Mitchell v. State

• Decision Date: 26 June 1896
• Citation: 36 S.W. 456
• Parties: MITCHELL v. STATE.
• Court: Texas Court of Criminal Appeals

36 S.W. 456

MITCHELL v. STATE.

Court of Criminal Appeals of Texas.

June 26, 1896.

On rehearing. For former report, see 33 S. W. 367.

A. H. Mitchell was convicted of murder in the second degree, and sentenced to five years in the penitentiary. The judgment having been affirmed on appeal, defendant moved for a rehearing. Granted.

John M. Duncan, Wm. Sorley, F. M. O. Fenn, and J. B. Brockman, for appellant. Mann Trice, for the State.

HURT, P. J.

The appellant was convicted of murder in the second degree, and given five years in the penitentiary. He prosecuted an appeal, and the case was affirmed at the Tyler term of this court, and it now comes before us on motion for a rehearing. Counsel for appellant has filed an able brief presenting a number of questions, and insisting that in the affirmance of the case this court committed several errors, and urging upon us a careful review of the same in order that correct conclusions may be reached. He has also presented the same matters in a clear and forcible argument before this court. Aided by his lucid exposition of the matters involved in the case, we have again gone over it, and in the light of the argument and authorities cited have reconsidered all of the assignments, but we will content ourselves with presenting and discussing only such as are necessary to a proper disposition of the case, and such as are likely to occur again on another trial.

