Treadway v. State

• Decision Date: 07 February 1912
• Citation: 144 S.W. 655
• Parties: TREADWAY v. STATE.
• Court: Texas Court of Criminal Appeals

Page 655

144 S.W. 655

TREADWAY v. STATE.

Court of Criminal Appeals of Texas.

February 7, 1912.

Rehearing Denied March 6, 1912.

Appeal from District Court, Shelby County; James I. Perkins, Judge.

T. S. Treadway was convicted of crime and he appeals. Affirmed.

V. E. Middlebrook, King & King, and Anderson & Davis, for appellant. W. B. O'Quinn, Dist. Atty., Blount & Strong, and C. E. Lane, Asst. Atty. Gen., for the State.

PRENDERGAST, J.

On September 15, 1910, the grand jury of Nacogdoches county indicted the appellant for the murder of Eli Box on May 2, 1910.

Some time in October, 1910, he was tried in the district court of Nacogdoches county, or rather there was a mistrial, because the jury failed to agree, and were properly discharged by the court on that account. Prior to said mistrial, the appellant made a motion to change the venue, which was contested by the state and the evidence heard thereon by the judge, who denied the appellant's motion.

The record in this case shows that it (the record) was applied for by the appellant's attorneys on March 11, 1911. The trial from which this appeal was taken began on March 2, 1911, and continued until at least some time on March 7, 1911. The record proper, and original statement of facts, was filed in this court on May 24, 1911. There appears with the record a certified copy of what purports to be a statement of facts heard by the judge below on appellant's motion for change of venue. It seems to have been applied for by appellant's attorneys on June 1, 1911, and was not filed in this court until June 14, 1911. It is separate from, and not a part of, the record proper in the case. There is no bill of exceptions anywhere in the record containing this purported statement of facts. Article 621, C. C. P., prohibits the order of the judge granting or refusing a change of venue from being revised on appeal, unless the facts upon which the same was based are presented in a bill of exceptions prepared, signed, approved, and filed at the term of court at which the order was made. It is needless to cite the cases decided by this court under the said article, but they all conform thereto. Therefore the manner in which this matter is presented, it cannot be considered by us, nor can we consider, for any purpose, the purported statement of facts filed herein on that subject.

Besides what is stated above, it appears from the record that on October 19, 1910, the judge of the district court of Nacogdoches county on his own motion, as he clearly had the right to do under article 613, C. C. P., changed the venue from Nacogdoches to Shelby county, which was one of the counties within his district, and recited fully in his order the grounds — which were amply sufficient — for such change of venue. This order is full and complete, and shows that the appellant was personally present, as was his counsel and the district attorney, and no exception or objection appears therein. However, there is a bill of exceptions in the record now which shows that at the time the court entered the order changing the venue appellant objected to the court's order changing the venue from Nacogdoches to Shelby county at the time it was made, because, in substance, the county seat of Shelby county was further from the county seat of Nacogdoches county than some of the other adjoining counties in the same judicial district, and that Center, the county seat of Shelby county, was inaccessible and inconvenient to reach because of the railroad facilities and train schedules, and that the same prejudice against appellant existed in Shelby county that had existed in Nacogdoches county, caused by the publicity of the charges against appellant and the trial of this cause in Nacogdoches county, and also because appellant had once before been tried in Shelby county on account of proceedings in a divorce suit of his therein, and that some of the witnesses therein had been indicted and convicted of perjury, and he himself had been indicted and tried for subornation of perjury in the same case, and that these objections did not obtain in some of the other adjoining counties to Nacogdoches. The court in allowing this bill qualified it by stating that he did not approve as correct the appellant's statements therein as to the schedules upon which trains are run, and the various connections of the trains and the distances between points as set out therein, and he stated that it was not known that the same schedules would be in effect when the case would be called for trial in Shelby county. And "it was shown that the divorce suit and prosecution of defendant's witnesses for perjury occurred some 14 years ago, and that, if there was an indictment of defendant growing out of the transaction, it was dismissed many years ago, and it was shown to the satisfaction of the court that the attention the divorce suit, and its incidents attracted, was local to the neighborhood where the parties then lived, and that from lapse of time this had been mostly, if not wholly, forgotten."

