Moore v. State

• Decision Date: 25 February 1903
• Parties: MOORE v. STATE.
• Court: Texas Court of Criminal Appeals

72 S.W. 595

MOORE v. STATE.

Court of Criminal Appeals of Texas.

February 25, 1903.

Appeal from district court, Hill county; W. Poindexter, Judge.

A. J. Moore was convicted of murder in the second degree, and appeals. Reversed.

Chas. M. Smithdeal and Horton B. Porter, for appellant. B. Y. Cummings, Asst. Co. Atty., C. F. Greenwood, Co. Atty., and Howard Martin, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of 45 years; hence this appeal.

The record shows that the killing occurred on Sunday night. Deceased and appellant had both gone to church. Deceased before or about the time church was out started to walk home with Susie Jones, who, it appears, was the sweetheart or affianced of appellant. Appellant objected to this. However, Susie persisted in returning with deceased, Mat Hunt, when defendant slapped her in the face, and some words passed between him and deceased. After Susie and deceased had gone, appellant followed with Mary Roberts, the sister of Susie Jones, who lived at the same place; that is, at the servant house of one Bowman, in the town of Hillsboro. When appellant and Mary arrived, they found deceased and Susie sitting on a box in the yard, some eight or ten yards from the servant's house. Appellant and Mary went into the servant's house, and, after they had been there some 10 or 15 minutes, Alex Anderson came to the servant's house, and sat down in the doorway. Directly he pulled out a pistol, and laid it in his lap, and appellant asked him to give it to him. He did not hand it to him, but appellant reached over and took it out of his hand. Appellant then asked Mary to tell Susie to come in; that he wanted to talk with her. This she declined to do. Appellant then went out to where she was, and in a very short time a shot was fired, which killed deceased. The state's testimony tended to show that deceased and Susie were still sitting on the box when appellant came out. He came up to where they were, and slapped Susie, and deceased got up from where he was sitting, and said, "You ought not to hit the girl." Appellant then came around near to deceased, and shot him, the deceased doing no act and making no demonstration of hostility at the time. After the shooting, appellant went back to the house, and Alex Anderson succeeded in taking the pistol from him. According to appellant's theory, which is supported by his own evidence, when he went out where Susie was he found her sitting in the lap of deceased. She being at the time engaged to marry appellant, this incensed him, and he slapped Susie in the face. Mat Hunt, deceased, jumped up, saying, "`That is all right, A. J., I am your friend,' and ran his hand in his bosom low down about the waist of his pants, like he was about to draw his pistol, and defendant, thinking he was about to draw a pistol in order to kill or hurt him, pulled his pistol, and shot deceased." This is a substantial statement of the facts of the case.

Appellant made a motion to continue the case, his motion being predicated on the allegation that Alex Anderson had been arrested, charged with complicity in the same offense, and that he had not been indicted, but that the state was keeping him in jail under the pretense that it would indict him, in order to deprive appellant of the benefit of his testimony; that, if the case was continued, said Anderson would not be indicted, and appellant would have the benefit of his testimony, untrammeled by the shadow of any prosecution. It is further shown that the offense was committed on the 31st of August; that this was the first term of the court since the homicide; and that the indictment was only returned against appellant on the 2d of October, and this case set down for trial on November 6th. Appellant further offered to prove that an investigation would show that there was nothing against said Anderson, and that the state merely kept said prosecution pending against him in order to deprive appellant of the full benefit of his testimony. This offer was in general terms, no witness being named by whom appellant expected to prove this very serious accusation against the state. The court explains the bill of exceptions and the overruling of the application for continuance by stating "that the grand jury was still in session, and the witness Alex Anderson was still in jail on the same charge, and no bill of indictment had yet been returned against him; and, further, he had the said Alex Anderson brought out of jail, and tendered him to defendant as a witness, and defendant had the opportunity of privately consulting with said Anderson, and after such consultation declined to put him on the stand." If Alex Anderson had been indicted with appellant for said homicide, or indicted separately for the same offense, it would have been competent for appellant to have claimed a severance, and, without objection on the part of said Anderson, to have him tried first, and on his acquittal he might have made a witness of him. But we know of no rule of law providing that, where a party who might be implicated or thought to be implicated in the same offense, and who had not been indicted, the defendant could claim a continuance in order to procure the testimony of said witness at some future time should he not be indicted. Indeed, the statute in reference to severance provides, and the decisions hold, that a severance, without some other sufficient cause, shall not operate as a continuance to either party. Of course, on a proper showing the state would not be permitted to hold a prosecution over such witness merely for the purpose of handicapping the witness in his testimony. Price v. State (Tex. Cr. App.) 40 S. W. 596. Here, however, appellant makes no showing as to by what witness he can prove that the state was merely keeping the witness under the shadow of prosecution for the purpose of depriving defendant of the benefit of his testimony. If he had alleged some facts, and tendered some witnesses by name, another question would arise. As presented, it occurs to us that the tender of the witness to appellant was a sufficient answer to his motion to continue the cause. If...