Ryan v. State

• Decision Date: 15 November 1911
• Citation: 142 S.W. 878
• Parties: RYAN v. STATE.
• Court: Texas Court of Criminal Appeals

142 S.W. 878

RYAN v. STATE.

Court of Criminal Appeals of Texas.

November 15, 1911.

Rehearing Denied January 17, 1912.

Appeal from District Court, Matagorda County; Wells Thompson, Judge.

Jim Ryan was convicted of murder, and he appeals. Affirmed.

Gaines & Corbett and E. T. Branch, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

The grand jury of Matagorda county indicted W. W. Lawrence and appellant jointly, charging them with murder. There was a severance, and appellant placed on trial first. Appellant, in his first bill of exceptions, complains that the court granted a severance when no affidavit had been filed, asking that a severance be granted. Article 706 of the Code of Criminal Procedure provides: "When two or more defendants are jointly prosecuted they may sever in the trial upon the request of either." The bill of exceptions shows that Lawrence requested a severance, and the court did not err in granting it. An affidavit is only required when one of them desires the evidence of the other, and desires that he be first tried. Then an affidavit must be filed, stating that such defendant verily believes there is not sufficient evidence against his codefendant to secure his conviction, when jointly indicted, and a severance is requested, and no affidavit filed, it is a matter within the discretion of the court as to which shall be first tried.

Neither was there error in permitting W. W. Lawrence, codefendant, to remain in the courtroom. He had not been summoned as a witness, and under the law he could not be a witness for the defendant. Had the state sought to use Lawrence as a witness, a different question would be presented, but, as the state did not seek to use him as a witness, and the defendant could not, under the law, do so, the court did not err in permitting him to remain in the courtroom.

The court did not err in refusing to permit Lawrence to testify at the instance of defendant; nor did it err in refusing to permit the evidence of Lawrence, taken at the examining trial, to be introduced in evidence. Article 771 of the Code of Criminal Procedure provides: "Persons charged as principals, accomplices or accessories, whether in the same indictment or different indictments, cannot be introduced as witnesses for one another." Lawrence and appellant were jointly indicted for murder, and neither was a competent witness for the other. Barnes v. State, 28 Tex. App. 29, 11 S. W. 679; Carrico v. State, 36 Tex. Cr. R. 618, 38 S. W. 37; Woods v. State, 26 Tex. App. 490, 10 S. W. 108.

Neither was there any error in not permitting the sheriff to testify what appellant's codefendant had told him in reference to the way the killing occurred, and statements made in regard to appellant's conduct. A codefendant, neither directly nor indirectly, can be a witness for a defendant.

The state introduced the following statement as the dying declarations of the deceased: "I, R. H. Buchheit, believing that I am going to die, make this my dying statement. This evening, about 6 o'clock, I phoned up to Mr. Will Lawrence that I was going to quit. He said, `No; you ain't either' — and we never said no more. About 8 o'clock, he rang me up, and said: `You have got to leave the field. Go down and get your check.' I said: `No; I won't'—and about 8:30 he came here to the door, and knocked at the door. I opened the door, and he came in and asked me how the well was, and I told him, `All right,' and about that time he began shooting me. He shot once, and blood — shot my arm, and then shot me in the stomach, and run. I was sitting on the bed, and he was standing up when he shot me. [Signed] R. H. Buchheit."

The testimony of the sheriff, who took down the statement, and the attending physicians, show that deceased had been informed he could not live, was conscious of approaching death, and the statement was voluntarily made, and that he was in possession of all his faculties, although suffering intense pain. The witness was permitted to state, over objection of defendant, that, subsequent to the time the statement was written and signed, deceased was asked the question, "Was there any one else in the room besides Lawrence?" to which question he answered that appellant was in the room; and the two physicians were permitted to testify to statements made by deceased to them, or in their presence, after they had informed him he could not live, which did not conflict with the written statement, but added some additional details. All of this testimony was objected to by appellant, but under the holdings of this court we think the testimony was admissible.

