Wallace v. State

• Decision Date: 08 June 1904
• Citation: 81 S.W. 966
• Parties: WALLACE v. STATE.
• Court: Texas Court of Criminal Appeals

81 S.W. 966

WALLACE v. STATE.

Court of Criminal Appeals of Texas.

June 8, 1904.

Appeal from District Court, Franklin County; P. A. Turner, Judge.

T. C. Wallace was convicted of murder in the first degree, and appeals. Reversed.

J. F. Jones and J. H. Beavers, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of murder in the first degree, and his punishment assessed at death, and prosecutes this appeal.

The first error assigned is the action of the court overruling appellant's motion to change the venue. Several bills are presented to this action of the court, but all of these appear to have been presented and approved by the judge after the adjournment of the court. Appellant evidently assumed that he had a right to file his bills on this subject under the 20-day order. This question was before this court in Lax v. State, 79 S. W. 578, and we there held that the act of the Twenty-Eighth Legislature (page 32, c. 25) allowing bills of exception to be filed 20 days after the adjournment of the term does not relate to or affect article 621, Code Cr. Proc. 1895, regulating bills of exception on the action of the court overruling the motion for change of venue.

Appellant assigns as error the action of the court overruling his motion for continuance, and in overruling his motion for new trial based on this ground. Appellant based his motion to continue on account of the absence of Mrs. Minnie Dougle, said to reside in Lamar county; W. W. Smith, of Upshur county; Mrs. Margaret Dyer, of Franklin county; Mrs. Bill Martin; and I. Sparks, said to reside in Bowie county. In connection with appellant's diligence, he recites the fact that the case was brought to trial five days after the presentation of the indictment, and he shows that, on the next day after the indictment was presented, he had process issued for said witnesses; that, with reference to the witness Mrs. Dougle, the process had not been returned at the time of the trial; that W. W. Smith had been summoned by the sheriff of Upshur county, but had not put in an appearance; that Mrs. Dyer lived in Franklin county, about 12 miles from the county seat; and she had been served with process, but was not present. It occurs to us that the diligence here used was sufficient. In the view we take of these witnesses and the testimony expected to be proved by them, we think that each of them was material on behalf of appellant. This was a case in which the murder alleged to have been committed by appellant occurred some five years before the trial, and his connection therewith depended almost entirely on circumstantial evidence. As to the witness Sparks, who was not served, the state introduced a number of witnesses showing appellant's proximity to the scene of the homicide on the Sunday evening when it occurred; and it was alleged that he expected to prove by said witness on that day, and about the time when the homicide should have occurred, that he saw appellant near Mt. Vernon—the killing having occurred 12 or 13 miles north of said town. The court, in connection with his action as to this witness, says that "Sparks was an irresponsible negro, and had not been in Franklin county for several years; that he was a transient negro. The fact of his responsibility, if by this is meant his veracity, was a question for the jury, and not for the court, and there is no suggestion that appellant knew he was not in Franklin county. As to Mrs. Minnie Dougle, appellant shows that she was the daughter of Mrs. Johnson, who testified in the case, and who was at the time of the homicide the wife of deceased, Austin. The state proved by this witness, Mrs. Johnson, as shown by the application, that she was an accomplice with the murderers of her husband, and, as an important fact against appellant, she testified that she was at home on the Sunday evening of the homicide, and that her daughter, who was a child some 12 years old — now Mrs. Minnie Dougle — was also at home; that after the homicide appellant came to her house, and told her that "your man is down yonder. The work is done. The man is down yonder between the fields on the trail. You know me by Carbough" —Carbough being one of the conspirators. Appellant desired the witness Mrs. Minnie Dougle to rebut the testimony of Mrs. Austin. He alleged that he expected to prove by said absent witness that she was at home with her mother on that day, and that appellant did not come there on that evening. The court, in explanation of his action in overruling the motion as to this witness, says "that she has not lived in Lamar county for three years," but there is no statement that appellant knew the fact that she was not at the time a resident of Lamar county. He had been confined in jail after the examining trial for some months before the presentation of the indictment, and it is not shown that he could have ascertained within the limited time allowed him the whereabouts of this witness.

