Thurmond v. State

• Decision Date: 16 March 1889
• Citation: 11 S.W. 451
• Parties: THURMOND <I>v.</I> STATE.
• Court: Texas Court of Appeals

11 S.W. 451

THURMONDv.

STATE.

Court of Appeals of Texas.

March 16, 1889.

Appeal from district court, De Witt county; H. C. PLEASANTS, Judge.

A. P. Thurmond appeals from a conviction for murder in the second degree. Appellant was convicted on the testimony of one Owens and one Brown. Owens testified that he and defendant pursued one Sloan, an escaped prisoner, to rearrest him; the witness going at the instance and request of defendant. When they overtook Sloan, defendant, over the protest of witness, fired upon and killed him. This witness declared his innocence of any complicity in the act of the defendant. On his cross-examination he admitted that both he and defendant, when told that night of the killing of Sloan, expressed surprise, and doubt that the information was true, and that he testified on the inquest next day that he knew nothing whatever about the killing of Sloan.

A. S. Thurmond, for appellant. Asst. Atty. Gen. Davidson, for the State.

HURT, J.

This conviction is for murder of the second degree, with 15 years' imprisonment in the penitentiary assessed as punishment. The indictment was presented in the district court of Victoria county. That court, of its own motion, sent the case to De Witt county. After this order was made, but on the same day, appellant moved to vacate it, and requested the court to send the case to some other county, upon the ground that there existed in De Witt county a combination of influential citizens against him, etc. This motion was overruled, and defendant excepted. In this there was no error. The change of venue being made by the court on its own motion, and not at the request of the appellant, when the cause was called for trial in De Witt county, if there existed any ground for a change of venue from that county appellant could bring it forward. He was not deprived of this right by the order made in the first instance.

The witness Brown testified to confessions of appellant. The state introduced several witnesses, who swore that his reputation for truth was good. Appellant objected, on the ground that the witnesses did not qualify themselves to speak to his reputation, etc. The facts were that the sustaining witnesses for years lived in the same neighborhood with Brown, and so lived until 18 months before this trial, at which time Brown moved to Victoria. Under these facts, the witnesses were competent to speak to the reputation of Brown, notwithstanding he had moved out of their neighborhood, and had been in Victoria for 18 months. We also hold that Wertheimer, Cahill, and Ed. and Louis Sitterlee show themselves competent to speak to the character of Albrecht.

Appellant's sixth assignment is that the court erred in failing to instruct the jury upon the law governing impeaching testimony. We do not think, unless it be under extraordinary and peculiar circumstances, that it would be necessary, or even proper, for the court to charge the jury upon this matter. Such a rule was announced in Henderson's Case, 1 Tex. App. 432, but the rule has never been enforced indiscriminately, and its correctness as a general one is, to say the least of it, questioned in Rider's Case, 26 Tex. App. 334, 9 S. W. Rep. 688.

The witness Albrecht swore that he saw the killing;...