Smith v. State

• Decision Date: 07 May 1902
• Citation: 68 S.W. 267
• Parties: SMITH v. STATE.
• Court: Texas Court of Criminal Appeals

68 S.W. 267

SMITH v. STATE.

Court of Criminal Appeals of Texas.

May 7, 1902.

Appeal from district court, Bell county; Jno. M. Furman, Judge.

George W. Smith was convicted of murder in the first degree, and he appeals. Reversed.

Jas. B. McMahon and Jno. D. Robinson, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of murder in the first degree, and his punishment assessed at confinement in the penitentiary for life.

Appellant complains of the action of the court overruling his motion for continuance, and in refusing to grant him a new trial predicated on that ground. The application for continuance is based on the absence of Mrs. Walter Palmer, by whom appellant expected to prove an alibi; that is, that on the night of the homicide he remained all night at the house of Walter Palmer, the husband of the absent witness. Appellant shows that the witness was placed under bond for her attendance at the previous February term of the district court, this trial being at the August term. It is not shown in the application that the witness attended the court at said February term, nor does the court, in his explanation, show that she was not there, but merely says that the bond of the witness was taken for her appearance at the February term. There is no forfeiture shown of the bond, and the state continued the case at said February term; so it is not shown that the witness was then in default. We are inclined to the opinion that diligence was shown. We also believe that the testimony of said witness was material. True, appellant proved his alibi by his wife, and, to a certain extent, by Walter Palmer. But this was his first application, and appellant was entitled to have the testimony of this witness as to his alibi. The application for continuance should have been granted.

We have examined the bill of exceptions with reference to the action of the court in allowing the district attorney to dismiss the case against Dee Harville, who was indicted for the same offense as appellant. The case was dismissed against this witness after he had testified, and during the trial of this case. While the better practice would have been to have dismissed the case against the witness before the trial, or after the trial had been concluded, yet we cannot say there was reversible error in the action of the court allowing the state to dismiss the case pending the trial. Instead of the jury regarding this action as an expression on the part of the court that the witness had told the truth, as to the homicide, it would, rather, seem that he was testifying under a bargain with the state; and the effect of the dismissal in the hearing of the jury would, in a measure, handicap the state. At any rate, we do not believe any prejudice to defendant is shown by this action of the court.

During the progress of the trial defendant put Pearl Harville on the stand, and proved by her, among other things, that Dee Harville, her brother, had killed her father, and that appellant, Smith, was not there, and did not participate therein. On cross-examination the district attorney, in order to impeach her, asked her if her uncles, Ben Smith and Jim Smith, had not threatened to kill her if she did not make the statement she had sworn on the stand, to which the witness answered, "No." The state then undertook to impeach her, and inquired of her if she had not, "in a conversation on yesterday with Dee McKay," at a time and place named, told him that she could not tell the truth about the homicide; that she had no home to go to; that the Smiths would have nothing to do with her; and that he (McKay) told her, if she had no home to go to, and would tell the truth, she could go to a hotel, and he would pay her way. She denied making this statement to McKay, but stated that, on the occasion inquired about, Dee McKay told her, if she would swear the same thing that Dee Harville had sworn to, that he would board her at a hotel. The state placed said McKay on the stand for the purpose of impeaching said witness Pearl Harville, and, on being interrogated, he testified that he had a conversation "on yesterday" with Pearl Harville, and that she told him she was afraid to tell the truth, for, if she did, the Smiths would have nothing to do with her, and after the trial was over she would have no home to go to, and that he said to her that she could go to her friends, and stay with them, and she replied she had no friends, and then he told her she could go to a hotel, and, if she had no money to pay her way, or no one else to help her, that he would pay her way at the hotel. This was objected to by appellant on the ground that the above statement made by the witness Pearl Harville was made by her on cross-examination by the state, and that the same was in regard to an immaterial and irrelevant matter, and was purely hearsay, and because the question asked called for the whole conversation, which was irrelevant, immaterial, and was calculated to injure the rights of defendant before the jury. The court says in explanation that the witness first answered the impeaching questions, and then on cross-examination the balance was brought out, and, further, the statement as made by Pearl Harville was voluntary, and not in response to questions by the state, and the state was permitted to cross on...