Murphy v. State

• Decision Date: 21 June 1899
• Citation: 51 S.W. 940
• Parties: MURPHY v. STATE.
• Court: Texas Court of Criminal Appeals

51 S.W. 940

MURPHY v. STATE.

Court of Criminal Appeals of Texas.

June 21, 1899.

Appeal from district court, Ft. Bend county; Wells Thompson, Judge.

James Murphy, alias William Jones, was convicted of murder, and appeals. Reversed.

C. C. Everett and R. H. Woody, for appellant. John M. Pinckney, Dist. Atty., L. M. Williamson, Co. Atty., Wharton Bates, Spencer C. Russell, and Robt. A. John, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of murder, and his punishment assessed at death, and he prosecutes this appeal.

Appellant made a motion for change of venue, alleging prejudice against appellant in the county of Ft. Bend. This was only sworn to by appellant, with no compurgators. The application shows, as an excuse for failure to procure the compurgators, that appellant was a strange negro, and friendless, and the case was one of unusual interest, and a certain confession of appellant had been published in a newspaper, and had gone broadcast over the county, and so much prejudice had been engendered against appellant that he could not obtain a fair and impartial trial, and that he could not procure compurgators to make the affidavit for change of venue. This was overruled by the court. Appellant also presented said motion, and asked that the court order proof on the same, and exercise his discretion to change the venue as upon his own motion. This the court declined, and appellant excepted. We cannot say that the court committed an error in regard to overruling the application for change of venue. It was not a compliance with the statute for a change on appellant's motion, for it was not accompanied by the affidavits of compurgators. While the statute authorizes the change of venue on the court's own motion, yet we know of no rule that would compel the court to exercise its discretion. We would further observe in regard to this motion that, while appellant suggested to the court to order proof, the motion does not show that he offered any evidence of any witness or witnesses. While we cannot say that the court erred in overruling the application for change of venue, we would observe that the presentation of the question called on the court very strongly to thoroughly investigate the condition of the public mind with reference to the charge against defendant, in order to ascertain whether or not he should exercise his discretion to change the venue of his own motion; and we indulge the presumption that the court did this.

Appellant made a motion for continuance to obtain James B. Dickson and C. C. Spanes, of Phillips county, Ark., where appellant was alleged to have been raised, to prove the general reputation of defendant as being a man of peaceful conduct, of unimpeachable character, and of harmless disposition, and further to prove that he had never been guilty of any offenses in Arkansas, and had not left that state on account of any charge. (This was in rebuttal of the alleged rumor that the state would seek to prove this by the alleged confession of appellant.) The continuance was furthermore sought to procure the testimony of Mrs. Boarman, alleged to reside near the town of Donaldsonville, in Ascension parish, La. It was alleged that by this witness appellant would be able to prove that he had worked for her in the month of October, 1898, and until the 2d day of November, 1898; that he left her place on Wednesday morning, November 2d; and that it was physically impossible for him to have been at Richmond, in Ft. Bend county, on the night of November 2, 1898, the time when the state's evidence would show that Kirkland, the deceased, was killed at his home in said last-mentioned county. In this connection defendant showed that this was his first application for continuance; that he had been confined in jail since November; that he was not able to employ counsel; that he was only indicted on the 18th day of March, 1899; that counsel was appointed for him by the court on the 22d day of March; and that such counsel immediately conferred with their client, and set about obtaining all the information possible in regard to his case; that there had been no examining trial, and that the state had studiously kept from defendant a knowledge of the case against him; that his counsel sued out a writ of habeas corpus to obtain bail, and for the purpose of developing the state's case; that the district attorney, in order to defeat the purpose of counsel to obtain a knowledge of the state's case, admitted the case to be bailable, and the court, at his suggestion, refused to allow appellant to examine the state's witnesses, whom he had subpœnaed. That appellant's counsel, from information derived from their client, wrote to defendant's relations and friends in Arkansas to obtain all the information they could with reference to defendant, but only within the past day or two had they received any reply, and that counsel had therefore not had time to obtain the depositions of witnesses necessary and indispensable to defendant's defense; and that defendant had no means to meet the expenses of hunting up witnesses or taking depositions. In the view we take of this matter, the court should have granted the continuance, or, if the term admitted, at least have postponed the case a sufficient length of time to enable counsel to obtain the depositions of said witnesses. Aside from the corpus delicti (that is, the death of deceased by violence), the state's case depended almost wholly on the testimony of officers as to appellant's confession of the homicide. No witness was produced by the state showing that appellant was in the town of Richmond, Ft. Bend county, on the 2d day of November, 1898; and certainly if he could prove by Mrs. Boarman, of Donaldsonville, La., or by any one else, that he was at Donaldsonville on the 2d of November, it would be very material testimony on his behalf. And, moreover, if appellant could prove by persons who had known him all his life that he had borne a good reputation...