By another bill in this connection, it was shown that, when the case was called for trial at this time when it was tried, the appellant objected to announcing therein because the court had erroneously changed the venue from Nacogdoches to Shelby county, and requested that the case be transferred back from Shelby to Nacogdoches for the reasons shown by defendant's bill of exceptions above noted; that the court refused this, and required appellant to announce, to which he excepted. In allowing this bill the court qualified it by stating "that no motion or affidavit was made to change the venue — a mere verbal suggestion by counsel for defendant." The way this matter is presented no reversible error whatever is shown by the court of his own motion changing the venue from Nacogdoches to Shelby county, as he did; nor by refusing to retransfer the case from Shelby to Nacogdoches county, nor in requiring the appellant to announce under the circumstances. When the case was called for trial, appellant made a motion to continue it, which was his second application to continue, on account of the absence of ten witnesses, naming them, and giving their residences. In his motion he states the diligence used by him to procure their attendance, and states that he exhibits to the court each and all of the process hereinabove referred to by him in his application for its inspection and as a part of his motion for continuance. This process nowhere appears in the record. The motion shows the testimony the appellant expected to prove by each of said witnesses. Briefly, what he expected to prove by Mayfield, Long, and Escabar was that they were his section hands, and were present when the killing occurred; that deceased was approaching him while he was sitting on the hand car with his back to deceased, and that deceased had his hand in his bosom; that appellant called to him and told him to stop and not come up to him; that he then got his gun and again demanded of deceased to stop, saying, if he did not, he would have to shoot him, and then instantly fired; that they saw no change in deceased's position when appellant was requesting him to stop; that they could see deceased only from his waist up; that they know appellant distinctly called deceased to stop twice before appellant got his gun and once after he got it. The court overruled the motion. Neither the application nor the record elsewhere shows that the appellant thereafter applied for or had issued any other process to procure the attendance of any of said witnesses. As stated above, the case was called for trial on March 2, 1911. The trial continued from that time until some time during March 7 1911. In allowing the bill to the overruling of this motion the court qualified it by stating "that most all witnesses named appeared before evidence was closed, and, as explained by the evidence and proceedings, on motion for new trial and contest of same by state. See record of same."

There appears with the papers in this cause a separate document which appears to be an original statement of facts which was heard by the court below on hearing the appellant's motion for new trial. It was prepared by the court stenographer, and certified to by him on April 11, 1911, and agreed to by the court and all the parties thereto. It was filed in the court below on May 15, 1911. That term of court, as shown by the record, adjourned on March 14, 1911. It has been uniformly held by this court that such a statement of facts must be filed during the term of the court at which the trial occurred, and that the statutes permitting the statement of facts on the main trial to be filed after term time did not apply to such statement of facts on the hearing of the motion for new trial. Probest v. State, 60 Tex. Cr. R. 608, 133 S. W. 263, and cases therein cited. So that this court cannot and does not consider the said purported statement of facts on the motion for new trial.

In this connection, the record shows that the overruling of the said motion for a continuance was made one of the grounds of the motion for new trial, and that said motion for new trial was contested by the state, and particularly on this point. Among other grounds urged by the state in said contest was that the appellant was able to prove, and did prove, by other witnesses, in substance, the same matters which he alleged he could prove in said motion for a continuance by the witnesses Ford Parmelly, Pink Grayson, and Mrs. Pink Grayson, and because the witnesses Ed. Long and Joe Escabar, who were alleged to have been present at the time of the killing, would not have testified to the facts set up in said motion for continuance, but if they had been present, and if they had so testified, said testimony was not probably true, and the state attached as an exhibit to and a part of said contest the affidavit of said Long, which was made on May 4, 1910, fully detailing...