Sapp v. State

• Decision Date: 05 November 1919
• Docket Number: (No. 5128.)
• Citation: 223 S.W. 459
• Parties: SAPP v. STATE.
• Court: Texas Court of Criminal Appeals

223 S.W. 459

SAPP v. STATE.

(No. 5128.)

Court of Criminal Appeals of Texas.

November 5, 1919.

On Appellant's Motion for Rehearing, June 25, 1920.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Brazos County; H. S. Morehead, Judge.

E. E. Sapp was convicted of murder, and he appeals. Affirmed.

V. B. Hudson, of Bryan, and F. J. Duff and C. W. Howth, both of Beaumont, for appellant.

W. R. Blain, of Beaumont, and E. B. Hendricks, Asst. Atty. Gen., for the State.

LATTIMORE, J.

This appellant was convicted of the murder of his wife, in the district court of Brazos county, Tex., and given a punishment of 99 years in the penitentiary. Those of the errors therein which are deemed of sufficient importance to discuss, as well as the evidence in the case, will appear in the opinion.

The case originated in Liberty county, Tex., but was transferred, of the court's own motion, to the district court of Brazos county, and when there called for trial a plea to the jurisdiction was presented and overruled, which constitutes the first error presented. The order changing the venue of the case to Brazos county recites that it was made of the court's own motion, with the consent of the appellant, on account of the great publicity given the case, and the prejudice existing in Liberty county and each of the counties of that and adjoining districts against the appellant.

Brazos county, to which the case was transferred, was not in the same nor in an adjoining district to Liberty county, which facts form the basis of appellant's plea to the jurisdiction, as stated. Said plea did not controvert the publicity or prejudice stated in the order of the court as reasons for the removal of the case to Liberty county, but did controvert by affidavits and evidence that such order was made with the consent of the appellant. After hearing said plea, and the evidence offered thereon, the court made the following order:

"And it further appearing to the court that, because of the notoriety given the evidence in said cause and the publication thereof in the various newspapers circulating in this and the adjoining districts, the said cause numbered 2858 was heretofore on the court's own motion, and with the consent of the defendant, by order entered on the minutes of this court on the 5th day of December, 1916, transferred to the district court of Brazos county, Tex., wherein said cause is now pending.

"And the judge presiding herein, being satisfied that because of the facts hereinabove stated, to wit, the great publicity given the evidence and facts of this case, a trial alike fair and impartial to the accused and the state cannot be had in this Liberty county, and because of the great prejudice which exists in this county, as well as in the other counties of this and the adjoining districts to this 75th judicial district, he, the said judge, of his own motion, now here orders that the venue of this case be changed to Brazos county, Tex., it is therefore considered, ordered, adjudged, and decreed by the court that the venue of this cause be, and it is hereby changed from this Liberty county, to be tried in the district court of Brazos county, Tex., the same being one of the counties in the 20th judicial district of the state of Texas, and that being the nearest and most convenient county to Liberty county in which a fair and impartial trial of this cause may be had."

Without going into details in discussing the laws and constitutional provisions involved, we will observe that a trial by a fair and impartial jury is guaranteed by our Constitution, and that each and all of the laws enacted by the Legislature have in view the attainment of the object and purpose of giving to the accused a fair trial before an impartial jury as guaranteed.

Our statutes provide substantially that if it be shown, in an application for a change of venue or otherwise, that all the counties adjoining that in which the trial is pending are subject to some valid objection, the case may be removed to such county as the court may think proper. Article 632, C. C. P.

The finding of the court, as outlined in his order changing the venue of his own motion, is presumed to speak the truth, and will not be revised on appeal, unless it be affirmatively shown that appellant was materially injured by such change of venue. Cox v. State, 8 Tex. App. 283, 34 Am. Rep. 746; Frizzell v. State, 30 Tex. App. 42, 16 S. W. 751; McCoy v. State, 27 Tex. App. 417, 11 S. W. 454; Thurmond v. State, 27 Tex. App. 347, 11 S. W. 451.

Article 634, C. C. P., expressly provides that the action of the trial court granting change of venue will not be revised unless the facts showing such objection be stated in a bill of exceptions filed at the time, which was not done in this case.

Each of the cases cited by appellant in support of his contention in regard to this matter is decided on a question foreign to this issue and is not in point.

