Mohler v. State

• Decision Date: 15 October 1924
• Docket Number: (No. 8528.)
• Citation: 265 S.W. 553
• Parties: MOHLER v. STATE.
• Court: Texas Court of Criminal Appeals

265 S.W. 553

MOHLER v. STATE.

(No. 8528.)

Court of Criminal Appeals of Texas.

October 15, 1924.

Appeal from District Court, Eastland County; E. A. Hill, Judge.

R. H. Mohler was convicted of murder, and he appeals. Reversed and remanded.

Elzo Been, Asst. Co. Atty., of Rising Star, and Tom Garrard, State's Atty., and Grover C. Morris, Asst. State's Atty., both of Austin, for the State.

MORROW, P. J.

The offense is murder; punishment fixed at death. The evidence was circumstantial. Appellant and deceased left Cisco late in the evening of August 10, 1922, the deceased stating that he was going to take a man to De Leon. The parties were seen together in the car of the deceased at Carbon, which is in Eastland county, and the deceased there inquired the way to De Leon. Gorman, also in Eastland county, was some miles distant from Carbon. The parties left Carbon after sundown. It was practically dark. The conditions were such that it would take from one to two hours to drive from Carbon to Gorman, a distance of about 10 miles.

The state's evidence shows that Maples was not seen alive at any time after leaving Carbon on the night of August 10th. The appellant testified, however, that he and Maples traveled together in the latter's automobile to a point in Coryell county near a village called Levita. Appellant had a brother residing on a farm about 3 miles from the village mentioned. According to the appellant's testimony, he and the deceased arrived at the farm mentioned early in the morning of the 11th of August, having spent the night together on the way; that upon their arrival at the farm of the appellant's brother, the appellant purchased from the deceased his automobile and paid him the sum of $520; that this fact was known to the brother of the appellant; that after meeting the brother, the appellant went to the home of the brother, or into his pasture, to hunt for some mules while the brother undertook to convey Maples to Levita; that the brother, after an absence of half an hour, returned to his farm and subsequently admitted to the appellant that he had killed the deceased.

Some seven months subsequent to his disappearance, the remains of the deceased were found in a pasture near the home of the appellant's brother in Coryell county. The remains gave evidence of a violent death by the crushing of the head. Near the body was found a piece of wire and the hat of the deceased. There was some testimony that a search was made along the route between Carbon, in Eastland county, and the place where the body was found; that no wire like that which was found near the body of the deceased could be found, except at a point on the road near Carbon at a creek called Nash's creek. According to the testimony there were certain peculiarities about the wire which was found near the body of the deceased, which peculiarities were not observed at any other point.

Appellant's brother testified that, on the morning of the 11th of August, his attention was attracted to the starting of a Ford car in the Whitehead pasture at a point about 140 yards from the place where the body of the deceased was afterwards found, which was about 1,100 yards from the house where the witness resided. The car mentioned was driven by the appellant, and in it he went to the home of the witness. Appellant, according to his testimony, after learning from his brother that the latter had killed the deceased, felt that he must leave the country, and did so in the car of the deceased, taking his family with him. He traveled over the country and camped out for a long time until he was finally arrested in Wilson county. This was after the body of the deceased was found. After his arrest, according to the state's testimony, appellant had a conversation with the witness Gray, which led to the finding by the witness and appellant's brother of a book which was hidden under a rock near the place where the body was found, which book was the property of the deceased.

Complaint is made of the refusal of the court to instruct the jury that the venue was not proved, and for that reason to return a verdict of not guilty. The bill of exceptions taken to the refusal of the court to give a peremptory instruction contains only this language:

"That the state's evidence showed that the defendant and the deceased left the town of Carbon about sundown on the evening of August 10, 1922, going in the direction of Gorman, Tex., which was about 10 or 12 miles east of Carbon and in the direction of the county line of Eastland and Comanche counties, and were not seen any more in said Eastland county, and that the dead body of the deceased was found in Coryell county, Tex., about 123 miles from Eastland, Tex., on or about the 2d day of March, A. D. 1923, and defendant prays the court to approve this bill of exceptions, and that it be made a part of the record in this cause, which is accordingly done."

In article 938, C. C. P., it is stated:

"* * * In all cases, the court shall presume that the venue was proven in the court below, * * * unless such matters were made an issue in the court below, and it affirmatively appears to the contrary by a bill of exceptions."

In construing this statute, this court, in McGlasson's Case, 38 Tex. Cr. R. 360, 43 S. W. 94, used this language:

"It occurs to us that this statute requires this court to indulge the presumption that the venue was proved in the court below, unless the bill of exceptions shows affirmatively that it was not proved. This would seem to apprehend that, before we can treat the venue as not proved, the court must either certify that the evidence did not establish the venue, or that said bill of exceptions should contain all the testimony in the case tending to show venue, and certify that same was all the testimony bearing upon that issue; and from this statement of the testimony it affirmatively appears that the venue in the case was not proved. If this be a true construction of said article, then the bill in question does not comply with the requirements of the law."

This construction of the statute has been consistently applied. See Allen v. State, 82 Tex. Cr. R. 416, 199 S. W. 633, and cases therein cited. Tested by this rule, it seems that the bill of exceptions is incomplete in that it fails to contain any certificate of the trial judge to the effect that all the testimony bearing upon the issue of venue was contained in the bill. From the statement set out in the bill, it does not affirmatively appear that the venue was not proved. We have examined the statement of facts containing about 350 pages and embracing the testimony of nearly 100 witnesses, with the view of ascertaining whether, in fact, the record would affirmatively show that the homicide was not proved to have taken place in Eastland county. The record, from the state's testimony, makes it clear that the deceased was last seen alive in company with the appellant at Carbon, in Eastland county, and that at that time the appellant and deceased were riding together in the car belonging to the deceased, and were on their way to De Leon in Comanche county, a distance of some 25 or 30 miles from Carbon. No witness, either for the state or the appellant, saw the deceased after he was seen in Carbon, and the appellant's theory that he and the deceased continued in company with each other until they reached Levita in Coryell county is controverted by the testimony of the appellant's brother. In our opinion, the evidence fails to show that the homicide did not take place in Eastland county; on the contrary, the evidence is such as would warrant the jury in finding that the deceased met his death in Eastland county. The court was not in error in refusing to instruct the jury that venue was not proved. The question of venue, under the evidence, was one of fact which might with propriety be determined by the jury under proper instruction.

A first application for a continuance was made on account of the absence of several witnesses therein named. The action of the court in overruling the motion was made the subject of exception, and is properly brought forward for review. From the bill it is made to appear that a subpoena was issued for Mr. and Mrs. Luther Tucker, who were residents of Bell county. These witnesses, according to the motion which is not controverted upon that point, would have testified that about one week...