Appellant states in his application that he expected to show by the witness Smith that state's witness Newsome would identify appellant by the clothing he wore on the Sunday night of the homicide, and that the witness Smith would testify to circumstances connected with said clothing tending to show that the witness Newsome was shown the clothes of appellant after that night, which enabled him to speak with reference to their kind and color; thus tending to affect the evidence of the witness Newsome in identifying appellant. We think this testimony was of a material character, and, notwithstanding the court says he was an unreliable criminal, and that the jailer would state that the fact that he proposed to testify was not true, still this was a matter for the jury.

We also believe that the testimony of Mrs. Margaret Dyer and Mrs. Bill Martin is also shown by the application to have been of a material character. As stated above, appellant was forced into trial only five days after the indictment was presented against him, and he appears to have used all reasonable diligence to get said witnesses; and each of them, as shown in the application, will testify to circumstances on the development of the state's case shown to have been material in his defense, and he was entitled to their presence. The court should have either postponed the case, or have continued it, in order to afford him an opportunity to secure their attendance.

We do not deem it necessary to discuss the action of the court which is assigned as error in the impanelment of the jury. While we have been unable to discover any error therein, the questions are not likely to occur again.

The state was permitted to prove by the witness Reddy Martin, as to Mrs. Ella Johnson, née Mrs. Austin (wife of deceased at the time of his death), that he saw her on Monday (deceased being missed on Sunday, the day before), and she then stated to him, "If you go to hunt deceased, if I were in your place, and did go, I would go the trail from the lake to the field." He went that way. This conversation was objected to by defendant because he was not present when it occurred, and because the killing, if any, had already occurred, and said conversation was calculated to prejudice the jury and injure the rights of the defendant. If it be conceded that this bill fairly raises the question presented by appellant in his brief, which is doubtful, we do not believe the testimony was admissible. The record discloses that Mrs. Johnson, who was at the time of the homicide Mrs. Austin, wife of deceased, had conspired with one A. J. Carbough to kill her husband, in order that she might marry Carbough, and that Carbough procured appellant to commit the homicide. The state's case as to the particulars of the conspiracy and the scope thereof mainly depended on the evidence of Mrs. Johnson. It is contended by the state that the above testimony—that is, the statement of Mrs. Johnson to witness Martin—would be a fact corroborative of her evidence, and so on that account was admissible, inasmuch as the body of the deceased was found where she told Martin to look for it, which would show knowledge on her part, which the record shows she must have derived from appellant, that the homicide was committed where she told Martin he would likely find the body. It occurs to us that on this very account the testimony was not admissible. It was tantamount, under the facts in this record, to the witness Martin testifying before the jury that Mrs. Johnson told him appellant had told her (which the record discloses he did) that he had slain deceased at the point where the body would be found. This was an indirect way of getting before the jury hearsay testimony of corroboration to the injury of appellant.

H. G. Haines was introduced as a witness for the state, and the defendant claims that he was not permitted to prove on cross-examination the impression produced on him from what Austin (deceased) and Carbough said in his presence as to their friendly relations. In this connection it is said that the witness did not remember the language used between the parties. It does not occur to us that this would authorize the introduction in evidence of the impression produced on the witness, and the court did not err in excluding it.

Appellant reserved the following bill of exceptions: "While witness Mrs. Ella Johnson was on the witness stand, she was permitted to testify to conversations and transactions had between herself and H. J. Carbough in words and substance as follows: `H. J. Carbough tried to get me to take the life of my husband some time during April of the year that he was killed. He wanted me to take the life of my husband so that he and I could marry. That was the purpose of getting rid of my husband. I refused to do so. This was in April. He never said any more about it for about a month or six weeks—in May or June of 1898. He then said in this other conversation that he...