Poole v. State

• Decision Date: 28 October 1903
• Citation: 76 S.W. 565
• Parties: POOLE v. STATE.
• Court: Texas Court of Criminal Appeals

76 S.W. 565

POOLE v. STATE.

Court of Criminal Appeals of Texas.

October 28, 1903.

Appeal from District Court, Jefferson County; W. H. Pope, Judge.

George H. Poole was convicted of murder, and appeals. Reversed.

Brockman & Kahn and E. T. Branch, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of twenty-five years; hence this appeal.

The theory of the state was that appellant entertained a grudge against deceased because deceased had killed his brother Tom Poole some months before the homicide, and the feud was renewed and intensified on account of the difficulty between defendant and the son of deceased on Saturday night before the homicide; that appellant at the time of the homicide took advantage of deceased, and shot him from the side door of Baker's saloon, deceased at the time standing in the street and making no hostile demonstration against appellant. Appellant's theory was that deceased had repeatedly threatened his life, and on the morning of the homicide cursed and abused him; that the acts and conduct of deceased during the day and preceding the homicide were calculated to and did create fear and apprehension on the part of appellant that he would be attacked by deceased; and that on coming out of the saloon at the time of the homicide he saw deceased standing in front of the door some 15 or 20 feet out in the street, and that deceased immediately made a demonstration as if to draw a pistol, when he shot and killed deceased, and that he was justified in doing so.

Appellant assigns as error the action of the court in overruling his motion for continuance. Among other witnesses, appellant claims particularly that the court should have continued the case on account of the absence of Walter McLean, Walter Austin, Frank Sessions, C. K. Baxter, and Burney Looney, who had been summoned and were not present. As to these witnesses we think the diligence was sufficient. We think the testimony of Walter McLean was material, inasmuch as the state's testimony tended strongly to show that appellant came out of the side door of Baker's saloon, and fired the fatal shot at deceased when deceased was unaware of his presence, and making no demonstration against him. According to appellant's testimony, he was coming out of the front door of Baker's saloon, when he saw deceased standing in front of said door, and that he immediately made a demonstration as if to draw a pistol, when he shot him. He also testified that McLean was with him at the time, and there is other testimony to the same effect. By McLean he proposed to prove, substantially, the same facts as testified by himself. Unquestionably the testimony of this witness was upon the vital issue in the case, and was material to appellant's defense. The testimony of some of the other absent witnesses, according to appellant's statement, would also corroborate him as to what occurred in the difficulty or immediately before. The testimony of some of these witnesses is also material on behalf of appellant to show what Claude Poole and Grover Poole were doing shortly before the homicide, inasmuch as there is testimony in the record showing that they participated in the homicide, and there is some suggestion as to a conspiracy between them and appellant to bring on the difficulty, and this conspiracy was asserted by the state during the progress of the trial. In our opinion, the case should have been continued on account of the absent witnesses, or a new trial should have been granted after the testimony was developed and conviction obtained.

Appellant also assigns as error the action of the court in the impanelment of the jury. The bill shows that four jurors, who had been summoned as special veniremen in the case, were excused by the court on his own motion, over the objection of the defendant, because said jurors stated on voir dire that they had not paid their poll tax for the year 1903, prior to the 1st day of February of said year. Under the statutes and Constitution of this state, the fact that a juror has not paid his poll tax goes to his qualification. However, as we understand the statute, this is made a ground of challenge, and not an absolute disqualification of the juror. Article 676, Code Cr. Proc. 1895, says that no one who is subject to the third, fourth, or fifth clauses of challenge, under article 673, shall be impaneled as a juror. The poll tax requirement is subdivision 1 of said article, and so is not included in either of said subdivisions which absolutely disqualify the juror. And this article, as amended by the last Legislature, which passed an act with reference to juries under the amendment of article 6, § 2, of the Constitution, adopted by the people in 1901, leaves the subject of challenging a juror on the ground that he was not a legal voter exactly as it was before. See amendment to the Constitution (Gen. Laws 27th Leg. p. 322), and amendment relating to qualification of jurors (Acts Sp. Sess. 27th Leg. 1903, p. 15).

There was no error in the action of the court refusing to require the district attorney to make a statement, prior to the introduction of evidence, as to what the state would undertake to prove. Article 697, Code Cr. Proc. 1895; Holsey v. State, 24 Tex. App. 35, 5 S. W. 523.

Nor did the court err in retiring the jury when appellant's attorney was making a rebutting statement, in reply to a statement of the district attorney, who had previously stated, in regard to the admission of certain testimony as to what Grover Poole said or did during the difficulty, that he expected to show a conspiracy existed on the day of the homicide between defendant and Grover and Claude Poole to kill deceased. Of course, both statements should have been presented to the court, and the jury might well have been present at the statement of defendant's counsel as well as when the statement of the district attorney was made. However, it may not have occurred to the court that there was any cause to retire the jury until the question had been raised and presented by counsel for the state. At any rate, we fail to see any prejudice resulted to appellant from the action of the court in this regard.

We do not believe that it was competent to introduce before the jury what Grover Poole may have done and said on Saturday night preceding the homicide, during the difficulty with Stanley Jett, son of deceased, so far as anything said or done by said Grover was said and done in the absence of appellant. If, however, Grover Poole made any threat of further or future violence towards deceased, which was agreed to or participated in by appellant, the same was admissible in evidence.

In our opinion, it was entirely competent for defendant to state the purpose of offering certain evidence as to the details of the killing of Tom Poole by deceased. The court might, in his discretion, have retired the jury while such statement was being made. Appellant complains in this connection because the court refused to permit him to introduce the details of the killing of Tom Poole by deceased, Jett. He contends that this evidence was admissible in order to determine the state of mind of appellant as to deceased, Jett. While the killing of Tom Poole (a brother of appellant) by deceased, Jett, was undoubtedly the origin of the feud which resulted in the homicide for which appellant was here being tried, yet it does not occur to us that the details of said difficulty were admissible in favor of appellant. The general rule is that the details of a former difficulty, even between the same parties, is inadmissible, and much more so where the difficulty is between other parties. Heffington v. State, 41 Tex. Cr. R. 315, 54 S. W. 755, and authorities there cited. Here the former difficulty and homicide was not between the same parties, and we see nothing in that difficulty, or the peculiar circumstances under which it occurred, that would shed light on this homicide. Accordingly we hold that the court did not err in excluding this evidence.

It is complained by appellant in his tenth bill of exceptions that the court committed error in refusing him the privilege of showing certain evidence of a negative character; that is, he states the court permitted the state to prove by R. M. Johnson that he was within a few feet of deceased when the shooting commenced; that the first thing that attracted his attention was a shot from Baker's saloon, and that at that time deceased was standing 12 or 15 feet out in front of said saloon, and that Jett had not fired up to the time he looked at him and after hearing said first shot. Defendant then proposed to show that standing as he was, and not being particularly attracted to Jett until after said first shot, Jett might have made some demonstration, and he not have seen it. The court refused to permit this testimony on the ground that it was of a negative character. We believe that it was competent for appellant to have proven the facts alleged by said witness. Appellant claimed as a part of his defense, and proved by witnesses, that Jett did make some...