Wall v. State

• Decision Date: 01 January 1857
• Citation: 18 Tex. 682
• Parties: DANIEL M. WALL v. THE STATE.
• Court: Texas Supreme Court

18 Tex. 682

DANIEL M. WALL

v.THE STATE.

Supreme Court of Texas.

1857.

If the defendant, in a criminal case, would claim a continuance as a right under the constitution, to enable him to have process to compel the attendance of witnesses in his behalf, he must apply immediately or show good cause why he failed to do so. (Of course the circumstances under which the defendant is forced to trial, will be taken into consideration on the question whether there is any cause to believe he did not have a fair trial.)

Mere threats, not accompanied by some act, done at the time of the homicide, which manifested an intention to execute such threats, are no extenuation of the crime of murder.

A first application for a continuance, on the ground of the absence of a witness, should exclude the conclusion that there are other witnesses whose testimony might have been obtained, by whom the same facts could be proved.

A defendant in a criminal case is not entitled to demand a postponement of the trial, as a matter of legal right, in order to afford him an opportunity of finding persons who would join him in an affidavit to obtain a change of venue.

The case of Gehrke v. The State, 13 Tex. 568, and White v. The State, 16 Tex. 206, in which this court decided that an indictment for murder, in the common law form, charging the offense to have been committed feloniously, wilfully and of his malice aforethought, was sufficient to sustain a conviction of murder in the first degree, reviewed and approved.

The statute which was in force when the killing in this case and the cases of Gehrke v. The State, and White v. The State took place, provided “that all murder committed by poison, starving, torture or other premeditated and deliberate killing, or committed in the perpetration or in the attempt at the perpetration of arson, rape, robbery or burglary, is murder in the first degree; and all murder not of the first degree is of the second degree.”

The general principle is admitted, that if the law which created the offense is repealed, after the repealing law takes effect, no further proceeding can be taken under the repealed law to enforce the punishment.

The principle is held to apply as well to the proceeding upon the appeal in the appellate court, as to the court having original cognizance of the offense, and as well where the appeal took effect after the removal of the cause to the appellate court, as before.

But the general principle is modified by the penal code, which, in this instance, is the repealing law.

The penal code provides that no offense committed prior to the taking effect thereof, shall be affected by the repeal therein, of existing laws, but punishment shall take place as if the laws repealed had remained in force; except that where the punishment shall have been mitigated by the code, its provisions shall apply to and control any judgment to be pronounced after its taking effect, for any offense theretofore committed, unless the defendant elect the former punishment.

Murder, under the previous statute, was divided into murder in the first degree and murder in the second degree, as stated in the sixth paragraph of this synopsis, the former punishable with death, the latter with confinement to hard labor in the penitentiary for a term of years, not less than three nor more than fifteen, to be assessed by the jury; under the penal code, murder is punished according to the degree of atrocity, or the circumstances of extenuation in each particular case, by death, solitary confinement in the penitentiary for life, or confinement in the penitentiary to labor for a term of years, not less than three nor more than fifteen, the jury to find the punishment directly by their verdict: Held, that the punishment for murder was not mitigated by the latter law.

Appeal from Liberty. Tried below before the Hon. Peter W. Gray.

Indictment returned into court May 30th, 1856, against Daniel M. Wall, appellant, for murder of Middleton A. Praytor. The indictment was in the common law form, not using the words “premeditated and deliberate.” The killing had taken place after dinner of the 29th May, the day before the indictment was found; and the defendant had been pursued and immediately arrested. A copy of the indictment was delivered to the defendant by the sheriff, the same day on which it was found. June 2d, special venire summoned, and copy and list of jurors delivered to defendant; same day, it appearing that defendant was unable to employ counsel, at his request two members of the bar were appointed to defend him. June 3d, the case was called for trial, and defendant moved the court to grant a continuance, upon his affidavit as follows: In this case the defendant comes and makes oath that he cannot go safely to trial for want of the testimony of James T. Kelly, by whom he expects to prove that M. A. Praytor made threats against the life of this affiant; that said Kelly has not been subpœnaed, because the indictment has been so recently found that affiant has been unable to have it done. Affiant also moves for a continuance in order to give him an opportunity to find those who will join with him in an oath for a change of venue, as he believes that he cannot have justice done him in Liberty county, and he has had so short a time since the finding of the indictment, and, owing to his confinement in prison, he has not had an opportunity to make inquiry and to find and converse with those who are friendly to him, and upon whose opinion he can rely. Affiant also believes that, by delaying the trial, he can find testimony that will be of benefit to him on the trial of this cause--Sworn to, etc.

