Myers v. State

• Decision Date: 16 June 1915
• Docket Number: (No. 3601.)
• Citation: 177 S.W. 1167
• Parties: MYERS v. STATE.
• Court: Texas Court of Criminal Appeals

177 S.W. 1167

MYERS v. STATE.

(No. 3601.)

Court of Criminal Appeals of Texas.

June 16, 1915.

Rehearing Denied June 25, 1915.

Appeal from District Court, Tarrant County; Jas. W. Swayne, Judge.

C. A. Myers was convicted of murder, and he appeals. Affirmed.

Walter A. Nelson and A. J. Power, both of Ft. Worth, for appellant. Marshall Spoonts, Co. Atty., of Ft. Worth, and C. C. McDonald, Asst. Atty. Gen., for the State.

HARPER J.

When tried, appellant was adjudged guilty of murder, and his punishment assessed at death. From this judgment, he prosecutes an appeal to this court.

The first question presented is the court erred in overruling appellant's application for a change of venue. Appellant based his application on both statutory grounds. The state filed a contest of the application, when the court heard the evidence adduced thereon.

It may be said that there was no evidence tending to show that there was a dangerous combination against appellant, instigated by influential persons. There is nothing to suggest that anybody had combined, further than to show that the officers of the county had promptly arrested appellant, grand jury reconvened, and the cause set for hearing five days after the service of copy of indictment on him. That these officials acted promptly in what they considered the performance of their duty is not a combination of influential persons, within the meaning of the statute.

On the other statutory ground, "that there is so great a prejudice against appellant in Tarrant county he cannot obtain a fair and impartial trial," appellant did introduce some evidence tending to support that allegation.

He first called J. Ralph Griffin, circulation manager of the Ft. Worth Record, and Harold Huff, circulation manager of the Star-Telegram. These gentlemen testified as to the circulation of each of these papers in Ft. Worth and Tarrant county, and by them was proven up the articles published in these papers on January 20, 21, 22, and 23, 1915, and on October 30, 1914; the latter publication relating to the remarks and conduct of Judge Swayne, when the jury acquitted M. M. Hayes, charged with killing R. E. Boswell. It was contended that these remarks of Judge Swayne would have some influence by reason of the fact that Mr. Montague, whom appellant was charged with killing, had succeeded Mr. Boswell as superintendent of the terminals of the Texas & Pacific Railway Company, and that the evidence for the state in the Hayes Case tended to show that he had killed Boswell because he had discharged him, and that the evidence for the state in this case would also tend to show that appellant killed Montague because he had discharged him. Neither Mr. Griffin nor Mr. Huff were asked any questions as regards the state of feeling against appellant in Tarrant county, nor was their opinion elicited as to whether they thought appellant could receive a fair and impartial trial; they being introduced merely to prove up the publication of the articles included in the Record and Star-Telegram.

Wm. A. Bowen, publisher of the Arlington Journal, was introduced to prove up the article published in his paper. No questions were propounded to him tending to prove his opinion as to whether or not there was any prejudice against appellant in Tarrant county.

Ray H. McKinley, publisher of the Daily Live Stock Reporter, was introduced to prove up an article in his publications of date January 20th and 24th. He was asked no questions relative to the state of the public mind.

J. Lewis, publisher of the Keller Journal, testified as to the article published in his paper, and the circulation of his paper. He also testified that there had been considerable discussion relative to this killing in Keller, and the expressions of opinion were all unfavorable to appellant. He is the only one of the newspaper men interrogated in regard to that matter, and he was not asked to give his opinion as to whether or not there was so great a prejudice against appellant in Tarrant county as would prevent him being given a fair and impartial trial.

