Webb v. State, 26967

• Citation: 160 Tex.Crim. 144,268 S.W.2d 136
• Decision Date: 19 May 1954
• Docket Number: No. 26967,26967
• Parties: WEBB v. STATE.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 136

268 S.W.2d 136

160 Tex.Crim. 144

WEBB v. STATE.

No. 26967.

Court of Criminal Appeals of Texas.

May 19, 1954.

Jack T. Niland, El Paso, for appellant.

William E. Clayton, Dist. Atty., Jack N. Fant, Asst. Dist. Atty., El Paso, Wesley Dice, State's Atty., Austin, for the State.

MORRISON, Judge.

The offense is murder; the punishment, 20 years.

The appellant was the operator of a street car which ran across the international border between Juarez, Mexico, and El Paso, Texas. The theory of the State was that the deceased, who had been drinking, asked the appellant for a transfer; that this request irritated the appellant, who hit the deceased over the head with a piece of the street car equipment called a 'switch bar,' causing his death; that the deceased was unarmed at the time and made no threatening gesture toward the appellant.

The appellant testified that when the deceased boarded the street car in Mexico he asked for a transfer, which was given him; that after arriving in El Paso the deceased demanded another transfer; that he told the deceased to look in his pocket; that the deceased again demanded a transfer, saying that he was a man of few words, and attacked him with a knife; and that he hit him in his own self-defense.

With this conflict in the evidence as a background, we must pass upon the alleged error of the court in refusing the appellant permission to reproduce the testimony of the witness Powell which was taken at an inquest held in connection with the death of the deceased. There can be no question of the materiality of Powell's testimony since the bill recites that he had testified that the deceased had an open knife in his hand which he held in a threatening manner toward the appellant. The State does not question that Powell's testimony was taken under such circumstances as to make it admissible. The court qualified the bill, and from this we learn that the court did not feel that it was sufficiently shown that Powell had permanently gone beyond the limits of the State or that the appellant had exercised diligence in order to secure the attendance of the witness.

We shall discuss each question in turn.

The offense was alleged to have been committed on February 23, 1953. The indictment was returned on May 8, and the trial was held in November. The appellant filed an affidavit, in compliance with the terms of Article 749, V.A.C.C.P., stating that Powell had removed beyond the limits of the State. The bill further recites that Mrs. Powell, the witness' mother, testified that she lived in Odessa; that her son left Texas on May 30, 1953, and went to Topeka, Kansas; and that when he left he had told her that he would probably not be back, as he intended to get work and stay up in that country. The court qualified the bill by certifying that Mrs. Powell also testified:

'That her son does call Odessa, Texas his home and although he worked in various other places from time to time, that on each occasion he would come back home. That the only information she has as to her son's present whereabouts was through his sister, and that her son, Tommy Powell, had no permanent residence in any place except where he calls home, which is Odessa, Texas.'

While it is true that there is much in the record which would have strengthened the bill but was not included therein, we have concluded from the face of the bill that the trial court abused his discretion in the premises.

Both the State and the appellant rely upon the recent decision of this Court in Cumpston v. State, 155 Tex.Cr.R. 385, 235 S.W.2d 446, 449. In that case the evidence was offered by the State, but the same rules apply in a case where the evidence is offered by the accused. In that case the witness had been gone three months, and there was no showing of any declaration of intention on the part of the witness when he left. In this case the witness had been gone five months, and it was shown that when he left he said that he probably would not be back. In the Cumpston case we summarized the rule as follows:

'* * * where the proof shows that the witness is temporarily absent from the State, as on a journey which in the ordinary course of things will be ended by return, the predicate is insufficient, but when the residence of the witness is shown as outside the State, and his return is indefinite, the prior testimony may be received.'

In the case before us the court further qualified the bill as follows:

'Further, the Court excluded the testimony of Tommy Powell on the grounds that there was no diligence shown to produce the witness, Tommy Powell, the evidence in the case being that the indictment was returned on the 8th day of May, and that the witness, Tommy Powell, was at what is called his home at Odessa, Texas, until the 30th day of May and could have been...