Sorrell v. State

Decision Date05 April 1916
Docket Number(No. 3931.)
Citation186 S.W. 336
PartiesSORRELL v. STATE.
CourtTexas Court of Criminal Appeals

Appeal from District Court, Smith County; J. S. McIlwaine, Special Judge.

Pearl Sorrell was convicted of murder, and he appeals. Affirmed. On motion for rehearing. Motion overruled.

Simpson, Lasseter & Gentry, of Tyler, W. M. Imboden and B. B. Perkins, both of Rusk, Geo. S. King, of Houston, and Thos. Shearon, for appellant. M. G. Sanders, Dist. Atty., of Canton, Norman & Shook, of Rusk, and C. C. McDonald, Asst. Atty. Gen., for the State.

PRENDERGAST, P. J.

Appellant was convicted of murder, and his punishment assessed at five years' confinement in the penitentiary.

This is the second appeal. The first is reported in 74 Tex. Cr. R. 505, 169 S. W. 299. A sufficient statement was there made, so that the questions now decided can be understood. If any additional statement on any question becomes necessary, we will make it. There is no substantial difference of the material facts or testimony on this trial from what was shown on the other appeal. The case this time was tried substantially in accordance with the opinion on the other appeal, and all questions therein held error were avoided on this trial.

This is at least the third trial and conviction. The trial court granted a new trial after the first, and this court reversed the judgment on the second trial. All the previous trials were in Cherokee county, where the homicide occurred in July, 1910. After the reversal by this court, the venue was changed to Smith county, where this trial occurred.

Appellant made a motion for a continuance. This was at least his fourth application for a continuance. The state contends, and reasonably showed, that by his action appellant secured two other continuances. The application this time was made because of the absence of three witnesses. The bill, as qualified, shows that pending the trial two of these witnesses appeared and testified. The record does not disclose how their attendance was secured.

The absent witness who did not appear and testify was Louis Jennings. The state vigorously and properly contested appellant's application on the grounds: Of lack of diligence; that the witness was a transient person; that the testimony appellant claimed he would give was not probably true; and that, even if present, he would not testify as claimed; and on other grounds. The appellant replied to the state's contest. The record discloses that the court heard evidence on this contest. Whether there was additional evidence from the affidavits filed by the respective parties is not definitely disclosed. If there was additional testimony heard, the record does not disclose what it was. The overruling of said application and the absence of the witness was made a ground for a new trial by appellant in his motion therefor. The state again contested that ground of this motion. The appellant replied thereto. This motion was acted upon by the court five days after the verdict and judgment. The record discloses with certainty that the court heard evidence at that time on said ground of appellant's motion. What that evidence was is not disclosed by this record. Under these circumstances, in accordance with the long line of uniform decisions of this court, we must presume that the evidence heard clearly justified the action of the court, and that in the absence of a proper bill or statement of facts of the evidence introduced, filed during term time, we cannot do otherwise than hold that the action of the court presents no error. Black v. State, 41 Tex. Cr. R. 185, 53 S. W. 116; Reinhard v. State, 52 Tex. Cr. R. 59, 106 S. W. 128; Jarrett v. State, 55 Tex. Cr. R. 550, 117 S. W. 833; Mikel v. State, 43 Tex. Cr. R. 615, 68 S. W. 512; Williams v. State, 56 Tex Cr. R. 225, 120 S. W. 421; Probest v. State, 60 Tex. Cr. R. 608, 133 S. W. 263; Tarleton v. State, 62 S. W. 748; Knight v. State, 64 Tex. Cr. R. 541, 144 S. W. 967; Bailey v. State, 65 Tex. Cr. R. 1, 144 S. W. 996. See, also, Jordan v. State, 10 Tex. 479; Sharp v. State, 6 Tex. App. 650. It is unnecessary to collate the large number of decisions by this court down to this very date following these decisions.

