Stacy v. State

• Decision Date: 21 April 1915
• Docket Number: (No. 3425.)
• Citation: 177 S.W. 114
• Parties: STACY v. STATE.
• Court: Texas Court of Criminal Appeals

177 S.W. 114

STACY v. STATE.

(No. 3425.)

Court of Criminal Appeals of Texas.

April 21, 1915.

On Motion for Rehearing, June 2, 1915.

Appeal from District Court, Hill County; Horton B. Porter, Judge.

Lee Stacy was convicted of murder, and he appeals. Affirmed.

D. Moore, of Aquilla, Morrow & Morrow, of Hillsboro, and Taylor & Forrester, of Waco, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.

PRENDERGAST, P. J.

Appellant was convicted of the murder of his 17 year old stepson — the son of his wife — and his punishment assessed at 99 years in the penitentiary.

These persons and many others were attending a dance. The killing occurred about midnight May 7, 1914. It was a bright, cloudless, moonlight night, with the moon about full. The parties were out in the open a short distance from the house, with quite a number of persons out there in sight and in hearing. The state introduced three eyewitnesses. Appellant introduced no eyewitness except himself. His defense was self-defense. The testimony by the state makes a clear case of murder and disproved appellant's defense. His testimony alone would tend to show self-defense. We see no necessity of reciting the evidence.

Appellant's main contention seems to be the claimed error of the court in overruling his motions for a continuance for the absence of Lum Hardin, which we will first discuss.

In order to properly discuss this question, we will state the law and the evidence applicable thereto. In doing this, no reflection is intended upon appellant or any of his attorneys. We merely discuss the question and the evidence as developed by the record.

The record herein and of this court show that the justice of the peace at Aquilla, in Hill county, near where the homicide occurred, the next day thereafter, held an examining trial upon which he denied appellant bail and properly committed him to the custody of the sheriff of the county; that several days thereafter he applied to the district judge for a writ of habeas corpus, which was granted, and upon hearing by the district judge he on June 1, 1914, denied bail and likewise properly remanded appellant to the custody of the sheriff. Appellant appealed from this judgment of the district judge to this court, which affirmed the judgment (168 S. W. 1199), all thereby showing that it was a murder case in which the death penalty might likely be inflicted, of which, of course, appellant and all of his attorneys had knowledge. Appellant has been confined in jail at Hillsboro, the county seat of Hill county, continuously from the time the justice of the peace first denied him bail. The grand jury of Hill county duly indicted him September 17, 1914, at the term of court for said county which began on the first Monday in September. He was duly served with a copy of the indictment on September 23d. In due time, as was customary, the judge set the criminal docket. On September 25th, the judge set this case for trial for October 19th and ordered a special venire for that date. The special venire must have been for quite a number of veniremen.

Two of appellant's attorneys, Messrs. Morrow & Morrow, lived at Hillsboro. Judge Morrow of this firm, however, was at Austin in attendance on the State Senate, of which he was a member, until October 15, 1914. Two others, Messrs. Taylor & Forrester, at Waco. Mr. Forrester said they relied on Mr. Moore to procure process for witnesses. And the other Mr. Moore lived at Aquilla, some 16 or 18 miles southwest from Hillsboro in Hill county, near which the homicide occurred. Appellant at no time personally applied for any process whatever for any witness. The first time that any of appellant's attorneys applied for process was on October 14, 1914 — 19 days after the case had been set for trial and the special venire ordered, and only 4 days, exclusive of the day on which the process was issued and the case set for trial, before the case was to be tried.

It is the settled law of this state, both by statute and all the decisions, that an accused is not entitled as a matter of right to a continuance; that the truth of his application therefor, as well as the merits of the ground and its sufficiency, is addressed to the sound discretion of the trial court. It is also statutory, as well as in accordance with the decisions, that before an accused can get a continuance he must affirmatively show that he has used due diligence to procure the attendance of his claimed absent witness.

Judge White says:

"Diligence in securing the attendance of a witness is in the highest degree essential; and the continuance should invariably be refused when the want of diligence amounts to pure negligence. Greenwood v. State, 9 Tex. App. 638." Section 600, White's Ann. C. C. P.

