Roquemore v. State

• Decision Date: 15 December 1909
• Citation: 129 S.W. 1120
• Parties: ROQUEMORE v. STATE.
• Court: Texas Court of Criminal Appeals

129 S.W. 1120

ROQUEMORE v. STATE.

Court of Criminal Appeals of Texas.

December 15, 1909.

On Motion for Rehearing, June 15, 1910.

Appeal from District Court, Angelina County; James I. Perkins, Judge.

Joe Bug Roquemore was convicted of murder in the second degree, and he appeals. Reversed and remanded.

Geo. S. King and Beeman Strong, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.

BROOKS, J.

Appellant was convicted of murder in the second degree, and his punishment assessed at 15 years' confinement in the penitentiary. This is the second appeal of this case. The former appeal will be found in 54 Tex. Cr. R. 592, 114 S. W. 140. The facts in this case are, in substance, stated in the former opinion.

1. Appellant presented an application for continuance. The bill presenting the matter contains this qualification: "The witnesses named in this application are two of the same embraced in defendant's application for continuance at former trial in May, 1908. It was then shown that they had never been served with process, but it was claimed that they were only temporarily absent and would be home in a few days. The former judgment of conviction was reversed in December, 1908, and no process for said witnesses was applied for until in May, 1909, and only a few days before the day set for the trial of this case. After this conviction and on the hearing of the motion for new trial, some time after the conviction, no further diligence was shown and no effort to show the whereabouts of said witnesses, or that return had been made of the process for Weaver. In short, all the circumstances show a want of diligence on this trial and convince me of the correctness of my conclusion, reached on the former trial, that these witnesses, and at least one other named in the former application and omitted in this, were absent by the procurement and consent of the defendant." In addition to the explanation of the court, it might be added, in the light of this record, we do not think there is any probable reason to believe the attendance of the witnesses could be secured at another trial of this case. Furthermore the record throws great doubt upon the probable truth of their testimony.

2. Bill of exceptions No. 2 shows the state placed the stepfather of deceased on the stand and proved deceased was dead, and appellant, upon cross-examination, among other things, propounded to said witness the following question, to wit: "Why had deceased changed his name from that of Tom Gauf to that of Tom Reynolds?" The object of said question, on the part of the defense, was to show deceased was a fugitive from justice from the state of Louisiana, where he had been known as Tom Gauf, and where he was charged with a felony, and that upon coming to Texas had changed his name from Tom Gauf to Tom Reynolds. This testimony was not admissible for any purpose, and the court did not err in excluding same. The fact that deceased changed his name on account of committing a felony in another state could not throw any light upon the transaction here being inquired about.

3. Bill of exceptions No. 3 shows that Sue Goodwin, state's witness, was, over appellant's objection, permitted to testify that she, Hollie Thompson, Florence Davis, Bud and Felix Weaver, and a number of others went fishing on Sunday afternoon prior to the difficulty in which deceased lost his life, and that the defendant was in the crowd, and that some one in the crowd had a bottle of whisky. Appellant objected to the testimony on the ground that it in no way tended to explain or tended to throw any light on the transaction out of which the difficulty between appellant and deceased grew, and was calculated to prejudice the minds of the jury. The whereabouts of the parties, both appellant and deceased, just prior to the difficulty is germane often in the elucidation of the difficulty itself, but we do not see how this testimony was admissible in the light of this record, but still we do not think it sufficiently important to justify a reversal of the case.

4. Bill of exceptions No. 4 shows the state was permitted, over appellant's objection, to prove by Dr. Tindal that in his opinion the relative positions of defendant and deceased at the time of the first difficulty in the house was that deceased was slightly to the right of defendant, and that the shot that struck the deceased's arm entered from the front or fore part of the arm, and made an exit to the rear or back. Appellant objected to this testimony on the ground that same was a conclusion of the witness, and a matter about which he could not testify as an expert. The court approves the bill by stating that same was allowed with the same qualification as on bill of exceptions No. 3. The qualification placed on bill No. 3 is as follows: "Allowed as qualified by other facts in connection as shown by statement of facts." That an expert can swear as to how the bullet entered the arm, there can be no cavil. This is, in substance, the testimony of the witness here. It is true, it was not proper for him to say in what relative positions the parties were standing, but still he could testify as an expert as to where the bullet entered. This demonstrates that if the bullet entered in front, appellant must have been standing in front of deceased. The witness' testimony, as shown by the statement of facts, shows that he merely testified as to the location of the wounds.

5. Bill of exceptions No. 6 shows the state was permitted, over appellant's objection, to reproduce and read to the jury the testimony of Dr. A. M. Denman, given upon the former trial, that deceased stated to him just prior to his death, and before he made a written statement as to the difficulty, that he was conscious of approaching death, and knew that he was going to die; said testimony being offered for the purpose of laying a predicate for the introduction of the dying declarations of deceased as to the facts of the difficulty. Appellant, at the time said testimony was offered to be reproduced, objected for the reason that said Dr. A. M. Denman was dead, and further, because the party making the legal, dying statement was also dead, and the state was allowed and permitted to tack one exception to another exception in order to introduce the legal dying declaration, both parties being dead at the time, and was a substantial denial to the defendant of his constitutional and legal right to be confronted by the witnesses who were to testify against him. This question has been thoroughly settled by this court. The testimony of a dead witness is admissible, and does not violate the constitutional inhibition against confronting defendant with the testimony. Dr. Denman testified to facts laying the predicate for the introduction of the dying declarations; his testimony showing the predicate was equally admissible with the dying declaration itself. This predicate had been laid in the previous trial by Dr. Denman in open court, and thereby the appellant was confronted with said statement. He was also, as stated, confronted with the dying declaration or statement of deceased. All of this testimony was admissible.

6. Bill of exceptions No. 7 objects to the court stenographer reading from the record which he prepared on the former appeal of this cause, which witness swore was a copy of the deceased's written statement as to the transaction in which he was shot. The predicate for the introduction of all this testimony was clearly laid as shown by the record in this court.

7. The eleventh ground of the motion for a new trial complains of the following portion of the court's charge: "Or if you so find that such killing was unlawful and not justified as in self-defense, but you have a reasonable doubt as to whether or not same was committed with malice, you will find the defendant guilty of manslaughter," etc. To support appellant's contention he cites us to the cases of Turner v. State, 41 Tex. Cr. R. 329, 54 S. W. 579, and Childs v. State, 35 Tex. Cr. R. 573, 34 S. W. 939. The Turner opinion is authority for the statement that there is malice in manslaughter, but this court has overruled said opinion in various decisions; and furthermore, there is no authority for holding that there is legal malice in manslaughter. This seems to be the criticism of appellant upon the charge. The excerpt taken in connection with the remainder of the charge is correct, and it has been inferentially approved by this court in the previous decision in this case.

We have carefully read the court's charge in the light of all the criticisms urged by appellant, and must say, taken as a whole, there is nothing in same that requires a reversal of this case.

Finding no error in the record, the judgment is affirmed.

On Motion for Rehearing.

DAVIDSON,...