Mott v. State

• Citation: 51 S.W. 368
• Parties: MOTT v. STATE.
• Decision Date: 24 May 1899
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

51 S.W. 368

MOTT v. STATE.

Court of Criminal Appeals of Texas.

May 24, 1899.

Appeal from district court, Callahan county; N. R. Lindsey, Judge.

W. N. Mott was convicted of murder, and he appeals. Affirmed.

J. E. Thomas and Arthur Yonge, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of murder in the first degree, and his punishment assessed at confinement in the penitentiary for life, and he appeals.

The first bill of exceptions is to the action of the court overruling appellant's motion for a change of venue. In the motion, as is required by law, may be found the statement of facts on which the court acted in refusing to change the venue; and, after a careful perusal of the same, we cannot agree with counsel that the court committed any error in this regard. Appellant introduced a number of witnesses stating that some prejudice existed in the county against him on account of the homicide, but nearly all stated that notwithstanding this they believed appellant could get a fair and impartial trial in the county. The state also introduced a number of witnesses, and all, except the county clerk, appear to have been on the special venire summoned to try the case. Some of these state that they had heard the case mentioned, and some stated that they had heard it pretty generally discussed. The majority, however, said they had not heard very much said about it. All stated that, in their opinion, appellant could get a fair and impartial trial in Callahan county, and that they knew but little prejudice against him; that the discussion of the case, however, was generally unfavorable to defendant. On this testimony the court refused to change the venue, and we do not believe the court in this particular abused his discretion. Appellant, however, has contended in his argument that the court committed fundamental error in allowing the state to introduce the special venire summoned in this case on the question of the change of venue. It is sufficient answer to this to state that the action of the court as to this matter does not appear to have been challenged. At least no bill of exceptions presents it for our consideration. We have no statute interdicting the use of the special venire as witnesses on this question. As to a matter of mere practice, inasmuch as it is not presented by bill of exceptions, we do not deem it necessary to discuss it. It might be that on a proper motion, made at the time, the court might refuse to authorize the special venire to be used as witnesses on the question of the change of venue; or it might, after such use, on a timely motion, quash that venire, and order another. However, this matter is not presented for our consideration, and we would not be understood as holding one way or the other on the question, or as suggesting a proper practice.

The state introduced one Charley Merrick as a witness to prove a conversation between him and defendant on the day preceding the homicide, in which said witness testified, among other things, that defendant stated to him he feared he would have trouble with deceased, and that deceased "was another Zoomrie Hudson." Appellant objected to this testimony on the ground that it was not responsive to any issue in the case, was extraneous matter, and prejudicial to defendant. Unquestionably it was competent to prove the declaration of defendant to the effect that he feared he would have trouble with deceased. The record does not sufficiently inform us as to who Zoomrie Hudson was, so as to authorize us to say that this testimony was inadmissible, or was calculated to prejudice appellant. The bill merely informs us that Zoomrie Hudson had worked for defendant as a hired hand about a year before the homicide.

Appellant also...