We have read all the articles included in the transcript, and they are in the main recitations of the facts attendant upon the homicide, although in some instances expressions of opinion are given. Especially is this true as to the remarks of Judge Swayne at the time of the acquittal of Hayes, and the remarks of Judge Brown in reconvening the grand jury to investigate this homicide. We are aware that at one time in the judicial history of this state it was held that the reading of such articles, and the fact that some impression was made on the mind of the person reading the articles, was held to disqualify a person as a juror. By reason that such had been declared to be the law, our Legislature, in section 13 of article 692, Code Cr. Proc., enacted that although a juror may have received an impression, or formed an opinion, from reading newspaper accounts of the homicide, communications, statements, or reports, or mere rumor or hearsay, if he on oath shall state that such impression or opinion so formed is so slight that it will not influence his action, and that he will be able, notwithstanding such impression or opinion, to render a fair and impartial verdict, the reading of such articles and the hearing of such reports or statements will not disqualify him as a juror. Since the adoption of that article of the Code, a person seeking a change of venue must not only show that such publications were made, but must go further and show by competent evidence that, by reason of such publications, statements, or reports, there has been created in the public mind so great a prejudice as will prevent him receiving a fair and impartial trial in the county. Now, in addition to proving up these publications, appellant called several witnesses.

Stanley Boykin, an attorney residing in the city of Ft. Worth, after reciting the incidents leading him to form his opinion, testified that he was of the opinion there was so great a prejudice in Tarrant county against appellant that he could not receive a fair and impartial trial. On cross-examination he stated he had not been outside of the city of Ft. Worth since the homicide, and his opinion had been formed from talking with a number of citizens in Ft. Worth; that he had talked to no one residing outside the limits of the city.

Dr. J. N. McKnight testified that there were something over 20,000 qualified jurors in the county, and that, if they had all read the papers, it would be possible, but in his opinion improbable, in the ordinary way to get a jury who had not formed an opinion. He resided in Ft. Worth, and most of the people with whom he had talked about the murder had expressed an opinion that appellant ought to receive a death sentence.

Mr. C. R. Kinchen testified he was a lawyer residing in Ft. Worth, and, after giving the reason for his opinion, stated it was his opinion that appellant could not get a fair and impartial trial in Tarrant county at this time. He stated he had not heard a great many express an opinion, and in giving the opinion he did he was presuming that the papers had been read by the qualified jurors in the county; that he had talked to no one from Arlington, Grapevine, Handley, Everman, Keller, Mansfield, or any other place in Tarrant county outside of the city of Ft. Worth.

B. H. Gibson testified he was a lawyer; that he had lived in Ft. Worth 15 years. He stated the reason why he had formed the opinion he held, and said:

"I do not think it possible at this time to secure a fair and impartial jury to try the case in Tarrant county."

On cross-examination he admitted he was a member of the Socialist organization in Ft. Worth, and that the Socialist organization, at a meeting where there were between 30 and 75 present, had passed a resolution requesting him and Mr. Edgar E. Johnson to tender their services to appellant. He further stated that the Socialists are opposed to capital punishment, and do not believe in the theory of capital punishment; that a discussion relative to this case was held at a meeting of the Socialist organization at the time the resolution was passed. And here we might say that, after this testimony was adduced, there was no error in the court permitting counsel to ask the various jurors if they were members of that Socialist organization.

On the question of whether or not a mob had been formed to do appellant injury, appellant called J. L. Reynolds, who testified he was jailer, and that on the night of the homicide, January 20th, he was on duty; that he heard certain rumors and telephoned to the sheriff, and they thought it best to carry appellant to Dallas, and he was carried there that night, but was brought back in a day or two, and had been in the Tarrant county jail since. In regard to people coming to the jail that night after appellant left, he said:

"I was on duty when a committee of five came up there to see if he was in the jail, but there was no mob. I do not remember the names of the committee. One was Mr. Bomen, I think, a fellow down at the Texas & Pacific. They said they wanted to talk the matter over with him, but I did not talk much with them. I carried them over the jail after Mr. Myers had left. I suppose they wanted to see him. I did not feel any danger, just turned them in. I don't know whether there was a mob out in front. Just these five men came in, and they did not make any statements to me. I did not hear any conversation on the outside of the jail. If there was a mob out in front, I did not see them."

These are the witnesses called by appellant, whose testimony tended to show that a prejudice existed in Tarrant county against appellant. The state called but few witnesses in rebuttal.

Sheriff Mann testified:

"I should judge there are 25,000 qualified jurors in Tarrant county. I think this defendant can secure a fair trial in this county. I think about 40 per cent. of the...