Oliver v. State

• Decision Date: 23 April 1913
• Citation: 159 S.W. 235
• Parties: OLIVER v. STATE.
• Court: Texas Court of Criminal Appeals

159 S.W. 235

OLIVER v. STATE.

Court of Criminal Appeals of Texas.

April 23, 1913.

Rehearing Denied June 4, 1913.

Appeal from District Court, Grayson County; J. M. Pearson, Judge.

Carl Oliver was convicted of murder in the first degree, and he appeals. Affirmed.

J. T. Cunningham and A. L. Lewis, both of Sherman, for appellant. Wilkinson & Wilkinson, of Mt. Vernon, and C. E. Lane, Asst. Atty. Gen., for the State.

PRENDERGAST, J.

Appellant was convicted of murder in the first degree and the death penalty inflicted.

The contention and theory of the state was that the offense was murder in the first degree; that it was clearly upon express malice; and that the appellant was lying in wait; in effect, that it was an assassination. Among others, it was the theory and contention of the appellant that the killing was justifiable in that the appellant at the time believed that the deceased and his wife, who were together, were then going to a place for the purpose of having sexual intercourse, and that the killing was in self-defense. At most, he contends that it was only manslaughter. The evidence was ample, full, and sufficient to establish the state's contention of murder in the first degree.

Appellant made a motion to quash the indictment, because, in the selection of the grand jury which indicted him, an unlawful discrimination was made against him because of race prejudice; that in selecting the grand jurors the commissioners excluded negroes from the grand jury because of their race and the prejudice against their race. The judge heard much evidence on this motion. He heard all the witnesses orally, saw their manner of testifying and the manner of their examination and cross-examination, and, even if there was a conflict in the evidence, he was in a much better position and much better qualified than the judges of this court, who have that testimony in a statement of facts merely written down, can possibly be to determine such question of fact.

The killing occurred on the night of June 29, 1910, about or just before 10 o'clock. The term of the district court at which the jury commissioners were appointed to select grand jurors for the October term, 1910, was held, and they made the selections at the April term, 1910, long before this killing occurred. Of course, their selection and action could not have contemplated the indictment of the appellant. The indictment was found by the grand jury of Franklin county, in which the killing occurred, at the October term, 1910, on October 17th, the day on which the term began, and was properly returned in and filed in the court on that day. The appellant was then under arrest, held in the jail of some other county, not shown, because of the fear of mob violence if he had been attempted to be kept in the Franklin county jail. Some time during October 19, 1910, he was quietly taken from where he was held into the open court of Franklin county. The judgment of the district court of Franklin county, of date October 19, 1910, among other things, after stating the said cause, number, court, and date, is: "The above-entitled and numbered cause having this day been called for trial, appeared the parties, the state by her district attorney, and the defendant in person and by attorney; and, the defendant's preliminary motions, exceptions, and special pleas filed herein having been heard and disposed of by the court, the defendant was duly arraigned and required to plead to the indictment herein, whereupon the defendant, Carl Oliver, in person, in open court, pleaded `not guilty,' to said indictment, which plea was then and there entered upon the minutes of said court. And the judge presiding being satisfied that a trial alike fair and impartial to the accused and the state cannot be had in this Franklin county, on account of the state of public feeling against defendant. If tried here he would be lynched. Since his arrest he has been kept away from here to keep him from being lynched. He is charged with killing a white man. He was quietly slipped in here last night to be present and is immediately taken away to prevent a lynching. The lynching cannot be prevented by a change of venue to any county in this judicial district, nor to any county to an adjoining district; thereupon he (the said judge) of his own motion now here orders that the venue of said case be changed to Grayson county, Tex." The order then continues, properly changing the venue from Franklin to Grayson county and required that he be delivered to the sheriff of Grayson county immediately.

