Porter v. State

• Decision Date: 26 June 1918
• Docket Number: (No. 4833.)
• Citation: 215 S.W. 201
• Parties: PORTER v. STATE.
• Court: Texas Court of Criminal Appeals

Page 201

215 S.W. 201

PORTER v. STATE.

(No. 4833.)

Court of Criminal Appeals of Texas.

June 26, 1918.

On Motion for Rehearing, October 22, 1919.

Appeal from District Court, Bell County; F. M. Spann, Judge.

Willie Porter was convicted of murder, and appeals. Affirmed.

De Witt Bowmer, of Temple, and J. B. Hubbard and G. M. Felts, both of Belton, and W. W. Hair, of Temple, for appellant.

E. B. Hendricks, Asst. Atty. Gen., for the State.

PRENDERGAST, J.

Appellant was convicted of the murder of Miss Emma Staley, and his punishment assessed at life imprisonment.

The commencement of the indictment is: "In the name and by the authority of the state of Texas." This is in literal compliance with the statute. Article 451, C. C. P. The Constitution (article 5, § 12) is: "* * * The style of all writs and process shall be, `the state of Texas.' All prosecutions shall be carried on in the name and by authority of the state of Texas, and shall conclude, `against the peace and dignity of the state.'" The word "the" is not contained in the language of the Constitution before the word "authority," as it is and required by the statute. Said language in the Constitution, "in the name and by authority of the state of Texas," is not in quotation. The words in the statute are in quotation; nor are said words in quotation as are the words required in the style of all writs and process, and in the conclusion of an indictment.

In Moss v. State, 60 Tex. Cr. R. 271, 131 S. W. 1088, a motion to quash the indictment therein because the word "of" was inserted in the language "in the name of and by authority of the state of Texas," the motion was held to have been correctly overruled. In that case the word "the" was also used before the word "authority," just as in this indictment. What was said and held in said Moss Case as to the insertion of the word "of" is specially applicable herein as to the word "the." The court correctly held the indictment herein was not invalid because of the insertion of said word "the," and in overruling appellant's motion to quash on that ground.

After the other usual allegations, the indictment averred that appellant with malice aforethought did kill and murder Emma Staley "in some way or manner, and by some means, instruments and weapons to the grand jurors unknown." Appellant's motion to quash because the language just quoted did not allege the means whereby the alleged murder was committed was correctly overruled. Walker v. State, 14 Tex. App. 627; Sheppard v. State, 17 Tex. App. 74. In the Walker Case this identical language was used, and the indictment held valid. The court said:

"It is well settled that it is sufficient to allege that the murder was committed `in some way or manner, and by some means, instruments, and weapons to the jurors unknown.' Commonwealth v. Webster, 5 Cushing's Rep. 295 ; State v. Wood, 53 N. H. 484; State v. Burke, 54 N. H. 92; State v. Williams, 7 Jones [52 N. C.] 446 ; People v. Cronin, 34 Cal. 191; People v. Martin, 47 Cal. 96; Commonwealth v. Martin, 125 Mass. 394; 1 Whar. Proc. 114; Whar. Cr. Ev. § 93; 1 Arch. Cr. Prac. and Pl. 787, note 1."

When the clerk was drawing the names of the veniremen, in the presence and under the direction of the judge, appellant claimed his attorney had the right to be present and to make and take a list of the names as drawn, which was denied by the judge. He cites only article 647, White's Ann. C. C. P. as authority, because it prescribed that said drawing shall be "in open court." This article, as contained in Judge White's book, was afterwards amended by Act of 1907, p. 271, and said words "in open court" were omitted (said article is now 660 in the C. C. P.) thereby clearly showing the Legislature intended to change the statute, and did change it, so that the drawing could be done by the clerk in the presence of the judge alone, and that this did not have to be done "in open court." Appellant's attorney had no right to be present and take the names as drawn. Oliver v. State, 70 Tex. Cr. R. 147, 159 S. W. 235, and cases there cited. The law prescribes the names shall be furnished him (article 671, C. C. P.) by service of a writ on him giving the names of the veniremen served.

The writ of venire for the 125 drawn veniremen included these four names. viz. O. L. Lindeman, A. E. Pagel, C. C. Lancaster, and O. F. Winkler. The sheriff's return showed he had served them. In copying the names to serve on appellant these were given as G. L. Linderman, A. S. Pagel, C. C. Lancester and C. F. Winkler. Thereupon appellant moved the court to quash the service of the writ on him, which was overruled. The court, in approving the bill, qualified it by stating that these four persons—whichever were their correct names—were excused by the court, that appellant was not required to, and did not, pass on either of them, nor use his challenge on either, that he made no objection to their being so excused, nor did he ask for an attachment for either of them under either name, and that he did not exhaust his challenges.

