Muldrew v. State

• Decision Date: 01 April 1914
• Docket Number: (No. 2831.)
• Parties: MULDREW v. STATE.
• Court: Texas Court of Criminal Appeals

166 S.W. 156

MULDREW v. STATE.

(No. 2831.)

Court of Criminal Appeals of Texas.

April 1, 1914.

Rehearing Denied April 29, 1914.

Appeal from District Court, Milam County; J. C. Scott, Judge.

Boyd Muldrew was convicted of manslaughter, and he appeals. Affirmed.

Robert Lyles and Henderson, Kidd & Gillis, all of Cameron, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

PRENDERGAST, P. J.

On a trial for murder appellant was convicted of manslaughter, and his punishment assessed at the lowest prescribed by law.

On Saturday night, May 10, 1913, appellant killed George Williams, and, as a part of the same transaction, and immediately thereafter, he also killed Curtis Bland. The killing occurred in Milam county, about 22 miles from Cameron, the county seat. The next day, Sunday, he went to Cameron, surrendered to the sheriff, and was placed in jail. On Monday following, complaint was duly filed against him before the justice court at Cameron, charging him with the murder of said Williams. The district court was then in session. On May 15th the justice entered an order admitting appellant to bail. It seems he did not then make bond. No reason is shown why he did not. On the same date the grand jury returned two bills of indictment against him, one charging him with the murder of said Williams, the other, of said Bland. Capiases in each case were duly issued and served on him, and he was then confined in jail under each capias. On the same day his trial for the murder of Williams was set for June 2, 1913, and a special venire of 100 men ordered and issued, returnable May 30th. Because of some defect in the first indictment against him, on May 21st, the grand jury preferred another in lieu of the first, charging the murder of said Williams. This case was set for trial for the same day as under the previous indictment, June 2, 1913, and a special venire of 100 men ordered and issued, returnable May 30th. The latter venire was duly executed by the sheriff, returned within the time, showing that 93 out of the 100 men ordered summoned had been summoned and were in attendance in obedience thereto on June 2, 1913. The case against him for the murder of Bland had not been set for trial. Some time on the morning of June 2d, appellant presented his petition for writ of habeas corpus to Judge Scott, presiding judge, who, it seems, at once granted the application, and ordered the sheriff to produce him thereunder at 9:30 o'clock that morning. The district attorney at once made a motion, for various reasons, shown by it, asking the judge to deny said writ of habeas corpus and a hearing at that time on it, and proceed to the trial of the case before the jury. The court heard the matter and the evidence thereabouts, and on the same day rescinded his order granting the writ of habeas corpus and hearing thereunder and directing that the writ, or application for said habeas corpus, would be heard at some later date, as early as the business of the court would permit. Thereupon appellant duly excepted, and asked till next morning to file his application for a continuance, which was granted. On the next morning appellant made a motion to continue, claiming substantially, in effect, that, while various attorneys had been at once employed by appellant, some of them had been engaged in the trial of cases in said court, and did not have much time to investigate the facts of the case; that a large number of the witnesses for the state were the kinsfolk of the deceased, and that they had agreed, among themselves, not to tell, and would not tell, appellant's attorneys what their testimony would be, and that he had a right to bail and to be on bail while this case was being tried; and that the hearing, under the habeas corpus, was practically their only available method of finding out what the testimony of the said state's witnesses would be.

Under the circumstances and facts of this case, the court did not err in declining to hear the case on habeas corpus, when an application to him for that purpose was first made on the very day the case was set for trial, and a special venire had been duly ordered and were in attendance. No sufficient reason whatever is shown why, if appellant desired a hearing on habeas corpus, he did not sooner apply therefor. There was ample time for him to have done so and had a hearing if it was so important to him that he should. This case does not come within the rule in the case of Streight v. State, 62 Tex. Cr. R. 471, 138 S. W. 742. There the application for habeas corpus had been applied for some time before the trial, and as soon as it could reasonably have been done after indictment found, and no sufficient or good reason was shown why the habeas corpus hearing in that case was not had before the day the case was set for trial. In that case we said: "Of course, the court should not permit continuances to be secured by merely filing an application on the day set for trial of a case, or so short a time before that day as to render it impossible to hear it before the day set for the trial." What we then said particularly applies to this case. The court's action in declining at the time to hear the case on habeas corpus and thereby continue the case was correct. Neither did the court err in not continuing it on appellant's said motion. Creswell v. State, 14 Tex. App. 1.

