under which a dead or absent witness' testimony can be reproduced, and we see no reason to reverse our holding. And under those decisions, it appearing that Mr. McBride is dead, and has died since the last trial of the case, there was no error in permitting his testimony at the former trial to be reproduced.

Again, it is contended that statements made by Eli Pointer to Lonnie Smith and others in regard to the killing of Mr. Gosnell should have been admitted. We do not think any one could or would contend that if Pointer himself was on trial such statements would be admissible in his behalf, nor could the state introduce them; he being in jail charged with being a principal in this offense. The law would not and does not permit him to testify in behalf of his codefendant, and if he could not testify if called as a witness, certainly statements made by him when he was incompetent as a witness are not admissible. We discussed this question at length in Wyres v. State, 166 S. W. 1150, and cited the authorities, giving the reason for the rule, quoting approvingly the law as laid down by Judge White in Long v. State, 10 Tex. App. 197:

"If he cannot testify in person, how can he state facts to others and thereby enable them to testify to matters wholly derived from him? To permit this would be to abrogate the law." Article 791, C. C. P.

The court presented the issue of self-defense fully in his charge, other than it was contended that it was error to charge on the relative strength of the parties. No other objection to the charge at the time of the trial was made, and no other error attempted to be pointed out therein. The court instructed the jury that if Pointer in killing deceased acted in self-defense, appellant would be guilty of no offense, and should be acquitted, or if Pointer killed Gosnell for the purpose of robbing him, the jury should acquit appellant. Having presented all the issues fairly and fully, and in a way to which appellant's counsel made no objections at the time the charge was submitted to them for their inspection, the bills complaining of the refusal of the court to give the special charges requested present no error.

As to the objection made that the court erred in instructing the jury to take into consideration the relative strength of the parties, it is without merit, for the record teems with evidence brought out by appellant that Pointer was a young man, small, sickly, and weak, and under such circumstances the charge was authorized.

Again, it is contended that the court erred in admitting the confession of Eli Pointer in evidence. This question was passed on in the former appeal in this case, and the confession held to be admissible. It was necessary on this trial to prove that Pointer was guilty of unjustifiable homicide, and all testimony going to show that fact if he was on trial would be admissible on this trial to prove that same fact, and we do not think that any one can contend that if Pointer was on trial the confession would not be admissible. Of course, it was admissible only to prove this — Pointer's guilt — and not to prove the guilt of appellant as an accomplice, and had the court permitted it to be so used, it would present error. But the court properly limited the purpose for which said testimony was admitted, instructing the jury that same was admitted in evidence "for the purpose of showing and tending to prove that said Eli Pointer killed George Gosnell, and you will consider same for no other purpose in the case." The contention that the jury would ignore such instruction and might consider it for other purposes cannot be sustained in the face of such positive instructions.

In the record there are several bills of exception complaining that the court erred in refusing to permit defendant to prove that George Gosnell, deceased, had been having illicit relations with a negro woman. If he had, this would furnish no justification for killing him by appellant and Pointer. Such facts would shed no light on any issue in this case, and the court correctly held it inadmissible.

The eleventh bill complains of the action of the court in...