Slade v. State

• Decision Date: 28 February 1891
• Citation: 16 S.W. 253
• Parties: SLADE v. STATE.
• Court: Texas Court of Appeals

16 S.W. 253

SLADE v. STATE.

Court of Appeals of Texas.

February 28, 1891.

Appeal from district court, Red River county; E. D. McCLELLAN, Judge.

Sims & Wright, for appellant. Asst. Atty. Gen. Harrison, for the State.

HURT, J.

Slade and Roberts were jointly indicted for the murder of Pleas White. A severance was had, and Slade was placed on trial, which resulted in a conviction for murder of the second degree, his punishment being fixed at confinement in the penitentiary for 40 years. From this judgment Slade appeals, and assigns numerous errors.

First assignment: "The court erred in overruling the motion for continuance." The evidence desired from Mrs. Ann Roberts was "that she saw defendant when he arrived at Dave Roberts', and that there was no blood upon his shirt, and that Slade changed his shirt at Dave Roberts' house." This is consistent with the theories of the state and of the appellant, the state contending that the appellant changed his shirt at E. Z. Roberts' house, and, if this be so, there was no blood on appellant's shirt when he reached Dave Roberts'.

Second: That there was error in admitting the testimony of Mr. S. Ewing and J. A. Vanhoos. Vanhoos swore that appellant, on the day of the homicide, threatened to kill Jordan White, Billy Groves, and Tom Fowler,—the objection being to the threats to kill other persons than the deceased, viz., Jordan White, Groves, and Fowler. Let us suppose that appellant and Roberts intended to kill all of those persons. Would the state not have the right to show this? Suppose, after such threats had been made, the appellant or Roberts had attempted to kill Jordan White or Groves or Fowler. Would not this be cogent evidence to show that the threats to kill deceased, Pleas White, were serious, and not idle? The killing of all these persons being with the scope of the conspiracy, the state had the right to show the fact. Nor can appellant complain because this evidence may tend to establish another offense. Mrs. Ewing swore that Roberts made like threats to her. This was after the threats were made to Vanhoos. The threats to Mrs. Ewing were made in the absence of appellant. Concede these facts to be true, the threats were admissible, though made in the absence of Slade, because a conspiracy to kill deceased had very clearly been proved, not only by the threats to Vanhoos, but by other circumstances tending strongly to show such a conspiracy.

Fourth assignment: "There was error in refusing to give special charge No. 4." Appellant requested the court to charge: "When the admission or confession of a party is introduced in evidence by the state, then the whole of such admission or confession is to be taken together, and the state is bound by them, unless they are shown by the evidence to be untrue; and, unless the state has shown the statements of defendant as to how the killing took place to be untrue, should acquit him." This is an excerpt from the opinion in Pharr v. State, 7 Tex. App. 472. In the Pharr Case the trial court had submitted to the jury two charges relating to the confessions or statements of the accused, the last being calculated to neutralize the first; the first being correct and the last wrong. The charge rejected in this case is in the language of the correct one in Pharr's Case. Now, it is not decided in the Pharr Case that, though correct, a charge must always be given when requested, in every case in which the state introduces in evidence the admissions of the accused. This question was not before the court in the Pharr Case. Under what circumstances must such a charge be given? This question is answered in Jones v. State, 29 Tex. App. 20, 13 S. W. Rep. 990. When the state relied for conviction alone upon the admissions and confessions of the accused, and such confessions or admissions contain exculpatory or mitigating matters, such a charge should be given. In this case the state did not rely upon confessions or admissions alone for conviction. These were introduced mainly for the purpose of impeaching the accused, who testified in the case. There was a large mass of evidence adduced by the state in rebuttal of these confessions and admissions.

Fifth assignment: "The court erred in refusing to give a special charge, as follows: `You are instructed that should you...