Weathersby v. State

• Decision Date: 17 December 1890
• Citation: 15 S.W. 823
• Parties: WEATHERSBY v. STATE.
• Court: Texas Court of Appeals

15 S.W. 823

WEATHERSBY v. STATE.

Court of Appeals of Texas.

December 17, 1890.

Appeal from district court, Smith county; F. J. McCORD, Judge.

Indictment for murder. The indictment charged defendant, Weathersby, and his brother-in-law, W. T. S. Keller, jointly, with the murder of Alexander Pope. A severance being awarded, defendant was placed upon trial. His trial resulted in his conviction in the second degree, and a sentence for a term of five years in the penitentiary. The evidence shows that the difficulty in which the deceased was killed and his brother, State Senator W. H. Pope, and Maj. James Turner were wounded, occurred in the district court room, in the city of Marshall, Harrison county, Tex., on the 6th day of December, 1889. Court was in session at the time, and a motion was being argued by deceased in a case in which W. T. S. Keller was plaintiff, and deceased, together with his brother, W. H. Pope, and Maj. Turner were counsel for the defendant. Defendant, Weathersby, was present as a witness for Keller. After deceased finished his argument, W. H. Pope addressed the court, saying: "We do not mean fraud on the part of the attorneys, but on the part of the plaintiff himself." Plaintiff (Keller) replied, "That is false." W. H. Pope thereupon threw a walking stick at Keller. The evidence tended to show that at this point defendant, Weathersby, drew a revolver, and fired three shots, wounding W. H. Pope and Maj. Turner. It also appeared that about the same time Keller fired his revolvers and killed deceased, Alexander Pope. Weathersby then left the court-house About 15 or 20 seconds after the last shot was fired W. H. Pope said to Keller, who was still in the court-house, and under arrest: "You have murdered Maj. Turner, and my brother, shot me all to pieces, and brought your ruffianly brother-in-law here to do it;" and made some other denunciatory remarks to him. Defendant, Weathersby, was not present at the time, but was soon afterwards arrested, and brought back into the courthouse. Maj. Turner then said to him: "You tried to murder me, but you missed it. You tried to kill all of us." Defendant replied: "You are a God damned lying, one-legged son of a bitch." One of the prosecuting counsel in his argument to the jury used the following language: "Gentlemen, you may acquit this defendant, — acquit him, and these sirens [meaning defendant's attorneys] will sing a very different song to the jury in the other cases against this defendant and Keller. They will argue that the acquittal of Weathersby in this case broke the back of the prosecution, and these defendants [Keller and Weathersby] will go out of the court-house unwhipped of justice, and this dastardly murder and this whole bloody tragedy will be unavenged by the law." The county attorney in his argument used the following language: "Gentlemen, this is the most damnable conspiracy and the most cowardly murder in the annals of Texas crime, and I thank my God that such foul and cowardly assassinations do not take place in Smith county, but have to be brought here from other counties for trial." Pen. Code Tex. art. 593, provides: "Manslaughter is voluntary homicide, committed under the immediate influence of sudden passion, arising from an adequate cause, but neither justified nor excused by law." Article 594 provides. "By the expression, `under the immediate influence of sudden passion,' is meant (1) that the provocation must arise at the time of the commission of the offense, and that the passion is not the result of a former provocation. * * *" Code Crim. Proc. Tex. art. 560, subd. 6, provides that should an application for a continuance be overruled, and the defendant convicted, if it appear upon the trial that the evidence of the witness or witnesses, named in the application, was of a material character, and that the facts set forth in said application were probably true, a new trial should be granted, and the cause continued for the term, or postponed to a future day of the same term."

W. P. McLean, W. T. Armistead, W. R. Camp, and H. Chilton, for appellant. Asst. Atty. Gen. Davidson, for the State.

WILLSON, J.

It is made to appear by a bill of exception reserved by the defendant that, after the special venire had been exhausted without completing the jury, the defendant moved the court to have the jury for the week, as selected by the jury commissioners, called and tried as jurors before the sheriff should be authorized to summon talesmen from which to complete the panel. There were seven of said jurors for the week present who were not on the special venire already exhausted. The court refused said motion, and ordered the sheriff to summon talesmen from the body of the county, which order was obeyed by the sheriff, and from the talesmen so summoned the panel was completed. It does not appear from the bill of exception that the jurors selected for the week by the jury commissioners were not summoned as talesmen by the sheriff, and that the jury was not completed from said regular jurors. To entitle the defendant to complain of the action of the court overruling his motion, although said action might be erroneous, he would have to show, further, that because of said action he was deprived of a legal right; that is, if he had a legal right to select jurors from the jury selected by the jury commissioners, he would have to show that this right was not accorded him in fact, and that by the action of the court a juror or jurors were forced upon him who had not been selected by the jury commissioners. We hold, therefore, that if it was the defendant's right to select from the regular jurors before being required to select from talesmen not regular jurors, his bill of exception fails to show that he was deprived of his right, and therefore fails to show any reversible error.

But we are of the opinion that the court did not err in refusing the defendants' motion. There are decisions of this court holding to the contrary; that is, holding that when a special venire has been exhausted without completing the panel the regular jurors selected by the jury commissioners should be exhausted before resorting to talesmen summoned by the sheriff. Cahn v. State, 27 Tex. App. 709, 11 S. W. Rep. 723; Weaver v. State, 19 Tex. App. 547. These decisions follow the decision in Roberts v. State, 5 Tex. App. 141. That decision was made prior to the revision of the Code, when there was no statutory provision directing the procedure after the special venire had been exhausted. Article 612 of the Code of Criminal Procedure was added by the revisers, and it provides as follows: "When from any cause there is a failure to select a jury from those who have been summoned upon the special venire, the court shall order the sheriff to summon any number of persons that it may deem advisable for the formation of the jury." This article does not require that the persons to be summoned shall be those who have been selected as jurors by the jury commissioners. It contains no such qualification, either expressly or impliedly. It is precisely applicable to the state of case with which the trial judge was confronted, and his ruling was plainly in accord with it. In the Weaver and Cahn Cases, supra, we were doubtless misled by the Roberts Case, and did not have our attention called to article 612. We are now satisfied that upon the question under consideration our decisions in the Weaver and Cahn Cases are wrong, and they are overruled.

With respect to the testimony detailing W. H. Pope's statements made to Keller, as recited in defendant's bill of exception No. 2, we are of the opinion that it was competent and admissible. Pope's statements were in our opinion res gestæ of the homicide. They were made in a few seconds after the shooting had ceased, and under such circumstances as constituted them a part of the transaction. Whatever is said by any party to the transaction at the time of the transaction is a part of the transaction itself, and is admissible in evidence as res...