Orner v. State
| Decision Date | 05 January 1916 |
| Docket Number | (No. 3674.) |
| Citation | 183 S.W. 1172 |
| Parties | ORNER v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from District Court, El Paso County; Dan M. Jackson, Judge.
Agnes Orner was convicted of murder, and she appeals. Affirmed.
Moore & Harris, Chas. Owen, and T. A. Falvey, all of El Paso, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
Appellant was convicted of the murder of her own daughter by poison, and her punishment assessed at life imprisonment.
This is the second appeal of this case. The first is reported in 65 Tex. Cr. R. 137, 143 S. W. 935. No question which was decided on the first appeal arose on the last trial. After the other reversal the venue was changed from El Paso county, and trials, or mistrials, had in four other counties, to which the case was respectively transferred on change of venue. The venue was at last changed back to El Paso county, and this trial had therein. Before the venue was first changed from El Paso county, this record shows that appellant was properly arraigned and pleaded not guilty.
This trial was begun February 23, and was concluded March 3, 1915. On March 5th, appellant filed a motion for a new trial on various grounds. That motion, as this record shows, did not then in any way claim that the indictment was not read to the jury when the trial began. Later, appellant had leave of the court to file her amended motion for a new trial, and, on March 20, 1915, for the first time set up as one of her grounds for new trial that the indictment was not read, but that a certified copy thereof was read instead. Her amended motion was supported by the affidavits of two of her attorneys, who, in effect, swore that a certified copy, and not the original, was read to the jury. The affidavit of each of her attorneys contains allegations tending to show that they were correct in stating that a certified copy, and not the original, was read. The district attorney, who in connection with an assistant represented the state on the trial, under his official oath denied that the copy was read, and as pointedly alleged that the original was, and not the copy. The assistant district attorney made an affidavit, wherein he swore positively that the original was read, and that the copy was not, and therein he alleged other facts borne out by the record, which tended to support him in his affidavit. The said motion and amended motion and all of said affidavits were heard by the trial judge on March 20, 1915, whereupon he overruled appellant's motion for a new trial on that ground, and every other as well. In addition to this, the judgment specifically states that, when the case was called for trial, the state appeared, as did the defendant in person, and her counsel also being present, when both parties announced ready for trial. It proceeds:
"The indictment was read to the jury, and the defendant, Agnes Orner, in open court pleaded not guilty to the charge contained in the indictment herein."
There can be no question but that from all this the conclusion is certain that the judge was authorized to believe, and must have believed, that the original, and not said copy, was read to the jury, and that it was to the reading of the original, and not the copy, that appellant pleaded not guilty.
The record in some particulars on this point is not clear. In approving appellant's bill on this subject, it appears that the judge did so on March 15th, which was 5 days before said affidavits and the motion for a new trial presenting that question were filed and heard. By his qualification of the bill at that time, the judge states that some time at or about the close of the evidence, something was said by defendant's counsel that the indictment had not been presented, but that in lieu thereof a certified copy of it had been read to the jury. Whereupon he examined all the papers in the cause, which were voluminous, and in said papers was found a certified copy of the indictment, and the said assistant district attorney, representing the state, shortly thereafter presented to him the original indictment, at the time stating to him that it was the original which was read to the jury. He then states:
"The court has no way of determining which instrument was read to the jury, as he does not know."
From this, we take it, it is reasonably certain that the judge at that time, and at the time he made this qualification, had not heard the motion, nor said affidavits, but he states what he did at about the time of the conclusion of the evidence in the case on his own independent investigation at that time. Hence we conclude that his then qualification in no way militates against his action when he heard the motion and all the affidavits, as shown above.
In addition, both the original and a certified copy thereof, under the order of the lower court, were sent up and constitute a part of this record. We have examined and carefully compared the copy with the original, and find there is no particle of difference between them. Every word, letter, and figure in the original is copied precisely in the certified copy. If it had been the copy instead of the original which was read, no possible injury occurred to appellant thereby or could have occurred. If it be true that the copy, and not the original, was read, it was all done in her presence, and must have been with her knowledge, and it was also in the presence of her attorneys, and must have been, and was, if they are correct, within their knowledge at the very time it occurred. Neither she nor her attorneys, or any of them, at that time, or at any other time, until the close of the evidence, at least intimated or suggested that it was the copy and not the original which was read. She, and neither of them, objected to it at all in any way until after the trial was concluded, and in her amended motion for new trial, which was filed some 17 days after the verdict and judgment. The slightest intimation of this mistake, if it was a mistake, to the court, or the state's attorney, at the time would have righted the matter immediately. Under the circumstances, we think that her action and her attorneys' action, or rather their inaction, at the time was a waiver of the reading of the original, if, as a matter of fact, the copy instead was read. That she could waive it is both statutory (article 22, C. C. P.), and has repeatedly been decided by this court. Barbee v. State, 32 Tex. Cr. R. 170, 22 S. W. 402; Essary v. State, 53 Tex. Cr. R. 603, 111 S. W. 927; Davis v. State, 70 Tex. Cr. R. 563, 158 S. W. 283. See, also, Johnson v. State, 171 S. W. 1128; Coffman v. State, 73 Tex. Cr. R. 295, 165 S. W. 939.
On the doctrine of the waiver, Mr. Bishop in his New Criminal Procedure (volume 1, § 117), says:
In section 119 he says:
While introducing the evidence, each side introduced the testimony of different witnesses, which was given by them in former trials and taken down in writing. In other words, these witnesses were not on the stand, but, instead, their testimony as transcribed was introduced. Among these was Mr. Van Horn. After the jury had been charged and retired, they returned in open court, whether at different times or at the same time is not made certain, but, at any rate, stated in writing that they did not remember the names of these several witnesses and wanted their testimony read. They mentioned several of these witnesses. Among them, they wanted Van Horn's, and asked the court:
"Did Mr. Van Horn testify at Pecos, Tex., in the trial of Agnes Orner that he (Van Horn) heard Mrs. Orner tell Mrs. Archer that she (Mrs. Orner) killed Lillie Orner?"
Over the appellant's objection, the court permitted the testimony of said Van Horn to then be read, which was:
"
Appellant objected that the jury had not disagreed as to Van Horn's testimony, but had forgotten his testimony, and that the reading of it again would prejudice the jury against her and give undue emphasis to his testimony. We think the questions by the jury to the judge sufficiently, if they do not clearly, show, when properly construed, that the jury did disagree as to the statement of this witness, and it was the duty of the court, under the circumstances, in the proper and due administration of the law under article 755, C. C. P., to have read, as he did, said testimony of Van Horn. It is literally his testimony as introduced on the trial. No question is made of this. In Clark v. State, 28 Tex. App. 196, 12 S. W. 729, 19 Am. St. Rep. 817, it appeared that the trial judge permitted the...
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