In bill of exceptions No. 4, appellant complains that when the state offered Mrs. Lawrence as a witness that Mr. W. M. Holland objected to her being permitted to testify, as she was the wife of the codefendant, who had not been tried. Appellant's objection is that Mr. Holland was not an attorney representing him, and had no right to participate in this trial. Mr. Holland, of course, had no right to volunteer any objections, but his doing so could not have been hurtful to appellant. In bill of exceptions No. 9, appellant himself objected to this witness being permitted to testify, but, as in this bill it is not shown that the witness testified to any fact, the bill is incomplete, and cannot be considered.

Again, in bill No. 6, the following proceedings are complained of: "The rule having been previously invoked and enforced in the trial of this cause, the defendant asked the witness Mrs. W. W. Lawrence the following questions: `Q. Mrs. Lawrence, have you heard any of the testimony given in this case? A. Well, sir, I did one evening. Q. You were in the courtroom? A. Yes, sir; a little while one afternoon. Some of these witnesses — I did not know who they were. Q. Did you hear any of the testimony of the defendant last evening? You were standing at the door there in that room, and heard part of the testimony of the defendant Jim Ryan? A. No, sir; Mrs. Stacey stood there a little while. Q. Did she repeat to you what the testimony was? A. No, sir.' Questions by Mr. Styles, District Attorney: `Did you have reference to this trial of this cause, or some other trial of the testimony you heard? A. I have reference to this trial.'" The objection urged is that the witnesses had been placed under the rule. This is a matter within the discretion of the trial court, and, in the absence of any of the bills relating to her testimony, showing that she testified, and what she testified, this court cannot say that the court erred in its rulings. Bills of exceptions, to be considered by this court, must state the evidence adduced, so that this court, without referring to other parts of the record, can know whether or not the testimony was admissible. Green v. State, 43 S. W. 1003; Howerton v. State, 43 S. W. 1018; Ross v. State, 45 S. W. 808.

It appears that Mrs. N. Huddleston testified: "I saw R. H. Buchheit when he ate his supper; but I did not see him any time after that until after the shooting. I heard somebody go into the front room — the one usually occupied by him (R. H. Buchheit) — and close the door. This was before I retired that night. After I had gone to bed, I heard a buggy come across the bridge and stop at the front gallery, and somebody passed my window and went upstairs; then I heard some one come in the hall. There was one or two. There was two or more men. I could tell by their footsteps, and they stopped at the little window. I thought it was some of the boys had come from home, in town, and had been out about the derricks, or wells, and come to the house for something. There was more than one footstep that came and stopped at the window. I do not know that there was more than one that passed the window. I just heard one cross the hall, and some one came to Buchheit's door and knocked and called him. I recognized the voice as W. W. Lawrence's. I heard the voice two or three times, and the boy [meaning Buchheit] answered as if he had been asleep, and just woke up. W. W. Lawrence told him that he wanted to talk to him about the well. Buchheit told him, `All right.' I do not know whether or not Buchheit opened the door, or W. W. Lawrence opened it, but the door was opened, for I heard it. Some person went in. I heard him say something else to Buchheit concerning the well. I heard the well mentioned. I do not think it was any of my business; but there was something else said to Buchheit when the first shot was fired. I do not know what the last words he said were. I heard no angry words that led me to believe that there was a fuss or anything going to happen. I simply thought they were attending to their own business. I heard one shot fired, then two more, and Buchheit hollered. I recognized his voice. He hollered as if he was hurt. I do not know what was said; I only heard the noise. I heard Buchheit holler like he was in pain. I did not know whether he hollered before or after the third shot. I was kind of frightened or excited. I did not know just exactly what it meant. I then jumped out of bed, Mr. Huddleston and I, to see what was the matter. Mr. Huddleston went to the door, or started to the door, and I pushed him back, and told him not to go outside, for some one might shoot him. I opened the door and rushed out. Of course, I did not think anybody would hurt me. Anyway I went out, and there were two men, W. W. Lawrence and another. I saw two men going out of the hall like they were leaving the room, I saw these two men going out of the door between Buchheit's door and the bedroom. I asked them who they were. They made no answer, and as I got to the door they were getting in their buggy off the gallery. * * * When I saw the men getting in the buggy, and recognized them as Jim Ryan and W. W. Lawrence, and I said: `My God! It's Jim Ryan and Bill Lawrence, and they have killed Shorty Buchheit [meaning R. H. Buchheit].' I then turned and went into...