Mitchell v. State

• Decision Date: 04 December 1895
• Citation: 33 S.W. 367
• Parties: MITCHELL v. STATE.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Criminal Appeals

33 S.W. 367

MITCHELL v. STATE.¹

Court of Criminal Appeals of Texas.

December 4, 1895.

Appeal from district court, Ft. Bend county; T. S. Reese, Judge.

A. H. Mitchell was convicted of murder in the second degree, and appeals. Affirmed.

J. R. Mitchell, John C. Mitchell, F. M. O. Fenn, and J. B. Brockman, for appellant. Mann Trice, for the State.

HURT, P. J.

Appellant was tried in the court below on the charge of murder, was convicted of murder in the second degree, and given five years in the penitentiary. From said judgment and sentence he prosecutes this appeal.

Appellant made a motion for a continuance, which was overruled by the court. He presented the same question in a motion for a new trial, which was also overruled, and he assigns the action of the court in this regard as error. Appellant desired to continue the case on account of the absence of the following witnesses, alleged to reside in Ft. Bend county, to wit, W. McNeal, George Harvey, Henry King, and Johnnie Williams, and for the witnesses Steve Bland, Mayfield Williams, and B. Chancery, alleged to reside in Harris county. With respect to the witnesses in Ft. Bend county, we are of the opinion that the appellant failed to show proper diligence. The indictment was found in this case on the 27th day of September, 1895, and on the 1st day of October appellant applied for and had subpœnas issued to Ft. Bend county for said witnesses. The case was called for trial on the 9th day of October. The application recites that the subpœna was now in court. It does not show when it was returned, nor how far said witnesses lived from the county seat. If the process had been returned several days before the case was called, and the witnesses were absent, it was the duty of appellant to have obtained attachments for said witnesses; and when the case was called for trial, it was three or four days before the evidence closed in the case, and yet no effort is shown in the application to obtain the attendance of said witnesses. We reasonably presume that, if they lived in the county, their attendance could have been secured by any reasonable effort on the part of appellant before the close of the testimony. By the absent witnesses McNeal, King, and Johnnie Williams the appellant alleges that he expected to prove that they were in the town of Richmond on the night of the homicide, and at the time it occurred, and saw two of the principal state's witnesses, to wit, Sophie Hunter and Annie Collins, some of them seeing one and some the other, and that at the time the shot was fired said witnesses were in such position and locality that they could not have seen the homicide or any part of it, as they testified to on the trial of the case. Now, conceding that proper diligence was used to procure the attendance of said witnesses in this case, still, if the testimony of the two state's witnesses whose evidence it is proposed to impeach is eliminated from this case, which is the object of the absent testimony, yet we fail to see how it would affect the result reached on the trial. Looking to the appellant's testimony, the most that can be said is that Kane Neal killed the deceased, and not Mitchell, the appellant; but the testimony of one or more of said witnesses for the appellant shows that, at the very time of the homicide, in pursuance of an agreement between the parties, the appellant, in company with Neal, was pursuing the deceased, and was present at the very time he was killed, and was participating in the homicide, and the testimony of a number of other witnesses on the part of appellant tends circumstantially to establish the same fact. The same observations will hold good as to the witnesses for whom attachments were issued to Harris county, namely, Steve Bland and Mayfield Williams; and, moreover, we would remark, as to the Harris county witnesses, that one of them, to wit, Chancery, by whom, according to the application of appellant, more testimony of a more material character for appellant could be elicited than by either of the other witnesses,—that before the beginning of the argument in the case, said witness Chancery was produced and brought into court, and no effort was made on the part of the appellant to avail himself of his testimony. If the appellant failed to avail himself of the best witness he had, according to his affidavit, when it was within his power to produce them before the jury, we cannot reasonably presume that he would have used the other witnesses had they been present. We would further observe that the application shows that the writs of attachment for said witnesses to Harris county were not returned. It was his privilege to have caused other writs to issue, and to have made a motion requiring the Harris county officer to make return of said writs, yet the appellant failed to do either, and so was lacking in diligence.

In regard to the special venire man Packer, the court used proper diligence to obtain his presence, and a reasonable time was awarded to secure his attendance, which was unsuccessful, and there was no error in skipping his name and proceeding with the impaneling of the jury. The same observations may be remarked about the venire man Stratman. Article 640 of the Code of Criminal Procedure provides that no cause shall be unreasonably delayed on account of the absence of those who have been summoned. With reference to the venire man, T. W. Ayler, it appears that the list furnished the appellant contained the name T. W. Oyler, which bore the number 27. When this number was reached "T. W. Ayler" was called, instead of "T. W. Oyler." Appellant objected to examining and passing upon Ayler, contending that Oyler should be called. It does not appear that Oyler had been drawn or served, the rule being that where a juror is misnamed in the copy of the special venire served upon the defendant, it is the proper practice to stand him aside. Thompson v. State, 19 Tex. 594; Swofford v. State, 3 Tex. App. 77; Bowen v. State, Id. 618; Hudson v. State, 28 Tex. App. 323, 13 S. W. 388; Hubbard v. State, 72 Ala. 164. The 100th name on the special venire, as drawn, was one Priester. In the copy served upon the defendant, this name was Briester. Appellant made the same objections, when this name was reached, as he did with reference to Ayler. There is nothing in the bill of exceptions to show that Briester had been drawn on the special venire, or that such a man existed. The court overruled the objection, to which appellant excepted. We make the same reply, supported by the same authorities, with reference to this venire man that we have to the venire man Ayler.

The court excused the venire man H. R. Chapman on the ground that he was hard of hearing, and not able to understand the proceedings in court. The appellant objected to this, and reserved his bill of exceptions. In this action of the court there was no error.

There was no error in the court charging the law of murder of the first degree, the appellant having been convicted of murder in the second degree. This charge is frequently necessary in order to clearly draw the distinction between the two degrees. Nor was there any testimony in this case calling for a charge upon negligent homicide. If Neal and this appellant agreed and combined to do an unlawful act, such as to beat the deceased, and the deceased was killed by Neal in the attempt to execute the common purpose, the appellant would be guilty of murder, and nothing less, though he had not contemplated the death of deceased. The charge of the court is more liberal on this point than the appellant was entitled to. If the appellant killed the deceased, which is supported by very strong testimony, he was evidently guilty of murder. If Neal, in pursuance of the combination to inflict a battery upon deceased, appellant, being a party to the combination, is guilty of murder. There could possibly be no manslaughter, because of the want of a provocation. If the killing was accidental, either by Neal or the appellant, the court instructed the jury to acquit, and this was all that the appellant could have asked. In this connection, we would observe that, when the testimony of absent witnesses is looked to and weighed along with the legal propositions above stated, it would serve the appellant no legitimate purpose; for, whether Neal or the appellant shot the deceased, when viewed in the light of the testimony, which is not contradicted, they combined to commit a battery, this appellant would be guilty of murder. To restate, let us concede that Neal killed the deceased, and not this appellant. Let us concede that those women were not present. Yet it is an absolute fact that Neal or the appellant—one—killed the deceased in the execution of an unlawful design, namely, to commit a battery upon him. This being the case, he would be guilty of murder, though Neal did the shooting. Brennan v. People, 15 Ill. 511; 2 Hawk. P. C. c. 29; 1 Hale, P. C. c. 34; 1 Russ. Crimes, 24; Chit. Cr....