When appellant's motion for a continuance was overruled on the morning of June 3d, the cause proceeded to trial, and the jury was duly selected and impaneled. After the case had thus gone to trial, some time the next day, and before the indictment was read, and appellant entered his plea of not guilty, he filed a sworn plea seeking to have his sentence suspended in the event he was convicted of manslaughter. This clearly was filed too late, and the court was not required to submit that plea to the jury for a finding. The statute itself (Act Feb. 11, 1913, p. 8) expressly requires that, when appellant seeks to take advantage of the suspended sentence law he shall file his sworn plea, and must file it "before the trial begins" in order to avail himself of it. It is too late if he waits till after the trial begins before he files such plea. Williamson v. State, 163 S. W. 435. See, also, Roberts v. State, 158 S. W. 1003; Baker v. State, 158 S. W. 998; Potter v. State, 159 S. W. 846; Monroe v. State, 157 S. W. 155; King v. State, 162 S. W. 890. Without question, the trial of this case began as soon as the court overruled appellant's motion for continuance and forced him to trial and the selection of the jury began. C. C. P. arts. 654, 673, 698.

It is unnecessary to give an extended statement of the evidence in this case, or of the testimony of the respective witnesses. In some matters the testimony was conflicting. Taking it all, it justified the jury to believe, and was amply sufficient to show, that there was a little neighborhood dance at the house of Mr. Farlett, a relative of the deceased, on said Saturday night, May 10, 1913. Appellant did not live in that neighborhood, but quite a distance away in another neighborhood, and was not invited to said party by anybody directly connected therewith. He heard of the party while he was at Rosebud, and left Rosebud in the night, went to his home, and after, or about 9 o'clock that night, started to the party, reaching it about 11 o'clock, and after the dance had ended and part of the guests had gone home. Before leaving Rosebud, he proceeded to provide himself with a bottle of whisky, and, when he got to his home, just before starting to the party, he further proceeded to load up with a large six-shooter, and took with him at the same time said bottle of whisky. While going from his home to the party, he proceeded further to "tank up" on the whisky. He was a stranger practically to Mr. Farlett and the whole company dancing. There were only three or four ladies in the whole crowd who danced at all — perhaps not exceeding three. There were very few ladies at the party. All three of these ladies who danced were the sisters of the deceased. It seems that the party "broke up" at first because the musicians were not paid what they thought was agreed to. Appellant induced Mr. Farlett to let the dance be renewed, he (appellant) paying the musicians what they claimed, $1.15, and appellant stated to Mr. Farlett he had come a long distance to the dance, and, under the circumstances, desired to dance. Mr. Farlett agreed to this. The room was thereupon cleared out, some of the guests, among them one of appellant's sisters, who had returned home, was sent for, and she returned to the dance. After dancing awhile, appellant, it seems, desired to urinate, and proceeded to step out on the gallery of the very small house and urinated on the gallery very near the door of the room where the dancing occurred. While so urinating, Mr. Farlett took Mrs. Knouse, one of the deceased's sisters, and a little girl out on this gallery to get a drink of water, the drinking water being kept out there. When they stepped out on the gallery, Mr. Farlett, and, it seems, Mrs. Knouse, too, saw appellant urinating on the gallery. She and the little girl at once returned in the room, and Mr. Farlett complained to appellant of his conduct. Appellant went back into the house, and the dance was resumed, and Miss Bettie, another sister of deceased, danced with him. During the dance with her, he attempted to take liberties with her person, which she resented, and, because of his conduct, she refused longer to dance with him, and took her seat. He tried to force Miss Addie Farlett, the sister of the host, and also a kinswoman of the deceased, to dance with him. She declined, telling him she didn't dance at all, and hadn't danced that night with any other. He took hold of her arm and tried to pull her out, and she had to hold to the door-facing to...