Parker v. State

• Decision Date: 30 May 1917
• Docket Number: (No. 4383.)
• Parties: PARKER v. STATE.
• Court: Texas Court of Criminal Appeals

196 S.W. 537

PARKER v. STATE.

(No. 4383.)

Court of Criminal Appeals of Texas.

May 30, 1917.

State's Rehearing Denied June 29, 1917.

Appeal from District Court, Van Zandt County; R. M. Smith, Judge.

R. F. Parker was convicted of murder, and appeals. Reversed and remanded.

Wynne, Wynne & Gilmore, of Wills Point, for appellant. Earl M. Greer, Co. Atty., C. L. Stanford, and M. G. Sanders, all of Canton, and E. B. Hendricks, Asst. Atty. Gen., for the State.

PRENDERGAST, J.

Appellant was convicted of murder, and his punishment assessed at 30 years in the penitentiary.

This cause was formerly before this court on appeal from the decision of the lower court denying bail, and this court affirmed it. It is reported in 188 S. W. 983.

Appellant made a motion for a change of venue on both grounds authorized by the statute. Article 628, C. C. P. His brother and two of his warm personal friends were his compurgators. The state contested his application by the affidavit of the district and county attorneys. The contest was based, as shown by their affidavits, upon an attack of the means of knowledge of said compurgators. This was expressly authorized by the statute. Article 633, C. C. P. It applied to both grounds of his motion. This contesting affidavit did not attack the credibility of appellant's compurgators. This was unnecessary under the plain provisions of the statute, as the contest which was filed applied to both grounds of his motion. Lemons v. State, 59 Tex. Cr. R. 299, 128 S. W. 416, and authorities therein cited; Smith v. State, 21 Tex. App. 303, 17 S. W. 471, and authorities therein cited. The court heard testimony on this matter. Appellant introduced some 86 witnesses who testified. Some two days, perhaps more, were consumed in hearing their testimony. It took at least 106 pages of typewritten matter in the record to record their testimony. It is, of course, out of the question to undertake to give this testimony in detail. It is unnecessary. From it the trial judge unquestionably was authorized to find, as he must have done, that this testimony showed that there was no mob or attempt at any time by any persons to mob appellant, or in any way mistreat him because of his killing the deceased, or for any other cause. It showed that Van Zandt county was a large county, rather densely populated; that there were a large number of towns scattered all over the county, perhaps 30; that the largest of these towns had a population of about 2,500, another 1,500, one or two others some 600, and the others of less population; that there were about 7,000 qualified jurors in the whole county. The killing occurred in the county seat, Canton, which had a population of only about 600 all told, men, women, and children. The whole of this testimony clearly authorized the court to believe and find, if it did not require him to find, that neither ground of appellant's motion was true. On the contrary, it clearly justified him to believe and find that there was nothing to prevent him from obtaining a fair and impartial trial in that county and from obtaining a qualified jury of fair and impartial jurors.

The settled rule is that unless it is clear that the trial court has abused his judicial discretion, his action in refusing a change of venue will not require a reversal. Tubb v. State, 55 Tex. Cr. R. 606, 117 S. W. 858; Bohannon v. State, 14 Tex. App. 271; Cox v. State, 8 Tex. App. 254, 34 Am. Rep. 746; Grissom v. State, 8 Tex. App. 386; Clampitt v. State, 9 Tex. App. 27; Martin v. State, 21 Tex. App. 1, 17 S. W. 430; Magee v. State, 14 Tex. App. 366; Dupree v. State, 2 Tex. App. 613; Noland v. State, 3 Tex. App. 598; Grissom v. State, 4 Tex. App. 374. As said by this court, through Judge Ramsey, in the Tubb Case, supra:

"Of necessity, in respect to a question of this kind, much ought to be left to the discretion and sound judgment of the court trying the case, and in no case should the judgment of conviction be set aside on account of the action of the trial court in refusing a change of venue, unless it is clear that such court has abused his discretion. This is the doctrine laid down in almost the precise terms above stated, by Judge Hurt, in the case of Gaines v. State, 37 S. W. 331" (citing some of the cases cited above, and others).

The court's action on this point shows no error.

It is unnecessary to give the testimony. It is sufficient to say that from the state's viewpoint it was amply sufficient to show that appellant was guilty of murder. It also raised the issue of self-defense, and perhaps also of self-defense because of threats. Perhaps it raised manslaughter. It also raised an issue of appellant provoking the difficulty at the time at which appellant killed the deceased. The court in his charge submitted all of these issues, and in charges that are substantially correct, although appellant attacks some of them in some particulars.

It appears that deceased had, in substance, told that appellant was caught out a few nights before the killing with a woman, Mrs. Carpenter, under such circumstances as to show that he had had sexual intercourse with her on that occasion. Appellant had heard of deceased circulating this report, and claims that he went to him to see him about it, and it was about this matter that the immediate killing occurred. The state proved by said woman that appellant was out with her a few nights before the killing, and at that time did have sexual intercourse with her. Appellant objected to this testimony as irrelevant and immaterial, and that it had nothing to do with the crime for which he was on trial. The court in qualifying appellant's bill on the subject states that it was the alleged circulation of this report by the deceased which led to the killing. This testimony was clearly admissible.

By his next bill, No. 6, he also for the same reasons objected to the testimony of Mr. Downing, to...