Pierson v. State

• Decision Date: 07 March 1886
• Citation: 17 S.W. 468
• Court: Texas Court of Appeals
• Parties: PIERSON v. STATE.<SMALL><SUP>1</SUP></SMALL>

Page 468

17 S.W. 468

PIERSON v. STATE.¹

Court of Appeals of Texas.

March 7, 1886.

Appeal from district court, Travis county; A. S. WALKER, Judge.

Tom Pierson was convicted of murder in the first degree, and from a sentence of imprisonment for life he appeals. Affirmed.

Walton, Hill & Walton, Sheeks & Sheeks, and Sneed, Pendexter & Burleson, for appellant. J. H. Burts, Asst. Atty. Gen., for the State.

WHITE, P. J.

This is a companion case to that of Pierson v. State, 18 Tex. App. 524. A joint indictment charged appellant and his brother, Bob Pierson, with the murder of J. C. Stovall, and, upon a severance, Bob was tried first, and convicted of murder of the second degree, with a penalty assessed of 30 years in the penitentiary; the conviction in this case being for murder of the first degree, with a life term in the penitentiary affixed by way of punishment.

1. A motion for change of venue was made by defendant in this case, based upon the statutory grounds "that there exists in the county where the prosecution commenced so great a prejudice against him that he cannot obtain a fair and impartial trial." Code Crim. Proc. art. 578, subd. 1. Seven compurgators supported by their affidavit the affidavit made by the defendant. Our statute provides how an application for change of venue may be controverted, as follows: "The credibility of the persons making affidavit for change of venue, or their means of knowledge, may be attacked by the affidavit of a credible person, and the issue thus formed may be tried and determined by the judge, and the application granted or refused, as the law and the facts shall warrant." Id. art.583. With this statute as his authority, the district attorney, by motion, resisted the application, and in support of his motion, and as parts thereof, filed two affidavits, the first being signed by 17 private citizens, and the second by 6 deputy-sheriffs of Travis county. In these affidavits it was alleged "that there does not exist in Travis county, Texas, where the above-stated cause was commenced and is now pending, so great a prejudice against Tom Pierson, the defendant in said cause, that he cannot obtain a fair and impartial trial; that the means of knowledge of defendant's compurgators, [naming them,] being all the persons upon whose affidavits the change of venue is sought in this case by the defendant, are imperfect touching the prejudice alleged to exist in Travis county, Texas, against the defendant, Tom Pierson; and their conclusions that the defendant, Tom Pierson, cannot get a fair and impartial trial in Travis county, is not true in fact, and their means of knowledge, and their information upon the question of a prejudice against Tom Pierson in said county, is not sufficient to authorize the making of said affidavits." Defendant demurred to these controverting affidavits — First, in so far as they tendered an issue of "no prejudice," upon the ground that the law did not authorize nor permit such an issue to be tendered; and, second, because the affidavits, in so far as they attempted to attack the means of knowledge of the compurgators, were too general, were negative only, and averred no affirmative fact. The demurrer was overruled, and the court held that the burden of proof rested upon the state to establish "no prejudice." No error is perceived in the action of the court in overruling the demurrer. In the absence of any statutory declaration as to what shall be the requisites of the controverting affidavits, we are not prepared to say that a general denial, under oath, of the sufficiency of the means of knowledge of the compurgators, would not be such an attack upon their knowledge as would authorize the issue of "prejudice" or "no prejudice," and the introduction of evidence upon that issue. This whole question was ably discussed by Judge HURT in Davis v. State, 19 Tex. App. 201. He says: "But where the affidavit of some credible persons is made, controverting the credibility or the means of knowledge of the compurgators, an issue is formed; and until this be done, there being no issue between the parties, there is nothing to be tried and determined by the judge. But when this is done, upon whom rests the burden of proof? We think upon the applicant,—the defendant. This, however, is a nice question. The affidavit controverting the defendant's supporting affidavit being made, `the issue thus formed shall be tried and determined by the judge, and the application granted or refused, as the law and facts shall warrant.' The judge must try and determine the issue formed in the manner directed in said article, (583,) and this shall be done as the law and facts shall warrant. What facts? Those adduced on the trial of the issue thus formed. And by article 584 the facts adduced on the trial of this issue must, to authorize this court to revise the order refusing a change of venue, be reserved in a bill of exceptions. If the credibility of the supporting affiants is, by the proper affidavits, made the issue, the evidence must be confined to this issue; and so with regard to the means of knowledge, if that be the issue formed. Just what facts are admissible under the last issue (that relating to the means of knowledge of the supporting affiants) presents an exceedingly difficult question. We believe that, under the issue, the defendant would have the right to prove the existence of the prejudice by any witness besides the affidavit of his compurgators; and, on the other hand, the state would have the right to prove that no such prejudice did in fact exist. The supporting affiants could thoroughly be tested, as to their means of knowledge, by either party." Under this exposition of the law and practice in such matters, we see no error in the ruling complained of in this instance. True, the court imposed the burden of proof in this case upon the state, instead of defendant, but of this it cannot be possibly conceived how the defendant could be heard to complain; and for the same reasons as above stated the court did not err in admitting the testimony of witnesses introduced by the state to prove the issue formed, over objections of defendant, as shown by his bills of exceptions upon that point.

2. It is insisted that the court erred in holding the proposed juror Kirby competent, he, the juror, having heard the previous trial of Bob Pierson, upon almost identically the same state of facts. This precise question was determined in Thompson v. State, 19 Tex. App. 594. In that case the proposed juror had heard the previous trials of appellant's co-defendants, and had made up and formed an opinion as to their cases, and thought the result reached in those cases (convictions) was all right; but he stated that he had no opinion of the guilt or innocence of the defendant in that case, and could give the defendant a fair and impartial trial in that case. Acts 19th Leg. p. 91. It was held that "the mere fact that a juror has heard the evidence on a prior trial of the same case will not disqualify him. Parchman v. State, 2 Tex. App. 228; Wade v. State, 12 Tex. App. 358. There must be established in his mind a conclusion of the guilt or innocence of the accused, and this conclusion must be such as will influence him in his verdict. * * * A mere impression, though derived from the evidence, (heard on a former trial,) does not disqualify a juror unless it would influence his finding." Rothschild's Case, 7 Tex. App. 520. And see Acts 19th Leg. p. 91; Code Crim. Proc. art. 636, subd. 13.

3. The venire-man Houghton stated as a reason why he thought he was disqualified that he was one of the compurgators to the defendant's application for a change of venue. He was held competent by the court, and the state accepted him as a juror. The juror protested that, if he was required to act as a juror, and defendant should be acquitted, he would be blamed; whereupon the court stood him aside, without defendant being asked to excuse, accept, or reject him. Defendant excepted to the ruling, whereupon the state's counsel proposed to have the juror brought back and impaneled. He was subsequently, and before the panel was complete, brought back and tendered to defendant, and defendant's counsel was asked if he would have the venireman sworn as a juror. His reply was, "Defendant stands mute," and the court again finally discharged the juror. Under the circumstances, defendant has no ground of complaint. He could have had the...