"Continuance is properly refused always where there is a want of diligence. O'Neal v. State, 14 Tex. App. 582; Hart v. State, 14 Tex. App. 657; Childers v. State, 16 Tex. App. 524; Hawkins v. State, 17 Tex. App. 593 ; Timbrook v. State, 18 Tex. App. 1; Barrett v. State, 18 Tex. App. 64; Bond v. State, 20 Tex. App. 421; Moseley v. State, 25 Tex. App. 515 ; Stegall v. State, 32 Tex. Cr. R. 100 [22 S. W. 146, 40 Am. St. Rep. 761]; Underwood v. State, 38 Tex. Cr. R. 193 ; Henry v. State, 38 Tex. Cr. R. 306 ."

This court, in Skipworth v. State, 8 Tex. App. 139, said:

"The law requires of the defendant a rigid compliance with the exact terms prescribed for such applications, and if there is a lack of diligence, apparent from the application or otherwise, * * * its mandate is inexorable and the trial must proceed."

In Walker v. State, 13 Tex. App. 647, 44 Am. Rep. 716, note, this court said:

"We know of no rule of law which requires the state to show a want of diligence in opposition to a continuance. It devolves upon the defendant to show, affirmatively and distinctly, that he has used all the diligence to obtain his witness required by law."

In Long v. State, 17 Tex. App. 129, this court said:

"The onus is upon the defendant to establish the exercise of diligence in support of an application for a continuance. * * * The burden is upon the party seeking a continuance to show himself entitled to it by definite, exact and certain averments."

In Massie v. State, 30 Tex. App. 67, 16 S. W. 770, this court said:

"Neither will this court nor the trial court supply by inference and presumption allegations not contained in an application for a continuance which should be stated therein. The application must be complete within and of itself in order to require this court to say it was erroneously refused. Presumption, when indulged, will and must be in favor of the rulings of the court in reference to the matter complained of, and not against same."

The record herein shows that said witness Lum Hardin testified in said examining trial on May 8th. A statement of his testimony was then made in writing, signed and sworn to by him. Appellant and some, if not all, of his attorneys, knew this all the time.

Appellant made his first application for a continuance on October 19th when the case was called for trial. Up to that time, his application and the record fail to show that he, or any of his attorneys, used any effort whatever to ascertain the whereabouts of said witness. Inferentially, at least, the record and said application indicate that neither appellant nor any of his attorneys made any effort whatever to locate said witness, or to aid or direct the officers where to find him. The record does not inform us who said witness Hardin is — whether a young or an old man, married or single, permanently located or a transient. It simply shows that at the time of the homicide he resided in the neighborhood where it occurred. It does not show his business, occupation, or avocation.

The record and application show that for the first time, on October 14th, Mr. Moore, one of appellant's attorneys, applied to the clerk at that late date for a subpœna for said Hardin, and other witnesses; that the clerk at first included Hardin's name in the subpœna with the other witnesses, but then, recalling that he had on September 30th, at the instance of the state, issued a subpœna for said witness in which was included several others, he thereupon so informed Mr. Moore and erased Hardin's name from the subpœna. Mr. Moore acquiesced in this. The clerk was doubtless attempting to act under article 1577, P. C., which prescribes:

"It shall be unlawful for the clerk of any district court, after a witness in a felony case has been served with a subpœna or an attachment, to issue any other or further process for said witness, except upon the order of the presiding judge, made upon application to him for that purpose. When a witness has been served with process by one party, it shall inure to the benefit of the opposite party, in case he should need said witness; and, as far as practicable, the clerk shall include in one process the names of all witnesses for the state and defendant; and such process shall show that the witnesses are summoned for the state and defendant. Any district clerk who shall violate the provisions of this law shall be deemed guilty of a misdemeanor, and punished by a fine of not less than ten nor more than one hundred dollars."

It will be clearly seen by this that the clerk is forbidden to issue another subpœna for a witness only when that witness has already "been served with a subpœna." Even then, upon application to the judge, appellant or his attorneys could have had another subpœna issued for this same witness. Surely, the appellant and his attorneys are presumed to know this law, and, if they had not been satisfied then with the process that had been issued at the instance of the state for said witness, they should have applied to the judge and have procured another subpœna for him. It cannot be held that appellant, under the circumstances, was deprived of process for his witness. If the clerk was mistaken, the appellant...