Our law authorizes the judge to change the venue to any county in the state on his own motion or judgment. C. C. P. art. 626. It also says: "But, in all cases before a change of venue is ordered, all motions to set aside the indictment, and all special pleas and exceptions which are to be determined by the judge, and which have been filed, shall be disposed of by the court, and, if overruled, the plea of not guilty entered" before the venue is ordered changed. Article 630, C. C. P. Notwithstanding this, and the statement above quoted in the order changing the venue, after the case had reached and been properly filed in the district court of Grayson county, the appellant, on November 21, 1910, in the district court of Grayson county, filed his motion to quash the indictment, alleging of the race prejudice above stated And, as stated above, the court on November 21, 1910, heard the said motion and all the evidence thereon and then overruled the same, to which appellant excepted. Appellant's motion to quash on said ground was not sworn to, and it did not allege that appellant was a negro. It is not only necessary for the motion to allege, when this is the ground to quash the indictment, that the appellant was a negro, but to prove it, as has been held by this court and many times by the United States Supreme Court. McCline v. State, 141 S. W. 982, and authorities there cited. The state by proper proceedings denied all of appellant's allegations in said motion and contested it in every way.

We have carefully read and considered the whole statement of facts and evidence heard by the court on this motion. Without reciting it, we are clearly of the opinion that not only did the appellant fail to prove that there was any race prejudice in the selection of the grand jury that indicted him but that the state proved as a fact that there was no prejudice. The court did not err in overruling this motion to quash the indictment. Villa v. State, 63 Tex. Cr. R. 540, 141 S. W. 104.

In this connection appellant has quite a lengthy bill giving the questions and answers to the several witnesses on this hearing of the motion to quash, wherein he complains that the court erred in sustaining the state's objections to various questions to the several witnesses, claiming that the appellant should be given the widest latitude in attempting to develop the fact of race prejudice as claimed by him. We have carefully considered his bill on this subject. In our opinion the court's action in every instance was correct. Wherever he claimed in said bill that the court improperly sustained the state's objections to his questions, it fails to state what the answer of the witness would have been. We think neither of his objections are tenable. In our opinion not only the bill fails to show any error, but taking that alone it shows that he was given the widest and greatest latitude that could reasonably have been claimed, and that the court, by none of the actions complained of, prevented him from in any and every proper way developing the facts on the question involved. Again, going to the evidence itself on the subject, it shows that the court gave him the widest latitude that could reasonably be claimed, and that from the several witnesses he had the opportunity to develop and prove, on the point at issue, every fact that was or could have been pertinent to the question under investigation.

The case was called for trial on June 10, 1912. The appellant then filed his motion for a fourth continuance on two grounds: First, that he was too sick to then undergo a trial; second, on account of the absence of a witness Nellie Harp, who resided in Franklin county. The court not only heard evidence on this motion for a continuance but also again heard evidence on that ground when the motion for new trial was heard. The state by proper pleading denied and contested both appellant's motion to continue at the time it was filed and heard and also the motion for new trial at the time it was heard and acted upon. We have carefully read and considered all of this evidence. As to his first ground, the evidence as a whole shows that, while appellant was afflicted with some syphilitic disease, he was not too unwell from that cause, or any other, to then undergo the trial, and that he did then undergo the trial without any breakdown, or without resulting in any such state of facts as to show that he was too unwell to then try the case. In fact, the evidence authorized the judge to believe, as he did, that the appellant was in such condition as justified the court to then require him to try the case. As to the second ground, neither the application nor the record shows any diligence whatever to procure the attendance of the said Nellie Harp. Besides this, on this ground, the state showed that there was then in attendance numerous witnesses who knew and could have testified fully and completely to everything he claimed he could prove by the absent witness. Again, he had ample time, after his motion for new trial was overruled, to have procured the attendance of said witness if he had used any diligence whatever to secure her attendance.

By another bill it is shown that Judge Peck was the judge of the district court of Grayson county wherein this case was pending and tried; that he was disqualified to try the case; that it was agreed between him and Judge Pearson that...