Polk v. State

• Decision Date: 04 March 1896
• Citation: 34 S.W. 633
• Parties: POLK et al. v. STATE.
• Court: Texas Court of Criminal Appeals

34 S.W. 633

POLK et al. v. STATE.

Court of Criminal Appeals of Texas.

March 4, 1896.

Appeal from district court, Navarro county; Rufus Hardy, Judge.

Austin Polk and Biz Watts appeal from a conviction for murder. Affirmed.

Lee & Scott, for appellants. Mann Trice, for the State.

HURT, P. J.

Conviction for murder in the first degree, and punishment assessed at confinement in the penitentiary for life. The indictment in this case was presented April 7, 1893. This case was called for trial on the 5th day of November, 1895, but the trial did not begin until the 6th day of November, 1895. Appellants moved the court to continue the cause for the want of the testimony of a number of witnesses, setting forth the evidence expected to be obtained from said witnesses. In the application they state that said witnesses had all been subpœnaed on the 20th day of April, 1893, and that at a former term of court all of said witnesses were present. For Navarro county, there are three terms of the district court for each year. The first term begins on the first Monday in April; the second, on the first Monday in July; and the third, the fourth Monday after the third Monday in September. At the time this indictment was presented the act of 1889 was in force. When this case was called for trial the act of 1893 was in force, which act went into effect the first Monday in June, 1893. As above stated, the bill of indictment was presented on the 7th day of April, 1893. The June term of 1893, the August term of 1893, the January term of 1894, and the June term of 1894, and three other terms of the court, intervened between the filing of the bill and the term at which the cause was tried. Now, it will be noted that the application states that the witnesses had been subpœnaed on the 20th day of April, 1893, and were present at a former term of the court. The term at which they were present is not stated. It may have been the June term, 1893, or some other. We are not informed. This demonstrates that there was no diligence used to obtain the presence of these witnesses, and disposes of the motion to continue the cause.

Appellant requested the court to instruct the jury "that the state must, in all cases, identify the defendant or defendants, as the case may be, and point them out to the jury as the parties who committed the offense that is under investigation." There is no question but what the appellants in this case were the parties about whom all of the witnesses were speaking when they were alluded to. We presume that appellants desired the court to instruct the jury that they must believe, or that it must be proved beyond a reasonable doubt, that these defendants were the parties engaged in the shooting, or in the murder. When we turn to the charge of the court, we find that by the fifth paragraph thereof the jury were required to believe "beyond a reasonable doubt, from the evidence, that the defendants, or either of them, * * * in Navarro county, on or about the 20th day of January, 1893, did unlawfully, and with malice aforethought, shoot with a pistol, and kill, Rufus Jameson." This required the proof to show that these parties were the parties who killed the...