Appellant's motion for continuance was properly overruled. The fact that the Court of Criminal Appeals had not acted on his application for bail in the instant case was not sufficient ground for continuance. Streight v. State, 62 Tex. Cr. R. 453, 138 S. W. 752.

Nor was the absence of one of appellant's counsel sufficient ground for the granting of a continuance. Other and able counsel were present at the beginning of the trial, and the rights of appellant were fully and fairly protected.

The trial court did not err in overruling the application for severance, asking that Lou Sapp, the brother of appellant, be first tried. The cases were pending in separate counties and in different jurisdictions, and to have granted the severance asked for would have amounted to a continuance of the instant case, which is expressly forbidden by our statutes. Article 727, C. C. P.; Price v. State, 68 Tex. Cr. R. 556, 152 S. W. 640; Locklin v. State, 75 S. W. 305. The case cited as authority by appellant was one in which both cases were pending in the same jurisdiction, and is otherwise not in point.

All the authorities seem to hold that no error was committed in allowing the state to challenge jurors for cause who stated on their voir dire that they had conscientious scruples against inflicting the death penalty as punishment in cases depending on circumstantial evidence. Shafer v. State, 7 Tex. App. 239; Little v. State, 39 Tex. Cr. R. 654, 47 S. W. 984; Grant v. State, 67 Tex. Cr. R. 155, 148 S. W. 760, 42 L. R. A. (N. S.) 428; Clanton v. State, 13 Tex. App. 152.

That there was an eyewitness to the actual homicide would not necessarily remove the case from the domain of circumstantial evidence. Appellant was not present at the time of the killing, and his guilty connection therewith was more an issue in the case than the fact of death. Nor would the statement of the man who actually fired the fatal shot, to the effect that the appellant hired him so to do, take the case out of the rule of such evidence. Mr. Branch, in his Criminal Laws of Texas, p. 106, cites authorities supporting this position. See, also, Bloch v. State, 81 Tex. Cr. R. 1, 193 S. W. 303.

Objection to a particular juror, who stated that he had formed an opinion, is disclosed here by some of appellant's bills of exception. On similar complaints it has been repeatedly held by this court that such juror is competent if his opinion be formed by mere reading, etc., or if it appears to the court that such an opinion will not influence him in arriving at a verdict in the case. See Vernon's C. C. P. p. 377, and authorities cited.

What we have said above disposes of appellant's contentions with regard to matters preliminary to the introduction of evidence.

Mrs. Ellen Sapp, the wife of appellant, was shot and killed on November 7, 1914, the shot being from a gun in the hands of one Dick Watts, and the same was claimed at the time to be accidental. The occurrence took place at a hunting camp, and the persons present were Mrs. Sapp (deceased), Mrs. Taylor, Dick Watts, Frank Havard, and H. Sowell. Appellant was not present, but was not far away, and arrived on the scene a few minutes after the fatal shot. It was shown that, of the persons present at the time of the death of Mrs. Sapp, Sowell was the only one living at the time of the trial. Nothing appears as to the cause of the death of Mrs. Taylor, but the state claimed on the trial of the case that both Watts and Havard had been murdered by appellant, and evidence tending to so show was admitted against the appellant, as was likewise evidence tending to show that appellant had been searching for the witness Sowell while he (appellant) was armed.

The indictment and conviction of appellant was as an accomplice to the murder of his wife, it being alleged in the indictment that Dick Watts was the principal offender. No mention was made in the indictment of Frank Havard. The state's theory was that a conspiracy existed between appellant and others having for its principal object the getting of the money and property of the deceased; that Watts and Havard were parties to the enterprise, their participation being mainly for the purpose of bringing about the death of Mrs. Sapp after she had given to her husband large sums of money and had made a will in his favor. The killing of deceased being merely one of the steps necessary to obtain the property, in this opinion it will be taken for granted that, if there was such a conspiracy having such an object, it had not been consummated at the time of the homicide. The will of deceased making appellant the principal beneficiary was filed by appellant for probate shortly after the death of his wife, and was contested by her relatives. On this trial statements made by both Watts and Havard, subsequent to the death of Mrs. Sapp, were admitted in evidence. The statement of Watts was, in substance, that he killed Mrs. Sapp, and was hired so to do by appellant; that of Havard was, in substance, that appellant tried to...