1. The appellant again urges that this court erred in holding that the lower court acted properly in overruling the motion for a continuance and in refusing a new trial based on the action of the court in overruling said motion. The motion for continuance was based on the absence of the following witnesses McNeal, Harvey, King, and Johnnie Williams, all residents of Ft. Bend county; and of Bland, Mayfield Williams, and Chancy, all residents of Harris county. We will first consider the question of diligence as to these witnesses. The indictment was returned into court on the 27th of September. Subpœnas were not issued for the witnesses who lived in Ft. Bend county until the 1st of October, and were made returnable on the 9th. The case was set down for trial on the 9th of October. The subpœna was served on Williams, but was returned as to McNeal, Harvey, and King, "Not found." No reason is shown in the application why process for these witnesses was not issued earlier. For aught that appears, if the subpœna had been issued at the earliest moment when appellant could have sued out process, these three witnesses could have been found and served. On the 30th day of September an attachment was issued to Harris county for Steve Bland and Mayfield Williams and on October 2d an attachment was issued for Chancy, also to Harris county. The application shows that the process for these three witnesses was not placed in the hands of the officer of Harris county until October 2d The application shows no reason why process was not sued out earlier for these witnesses, and certainly it should have been shown why the attachment was not issued for Chancy on the 30th of September; and some excuse should have been shown why the attachment to Harris county for Bland and Mayfield Williams was not delivered to the officer until October 2d. For aught that appears, this process could all have been issued earlier, and have been delivered to the sheriff of Harris county two or three days before it was, and might have been served upon said witnesses, and their attendance secured. In our opinion, there was a lack of diligence as to all the witnesses, both those residing in Ft. Bend county and those alleged to live in Harris county. But it is insisted that, although due diligence may not have been used to procure the attendance of these witnesses, by the motion for a new trial it appears that the testimony of the said absent witnesses is material, and probably true, and that a new trial should have been granted; and this appears to be the rule in accordance with the authorities in this state. See Willson, Cr. Proc. § 2186, and authorities there cited. The state's case mainly rested upon the testimony of Sophie Hunter and Annie Collins, in connection with the testimony of Kane Neal, an accomplice; the first two of whom testified that on the night of the shooting they were present, and saw it, and that the defendant, and not Kane Neal, did the shooting. This was a material issue in the case. The defendant introduced three witnesses who testified that they were in view when the shooting occurred, and that it was the taller man of the two who did the shooting. The evidence showed that Kane Neal was much taller than the appellant. Appellant himself testified that Kane Neal did the shooting. Appellant proposed to prove by Bland and Mayfield Williams that they saw the shooting; that Kane Neal did it, and not the defendant. By the witness McNeal that he heard the fatal shot, and at the time he saw Sophie Hunter, and she was in such position that she could not have seen it. By King and Harvey that they heard the shot, and at the same time Annie Collins was in their view, and that she could not have seen it. By Johnnie Williams that both Hunter and Collins were mad with the defendant, and he had heard them say they were going to swear against him to get even with him. This witness was served, but was not present. All of this testimony appears to be material, —that is, upon a vital issue in the case, —and it is in direct conflict with the state's theory and the evidence produced by the state on the subject; and the rule in this regard is, there must not only be such a conflict, but the inculpatory facts should be so strong and convincing as to render the truth of the facts set forth in the application improbable. See McAdams v. State, 24 Tex. App. 86, 5 S. W. 826. Under the circumstances of this case, we cannot say that the truth of the facts set forth in the application is improbable. But before we leave this branch of the case we would make some further observations on the question of diligence. The record shows that before the argument began the witness Chancy was brought into court. Appellant was apprised of the fact, for his counsel manifested some anxiety to have the account of the witness approved, so he could return to his home. Appellant made no effort to introduce this witness, and according to the application for continuance this witness saw the shooting, and would have testified that Kane Neal did it, and not the defendant. Appellant attempts to excuse himself on the ground that the court stated, when the testimony was closed, that he would hear no more testimony, except on some unforeseen contingency. This announcement was no excuse for the failure to tender the witness. Counsel should have proposed to place him on the stand, and, if the court refused to admit his testimony, he should then have reserved his bill of exceptions. It will be further observed that, although the trial in this case lasted four or five days, no effort was made to procure the attendance of any of the absent witnesses after the trial began. For aught that appears, by the use of reasonable diligence they could have been obtained in time to have testified in the case. Counsel, however, insist that on the overruling of his motion for a continuance he was not able to do any more in the way of diligence, and, no matter if said witnesses were accessible, and could have been produced, that upon the overruling of his motion for a continuance the case was, as to that matter, in statu quo, and this court could not look beyond the time of the overruling of the application for a continuance, as to the question of diligence. The statute places it in the discretion of the court to overrule a motion for a continuance, and then to re-examine the question on motion for a new trial, and to refuse a new trial, unless it should appear that the absent testimony was material, and probably true. And we hold that it is perfectly competent for the court to look to the action of the appellant and his counsel after the overruling of a motion for continuance, in passing upon the materiality or probable truth of the absent testimony. Suppose, in a trial of this character, counsel were informed by the court that the witness was in town, and could be had, and counsel should decline to ask for process to bring the witness before the court, or suppose that afterwards (as in the case of the witness Chancy) he should actually come into court, and appellant should decline to use him, would not the court be compelled to hold in such case that appellant was trifling with the court, that the witness would not swear what was alleged, or else appellant did not regard the testimony as probably true? Such occurs to us to be the inevitable conclusion. And thus considering the action of the appellant with reference to these witnesses, we would hesitate to accord a new hearing upon this ground.

2. Appellant objects to the charge of the court defining the extent of Mitchell's responsibility for the act of Neal, which charge is predicated upon the theory that Neal actually fired the fatal shot. The charge of the court on this subject is as follows: "All persons are principals who are guilty of acting together in the commission of an offense, having a common purpose or agreement to commit such offense. If an offense is committed by one person, and others are present, and, knowing the intent of such person to commit such offense, aid him by acts, or encourage him by words or gestures in the commission of such offense, all persons so present and aiding and encouraging or assisting are principal offenders, and may be prosecuted as such. You are instructed that if the defendant and Kane Neal agreed together to commit an assault and battery upon the deceased, or, in the language of the witnesses, to give him a beating, and went to the place where deceased was for that purpose, and did commit an assault and battery...