Motion for continuance overruled; trial same day; evidence as follows.

C. Devore, examined on the part of the state, says: On the 29th of May, Wall came round the corner of Gedry's house, on the porch of which witness was lying. Wall asked witness where Praytor was; witness pointed Praytor out to Wall; Praytor was standing near a house some ____ yards distant; Wall said to witness, he wanted Praytor to pay him, Wall, some money he, Praytor, owed Wall; Wall then walked up to where Praytor stood leaning up against the house holding his horse; witness thinks Wall shook hands with Praytor; Wall's body was between witness and Praytor, with his (Wall's) back to witness, and from the position and motions of Wall's body, witness thought he was shaking hands; Wall stepped back a step or two and made a thrust, as with a knife; witness did not see a knife in Wall's hands at the time; Wall then started off, and F. Rhoads exclaimed to witness, “Let's catch the damned rascal,” or “damned villain;” witness saw Praytor at the time Wall made the thrust, place his hand to his side, and exclaim, “I am killed,” “I am killed,” several times; witness, together with F. Rhoads and others, pursued Wall, who ran off; but at the time witness came up with Wall he was in the custody of the sheriff; witness saw Praytor afterwards immediately at Gedry's house; Praytor had a wound in the abdomen, below the short ribs on the left side, having the appearance of being made with a knife; Praytor was vomiting blood and very pale; Praytor was struck a short time after dinner on the 29th of May, 1856, and died about dusk on the same day, as witness thinks, in consequence of the wound; it occurred at Gedry's in the town and county of Liberty.

Cross-examined: The time Wall called at Gedry's was after dinner; witness saw Wall when he met Praytor; the time between the meeting of Wall with Praytor and the thrust was very short, probably ten seconds.

B. F. Rhoads, witness for the state, says: On the 29th of May witness was in company with Praytor and Smith at a little store; Praytor was holding his horse, standing outside of the store door; saw Wall coming; Wall walked up to where Rhoads was and shook hands with him; Wall walked to Praytor and said, ““You are here, are you?” Praytor said “Yes;” they shook hands, and Wall stepped back, and after stepping back, Wall remarked, “I should like you to pay we what you owe me;” Praytor said, “I do not owe you;” Wall said, “You owe me (the amount witness did not recollect, but between twenty and thirty dollars) dollars;” Praytor said, “It is a damned lie,” or “you are a damned liar;” Wall then struck Praytor with the knife exhibited to the jury; it is what is called a hack knife; as Wall drew the knife back, Praytor exclaimed, “I am killed,” or “I am dead,” several times; Wall immediately fled; witness got a horse and gun after some little delay, and pursued and overtook Wall in about a half mile; witness presented his gun and told Wall to stand, who replied that he gave himself up; by this time the sheriff arrived and took Wall into custody; Wall had with him the same knife (in the scabbard) with which he struck Praytor; the fight occurred about dinner time, on the 29th of May, in the county of Liberty, and Praytor died the same day in the evening; the knife was exhibited to the jury, and identified by the witness as being the same knife with which the blow was struck; the knife was what is usually called a hack knife, and about twelve inches in the blade; Wall and Praytor were between four and seven feet apart when Praytor called Wall a damned liar; Wall advanced to Praytor in striking the blow.

Cross-examined: Wall met witness and shook hands with him in his usual manner; there was no excitement in Wall, he appearing as usual; Wall accosted Praytor in a mild and friendly manner, as it appeared to witness; at the time Praytar called Wall a damned liar, he, Praytor, drew himself up in an erect attitude; witness could not say Praytor advanced towards Wall; Wall was standing between Praytor and witness.

Wiley Smith examined for the state: witness was standing talking with Rhoads when Wall (who was a stranger to witness) came up and spoke to Rhoads. Wall then went to Praytor and asked him (Praytor) to pay him (Wall) what he...