Streight v. State

• Decision Date: 19 April 1911
• Citation: 138 S.W. 742
• Parties: STREIGHT v. STATE.
• Court: Texas Court of Criminal Appeals

138 S.W. 742

STREIGHT v. STATE.

Court of Criminal Appeals of Texas.

April 19, 1911.

Motion to Reform Judgment Denied May 24, 1911.

Dissenting Opinion, July 3, 1911.

Appeal from District Court, McLennan County; Richard I. Munroe, Judge.

Minnie Lee Streight was convicted of murder, and she appeals. Reversed and remanded, with instructions.

See, also, 138 S. W. 1198.

Williams & Williams and W. R. Parker, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

The appellant was indicted, charged with the offense of murder. Upon a trial she was convicted and sentenced to the penitentiary for life.

1. On the threshold we are presented with a grave question, an application for change of venue in this case. This is a matter generally left to the sound discretion of the trial court; but in this instance, after a careful reading of the record, we have come to the conclusion that the application should have been granted. Without going into details in this matter, it is sufficient to say: that the newspaper reports in the record show that there was a deep interest taken in this case, and that when the habeas corpus hearing was held the district court was crowded, and the attendance continued from day to day, the paper saying: "Jammed to the very doors, with every seat on the lower floors and in the balconies occupied, besides the many who stood up both downstairs and upstairs." That at the conclusion of this hearing the trial judge expressed his opinion that "defendant had shot the deceased while he was asleep in bed," and he refused bail. That the evidence in the case and the opinion of the trial judge were published in newspapers having a general circulation over the entire county. That upon a second habeas corpus hearing again much interest was manifested, and, when the judge hearing the cause granted the defendant bail, a number of the citizens of McGregor hanged and burned him in effigy, and this fact was published broadcast over the county. Without commenting on this further than to say that the record discloses that men who engaged in this proceeding were men of standing in their town and county, it shows to what extent passion and prejudice were swaying the minds of those people. It further appears that when a reputable attorney was appointed administrator of the estate, because he was one of the attorneys of the defendant, a special train was chartered for the citizens to go en masse to the county judge to protest, and he stepped aside and let another be appointed to avoid this scene. The printing office was broken into and a paper issued against the will of the administrator in charge. Witnesses from many portions of the county testify that they do not believe the defendant could get a fair and impartial trial. Many testify they believed she could. Some testify they had an opinion in the case themselves, but they thought she could get a fair and impartial trial. Every witness who testified, either for the state or defendant, said they had heard the case discussed more or less, and a great many stated that they had read the evidence and had read the opinion of the judge expressed at the habeas corpus trial. Not a single witness testified that he knew nothing of the case, and a great majority had formed an opinion. As said by this court in the case of Steagald v. State, 22 Tex. App. 496, 3 S. W. 780: "Among English speaking peoples `the right of trial by jury' has always been considered, and Sir William Blackstone justly denominates it `the palladium of civil rights.' Our Constitution requires that it `shall remain inviolate.' [Bill of Rights, § 15.] As an essential factor in the protection of the life and liberty of the citizen, it is considered so important that our laws declare that `the defendant to a criminal prosecution for any offense may waive any right secured to him by law except the right of trial by jury in a felony case.' [Code Cr. Proc. art. 23.] But he is not only entitled to a trial by jury, but our Constitution characterizes the kind of jury which is to try him, and says: `The accused shall have a speedy public trial by an impartial jury.' [Bill of Rights, § 10.] Not only so, but it is also the will and policy of the law that the `trial shall be alike fair and impartial to the accused and the state.' An impartial jury and a fair trial is what the state demands, and in her demands she is no respecter of persons. She has one law for all —the high and the low, the rich and the poor, the friendless, the most debased and hardened of criminals. The greater and more horrible the crime charged, the greater and more imperative the necessity that these safeguards—these landmarks of the law— should be constantly looked to and kept steadily in view, lest, perchance, they should be forgotten, denied, or ignored in those natural promptings of a manly, it may be, and certainly a human instinct, which, standing appalled and outraged at the very contemplation of such heinous iniquity, condemned the suspected criminal in advance, and mainly, perhaps, through the magnitude of his imputed crime. In such cases, when the popular mind is inflamed and popular indignation is ready and clamorous to become the executioner of its own vengeance, it is the part of an honest, fearless, manly judiciary to uphold the standard of the law, and to vindicate its majesty and integrity regardless of all consequences."

