Tate v. State

• Decision Date: 27 November 1895
• Citation: 33 S.W. 121
• Parties: TATE v. STATE.
• Court: Texas Court of Criminal Appeals

33 S.W. 121

TATE v. STATE.

Court of Criminal Appeals of Texas.

November 27, 1895.

Appeal from district court, Comal county; Eugene Archer, Judge.

Dave E. Tate was convicted of murder in the second degree, and appeals. Affirmed.

W. O. Hutchison and J. D. Guinn, for appellant. Mann Trice, for the State.

HENDERSON, J.

Appellant was tried in the district court of Comal county on an indictment charging him with murder, was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for 15 years; and from the judgment and sentence of the lower court he prosecutes this appeal.

Appellant's first bill of exceptions relates to the overruling by the court of his motion for a continuance. Appellant sought to continue the case on account of the absence of one Mrs. W. E. Tucker, alleged to reside in Brazoria county, Tex. As to the question of diligence, we observe that the indictment in this case was presented on the 13th day of November, 1893, and no effort appears to have been exerted to procure the attendance of this witness until the 14th day of March, 1894, when an attachment issued for her to Brazoria county, Tex., at the instance of appellant. This was returned executed as to some of the witnesses named in said attachment, but no return was made as to Mrs. Tucker. On the 16th day of May, thereafter, another attachment was issued to said Brazoria county for this witness, and also for others. It was executed as to the husband of Mrs. Tucker, but there was no return as to Mrs. Tucker. The case was tried on the 28th day of May. This was not sufficient diligence. If, however, we are permitted to look beyond the motion for a continuance, and the bill of exceptions connected therewith, we find in another portion of the record that appellant proposed to prove before the jury, by the husband of the absent witness, that she was enceinte, and not able to be brought into court. Then the question occurs, is the testimony of this absent witness of such material character as to have authorized a continuance of the case, or to have invoked the action of the court in the granting of a new trial? The bill of exceptions as to the testimony of this witness shows that she would testify that deceased struck the appellant the first blow. This, as we understand it, was not a controverted issue in the case. All of the state's witnesses who spoke on this point testified to the same effect. It is further stated that it is expected to prove by this witness that this blow was struck without provocation on the part of appellant. This statement is rather a conclusion or opinion on the part of the witness, without the statement of any fact within her knowledge as to what was being said or done between the parties at the commencement of the difficulty. The record shows that this witness was at least 75 yards from the parties at the time of the homicide. Others were nearer, and with equal facilities for seeing and hearing, and while they testify that words passed between the parties when they first met, and before the deceased was heard to talk in a loud tone of voice, yet they were unable to relate what was said between the parties; and in the absence of some statement in the application that this witness heard and understood the language used by the parties when they met, or saw and understood all the acts of the parties at that time, we cannot assume under the general allegation that the first blow was struck without provocation, that she saw or heard acts or words not stated in the application, and not testified to by other witnesses, with better opportunities than the absent witness. Appellant also states that he expects to prove by said absent witness that at the time he shot deceased the deceased was in the act of attempting to draw a weapon from his pocket. Much of what was said in regard to the last-mentioned testimony is applicable to this; and, in addition, we believe that, if said witness would testify as stated in the face of the record in this case, such evidence could not be regarded as probably true, as a number of persons went to the scene of the killing immediately, and no weapon was found on his person, nor about there, on the ground. In our opinion, the court correctly overruled the application for a continuance, and did not err in overruling the motion for a new trial on the grounds stated in appellant's motion for a continuance.

Appellant objects to the testimony of state's witness Brice, who stated that, in his judgment and belief, he recognized appellant at his house, with several of the Tate boys, about 11 o'clock, the night before the homicide, who came there to borrow a pistol. This testimony, in our opinion, was admissible; and the fact that the witness could not be absolutely certain in his indentification of appellant only went to the weight of his evidence, and not to its admissibility.

Appellant also insists that the court committed an error in permitting the state's witness Valentine Eberhard to state that he was in a position to see if deceased had anything in his hands during the time of the difficulty with appellant, and that he did not see anything. This witness had already related all that he had seen and heard between the parties at and during the time of the difficulty; had stated his position with reference to them, and their relative positions with reference to each other, together with all the surroundings; and we see no error in the court's permitting him to state that he was in such a position that he could see any weapon that the deceased may have had, and that he saw none. The same view expressed with reference to this testimony holds good to the objection made to the testimony of the witness Albert Satler, who was permitted to state that, if any weapons had been on the ground where the difficulty occurred, he would have seen them.

To our minds, clearly, the testimony offered by appellant to prove before the jury, by Tucker, that his wife was enceinte. and not able to attend court, was inadmissible. So far as we are advised by the record, no comment or criticism was made by the state as to the absence of said witness. No reason is shown why such testimony should have been adduced before the jury.

The appellant contends that the court erred in its charge on reasonable doubt between murder of the first and second degrees, and urges that the same, by its verbiage, was liable to strip the appellant of his rights under the charge on manslaughter. We have carefully examined the charge of the court in this regard, and it tells the jury, in as plain words as the English...