However, we will discuss the question further on its merits. The claimed testimony of the absent witness, upon consideration of all the other testimony in the case, evidently if he would have testified at all as claimed by appellant, is not all of what he would have testified. Perhaps it was not necessary for appellant in his application to state all the witness would have testified, but merely to state, as he did, such part of what he claims he would have testified which would tend to be in his favor. We think, without stating it, that as stated by appellant, if he would have so sworn, it would be considered as material in his favor. Appellant's bill on this subject was not presented to, nor acted upon by, the trial judge, until nearly two months after the term of court had adjourned. The court, as stated, had heard the motion for a continuance and the motion for a new trial on that ground, and had heard all the evidence on the trial and, of course, whatever evidence was introduced in the contest of both motions, and from all this was prepared to make, and did make, his explanation and qualification of the bill, which is quite lengthy, so that it could be understood by this court. We will not give all of it, but the substance of it. Appellant in no way contested the court's qualification, and is therefor under all the authorities, bound thereby. The substance of the court's qualification was: (1) That the case had been pending over five years, and the appellant had obtained three previous continuances, the first on account of the absence of his brother, who never afterwards attended any of the terms of court, and never testified. That about 200 witnesses attended the trial at each term, and he deemed it probable that at no time could the attendance of all witnesses be had. That said witness Jennings was served with a subpœna in Cherokee county before the July term, 1915, and attended that term. The motion for a continuance itself shows that no process had ever been issued or served for said witness by appellant until for said July term. (2) That the court believed said witness was a transient person, and not likely to be had at any term of court, unless he was then in Navarro county. While that point was contested, the testimony was amply sufficient to authorize the court to conclude as he did. (3) That the testimony expected to be had from said witness, under the circumstances of its discovery, induced the court to believe that the witness would probably not testify as claimed in the application; and that if he did so, his testimony would be untrue. This also was a contested issue, but the record was sufficient to justify the court in his conclusions. (4) That it was known that it would take five or six days to try the case, and he believed, with proper diligence, if the witness was in Navarro county, as the application alleged, his attendance could be secured. (5) That appellant had no process issued to Navarro county until the third day of the trial. In the meantime, the state had process issued to Dallas county for the witness. (6) That the evidence of Brown and Charley Jennings, together with their affidavits to appellant's answer to the contest of his motion for a continuance, showed that the absent witness told them he was going west to pick cotton, and would remain until after cotton picking time. That the court knows this would have been as late as December 1st, and the application showed that one or both of these parties, Brown or Jennings, communicated with defendant, and that they had the information two or three weeks before the trial, and their testimony did not exclude the idea that they told defendant that the witness would be absent until after adjournment of this court, and defendant made no effort to prevent the witness from leaving or to have him returned. (7) That no affidavit of the absent witness accompanied the motion for a new trial, although the hearing on the motion was five days after the verdict was rendered. (8) That, on Saturday morning, before the court charged the jury and arguments had begun, and some 34 hours before the verdict was returned, one of the attorneys for the state informed one of the attorneys for appellant that said witness was in Collin county, between Plano and McKinney, and the defendant did not then have any process issued for said witness, and made no motion to postpone to procure him, either at the conclusion of the evidence Friday night, or when he got this information. That, in addition to this, no witness on the trial testified that said absent witness was anywhere about the scene of the homicide, or in the neighborhood thereof, when it occurred.

The statute (article 608, subd. 6, C. C. P.) expressly provides that an application for a continuance "shall not be granted as a matter of right"; that the truth as well as the merits thereof and its sufficiency "shall be addressed to the sound discretion of the court called to pass upon the same," but that if a defendant is convicted, and it appears on the trial that the absent witness' evidence was of a material character, and the facts set forth in his application were probably true, a new trial should be granted. All this, as the decisions uniformly hold, must necessarily be left to the trial judge, who sees and hears the whole proceeding and all the witnesses. It is true his discretion is not an arbitrary, but a judicial, one. In addition to the statute, the rules applicable to a continuance have been laid down by many of the decisions of this court, and have been announced by Judge White in his An. C. C. P. We will restate some of them.

"The law requires of a defendant a rigid compliance with the exact...

To continue reading

Request your trial
5 cases
  • Gray v. State
    • United States
    • Texas Court of Criminal Appeals
    • 2 Junio 1920
    ...S. W. 532; Villareal v. State, 80 Tex. Cr. R. 136, 189 S. W. 156; Guerra v. State, 80 Tex. Cr. R. 329, 189 S. W. 952; Sorrell v. State, 79 Tex. Cr. R. 442, 186 S. W. 336; Slade v. State, 85 Tex. Cr. R. 359, 212 S. W. 661; Epperson v. State, 82 Tex. Cr. R. 245, 199 S. W. 478; Miles v. State,......
  • Quinney v. State
    • United States
    • Texas Court of Criminal Appeals
    • 3 Diciembre 1919
    ...S. W. 1194; Allen v. State, 72 Tex. Cr. R. 277, 162 S. W. 868; McGee v. State, 78 Tex. Cr. R. 636, 182 S. W. 309; Sorrell v. State, 79 Tex. Cr. R. at page 452, 186 S. W. 336; Blake v. State, 81 Tex. Cr. R. 88, 193 S. W. 1064. The statement of facts will therefore not be There are a number o......
  • Maldonado v. State, 44250
    • United States
    • Texas Court of Criminal Appeals
    • 23 Noviembre 1971
    ...at the time at which they claimed he made said threats. * * * In our opinion, it was clearly admissible * * *.' Sorrell v. State, 79 Tex.Cr.R. 437, 186 S.W. 336, 340--341. The fact that the remainder of the conversation contained another offense does not alter the rule. Johnson v. State, 37......
  • Pierce v. State
    • United States
    • Texas Court of Criminal Appeals
    • 4 Diciembre 1918
    ...which can be reviewed, in the absence of a statement of facts. McGee v. State, 78 Tex. Cr. R. 638, 182 S. W. 309; Sorrell v. State, 79 Tex. Cr. R. 453, 186 S. W. 336; Branch An. P. C. p. The judgment is affirmed. ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT