Squires v. State

• Decision Date: 06 December 1899
• Citation: 54 S.W. 770
• Parties: SQUIRES v. STATE.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Criminal Appeals

54 S.W. 770

SQUIRES v. STATE.¹

Court of Criminal Appeals of Texas.

December 6, 1899.

Appeal from district court, Liberty county, L. B. Hightower, Judge.

E. Squires was convicted of murder, and appeals. Affirmed.

L. B. Hightower, Jr., and Stevens & Marshall, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.

BROOKS, J.

Appellant was indicted on the 25th of February, 1899, in the district court of Liberty county, for the offense of murder. At a subsequent term of the court he was tried, and his punishment assessed at confinement in the penitentiary for life.

The record shows that deceased was at work in his own field, and that some one fired a shot from ambush on the outside of his field, which shot struck deceased in the right side of the head and passed through his head, coming out of the left temple, which caused his immediate death.

Appellant's first bill of exceptions complains of the court's refusal to grant his continuance, which motion was filed August 25, 1899. The motion fails to state on its face whether it is the first or second application. However, it contains the requisites of a second application; and we hold it must be treated and tested by the rules governing a second application, in the light of this record. Washington v. State, 35 Tex. Cr. R. 156, 32 S. W. 694. Without reviewing the application in detail, we think it sufficient to say that the testimony of the witnesses for whom the continuance was sought is either cumulative or not probably true. Furthermore, we do not think the application shows diligence as required by law. We find that there was no effort made to obtain the presence of the witnesses until August, and appellant was indicted in the February preceding. We do not think the court erred in refusing to grant the motion for continuance. Childers v. State (Tex. Cr. App.) 35 S. W. 654; Clark v. State (Tex. Cr. App.) 36 S. W. 273; Hudson v. State (Tex. Cr. App.) 36 S. W. 452.

Appellant's second bill is that the court erred in permitting the witness Smith to testify that said witness placed the shoe of appellant in the track supposed to have been made by the person who committed the homicide, and that the shoe exactly fitted the track; the ground of appellant's contention being that he was under arrest at the time, and that such act was forcing him to give evidence against himself. There is nothing in the bill, however, to show that appellant objected to said test; but, whether voluntary or not, we think the testimony was admissible under the well-known rules of this court. Gallaher v. State, 28 Tex. App. 281, 12 S. W. 1087; Meyers v. State, 14 Tex. App. 35; Bryant v. State, 18 Tex. App. 107.

Appellant's third bill is that the court erred in not permitting the witness W. A. Wells to answer the following question: "If there had been a gun in the buggy you have described, at the time you were talking to defendant, at said time and place, could and would you have seen it?" The district attorney objected to said question on the ground that it called for the opinion of the witness, which objection was sustained, and the witness was not permitted to answer. Defendant says he expected to prove by said witness that, if there had been a gun in or about the buggy at said time and place, witness could and would have seen same. The court explains the bill with the following: "The witness stated that he never looked in the buggy particularly for the gun or anything else. When he was asked by counsel for state if he was willing to state positively that there was no gun in the buggy, the witness answered that he was not." We think the court's explanation contradicts appellant's contention, and refutes the idea that the court erred in the ruling complained of by appellant.

The fourth bill complains that the court erred in permitting the district attorney to ask a hypothetical question, which hypothetical question appears to be sustained by the evidence. The hypothetical question asked the doctor was this: "Doctor, if one suffering on a certain day with articular rheumatism, —having his feet and legs swollen, as the defendant is shown to have had,—could he sufficiently recover in the space of two days from such attack as to enable him to mount a horse, ride one and a quarter miles, dismount, hitch his horse, walk the distance of a quarter of a mile, return in a run to his horse, mount, and ride to the place of his departure?" Appellant objected to this question on the ground that there were no facts in the case to support or warrant such a hypothetical question. The court explains the bill...