Judge White in his Ann. C. C. P. § 721, says:

"Mere discrepancies in some of the names as stated in the copy and the original will be immaterial, where it appears that the parties named did not serve on the trial, and defendant did not exhaust his peremptory challenges. Bowen v. State, 3 Tex. Cr. App. 617. If there is a variance between the name set out in the copy and the original, the proper practice is to stand such veniremen aside. Mitchell v. State, 36 Tex. Cr. R. 278 [33 S. W. 367, 36 S. W. 456]; Hudson v. State, 28 Tex. Cr. R. 323 ; Thompson v. State, 19 Tex. Cr. App. 593; Swofford v. State, 3 Tex. Cr. App. 76; Bowen v. State, 3 Tex. Cr. App. 617." Melton v. State, 71 Tex. Cr. R. 135, 158 S. W. 550.

The court's action herein was correct.

The state's testimony showed that deceased left her home on the night of March 12th, and in some distance therefrom met appellant near a strawstack, and left with him going in a certain direction which he pointed, and which it seems was towards where her dead body was found in the river on March 21st. On March 22d Mr. Durrett went on the ground at the haystack, and again on March 26th he and Mr. Smith, the sheriff, went there and hunted for tracks leading away from there. They each were permitted, over appellant's objection, to testify in substance that they found tracks, at different places, made by small shoes with sharp heels, the toes pointing in a southerly, and the heels in a northerly, direction (which was from towards said haystack, and towards where her body was found). The ground had been rained on, a light shower, since the tracks were made. The shoes from deceased's feet were then shown the witness and Mr. Durrett testified the heel part of the tracks appeared to have been made with a small heel, and, as near as he could judge, about the size of the heel of the shoe. The sheriff's evidence was to the same effect.

This evidence was admissible. The testimony to establish guilt was wholly circumstantial. When this is the case it has always been held, "the mind seeks to explore every possible source from which any light, however feeble, may be derived" (Noftsinger v. State, 7 Tex. App. 322; Early v. State, 9 Tex. App. 485; Simms v. State, 10 Tex. Or. App. 165; Bailey v. State, 65 Tex. Cr. R. 1, 144 S. W. 1005; Belcher v. State, 72 Tex. Cr. R. 646, 161 S. W. 459; Durfee v. State, 73 Tex. Cr. R. 165, 165 S. W. 182; Archer v. State, 74 Tex. Cr. R. 524, 168 S. W. 857; Hand v. State, 77 Tex. Cr. R. 623, 179 S. W. 1156); and "the command of the law is turn on the light," (Preston v. State, 8 Tex. App. 33; Harris v. State, 31 Tex. Cr. R. 415, 20 S. W. 916).

The writ, with the names of the veniremen, was served on appellant about 5 o'clock June 25th. The case was set for trial June 27th. Appellant made a motion to postpone the trial for one, two, or three days in order to give him and his attorneys additional time to investigate these veniremen. The motion was of considerable length, and set up many matters along this line. The court heard evidence on it and after doing so correctly overruled it. The judge, allowing the bill, qualified it by stating that Mr. Hair, one of appellant's attorneys, had lived in said county 50 years, had practiced law therein for 25 or 30 years and had been county and district attorney therein; that Mr. Hubbard, another one of his attorneys, had resided in said county for about 12 years, and practiced law therein during that time; that Mr. Felts, another one of appellant's attorneys, had resided in the county some 20 or 25 years, during most of which time he had practiced law therein and had been county judge; that the other attorney of appellant, Mr. Bowmer, had practiced law in the county for 5 or 6 years, and had been district attorney; "and from the evidence adduced in the case the court found that all of these attorneys were reasonably well acquainted with the venire, and that they did not all know the same veniremen, but the defendant had the benefit of the knowledge of four attorneys." And, further, that he did not exhaust his peremptory challenges, having two left when the jury was completed.

The statute (article 672, C. C. P.) expressly provides that in this character of case one day's service of a copy of names of persons summoned under the special venire shall be sufficient. In this case he practically had two days and was unusually well equipped with experienced attorneys who had more than ordinary knowledge of the persons summoned. The court committed no error in overruling this motion.

The state introduced testimony showing that appellant for some 2 years had been having sexual intercourse with the deceased, and that she was pregnant by him at the time of her death, with the fetus five or six months old. Appellant had married another woman on Nov. 22, 1916. The state introduced other testimony to the effect that appellant had seen and had...