This appellant may be guilty of one of the most diabolical offenses known in the annals of crime. It may be the citizenship were justly wrought up to the high tension this record discloses, and she deserved the punishment accorded to her in this case, but our courts are organized that every person may have a fair and impartial trial by an impartial jury, uninfluenced by any other consideration than the evidence adduced on the trial.

Many people have a wrong conception of an application for a change of venue, construing it as a reflection upon the citizenship of a county. This is not a correct view, because juries are selected under the rules of law; and while it possibly and doubtless is true that among the citizens of McLennan county twelve men, yea, possibly hundreds of men, could be found who would give to this defendant a fair and impartial trial, but that is not the question. The question to be decided is, Do we know as near as mortals may, when we take into consideration the mode and method provided by law for the selection of juries, that a jury will be obtained that will not be influenced by the passions of the hour, by public sentiment, who have not prejudiced the case in their own minds, or any consideration other than the evidence in the case; and, inasmuch as this case must be reversed upon other grounds anyway, we have decided that a change of venue should be granted, and the judge of the district is ordered to make an entry changing the venue in this case in accordance with the provisions of the statute. The mind of human kind is such that it more readily gives credence to testimony in consonance with preconceived notions or ideas than to receive testimony of a different character. The state cannot be hurt, for all it desires is a jury of twelve men who will receive their first impressions from the evidence adduced on the trial. See Coffman v. State, this day decided.

2. It appears in this case that Mrs. Pattie W. Neff was indicted as an accomplice in this homicide. Defendant filed a motion as provided for by article 707 of the Code of Criminal Procedure that Mrs. Neff be first placed on trial. When this application was presented, the state's counsel suggested to the court grounds on which to quash the indictment against Mrs. Neff, and the court entered an order quashing the indictment. The defendant insisted that the motion to quash the indictment was insufficient, and demanded a verdict of not guilty on a trial. In all this she was joined by Mrs. Neff. The defendant insists that in this there was error, because the state did not agree that it would not prosecute Mrs. Neff for this offense, and the affidavit of Mrs. Neff is attached showing that she declined and refused to testify, inasmuch as she had been indicted for complicity in this offense, and her testimony might be used as evidence against her in case she was again indicted. Article 709 of the Code of Criminal Procedure provides that the attorney representing the state may at any time dismiss a prosecution as to one or more defendants, and the person so discharged may be introduced as a witness by either party. Mrs. Neff, when the indictment was quashed, stood as though she had never been indicted, and was a qualified witness for the state or defendant. It is true, if the state desired to compel her to testify, over her objection, it would have been incumbent upon the state to agree not to prosecute her. But the state did not seek her testimony, and, when the state placed her in position where she was qualified as a witness, it had done all that was required. If Mrs. Neff was conscious of her innocence, she need have no fear. Any witness for a defendant, whether he had ever been indicted or not, could make this demand, if Mrs. Neff could do so when she stood freed from an indictment. When the state placed Mrs. Neff in position so she could testify under the law, it had met the requirements of the Code.

2½. We do not think the court erred in refusing to quash the indictment against this defendant on the grounds set out in the motion. While the facts disclose that the juryman challenged had intense opinions in this matter, yet the evidence does not disclose that he was a prosecutor in the sense that word is used in the Code. In addition, the challenge was withdrawn at the time the grand jury was impaneled, and not renewed until after the indictment had been returned into court.

3. Owing to the disposition of this case, it becomes unnecessary to pass on the application for a continuance and the action of the court th...