White v. State

• Decision Date: 18 January 1922
• Docket Number: (No. 6432.)
• Citation: 236 S.W. 745
• Parties: WHITE et al. v. STATE.
• Court: Texas Court of Criminal Appeals

236 S.W. 745

WHITE et al. v. STATE.

(No. 6432.)

Court of Criminal Appeals of Texas.

January 18, 1922.

Appeal from District Court, Brazos County; W. C. Davis, Judge.

Onie White and another were convicted of murder and appeal. Reversed and remanded.

See, also, 88 Tex. Cr. R. 159, 225 S. W. 511.

H. S. Morehead, of Franklin, Henderson & Ranson, of Bryan, and Garrison, Pollard & Berry, of Houston, for appellants.

John M. Mathis, of Houston, and R. G. Storey, Asst. Atty. Gen., for the State.

LATTIMORE, J.

Appellants were convicted in the district court of Brazos county, and their punishment fixed at confinement in the penitentiary for a period of 20 years.

Appellants were jointly charged with the murder of Dr. B. Harrison. The case originated in Grimes county in 1918, and was transferred to Harris county, and subsequently to Brazos county, where the instant trial was had. When the case was called for trial appellants presented their motion for continuance, the overruling of which is here presented as error. Continuance was sought because of the absence of Mrs. Mabel White, wife of appellant Onie White, it being set up that at the time of making such application the witness was in Eastland county and in such physical condition as that she could not attend the trial. A sworn certificate of her physician, of date March 7, 1921, was attached to said application, certifying that Mrs. White was seven months advanced in pregnancy, and that because of certain complications named she should not undertake a long railroad journey nor be subjected to a severe mental strain. The application was controverted by the state and certain affidavits were attached, only one of which relates to the testimony of Mrs. White. Dr. B. Harrison was killed in Grimes county, Tex., on January 8, 1918. The killing took place at a point near the house occupied by appellant Onie White and his family. Onie White and his brother, a codefendant, Horace White, and deceased were the only parties immediately present at the homicide. The state introduced three eyewitnesses who stated they were near enough to the scene to witness the killing. For appellants, and beside themselves, their father was their only eyewitness, and he stated that he was 500 or 600 yards from the scene of the difficulty and saw a part of same.

There seems no controversy of the fact that Mrs. Mabel White had been duly summoned as a witness, and we are of the opinion that the certificate of the physician sufficiently showed her inability to be present. The application sets up that Mrs. White was at her home at the time of the homicide, about 50 yards distant, and that she saw most, if not all, of the fatal difficulty, and facts are detailed which, if true, would make her testimony very material in support of the theory that the shooting was in self-defense or defense of a brother. Said application was overruled. To their motion for new trial appellants attached the affidavit of Mrs. White, in which she says that, if present, she would have testified to facts which appear identical with those contained in the application. The motion for new trial was denied, and the error here set up is predicated on such action.

The question is not a new one. Our opinions uniformly agree that, if diligence is shown and the absent testimony appear material and probably true, and is of such character as that same might have produced a different result, a new trial should be granted. Many of our decisions, apparently beginning with Baines v. State, 42 Tex. Cr. R. 510, 61 S. W. 119, 312, hold that, if the absent witness make affidavit that he would have sworn, if present, to the facts stated in the application, and such affidavit be attached to the motion for new trial, the question of the probable truth of such testimony is no longer one for the decision of the trial court. Baines v. State, 42 Tex. Cr. R. 510, 61 S. W. 119, 312; Freeman v. State, 75 S. W. R. 505; Lawhorn v. State, 46 Tex. Cr. R. 555, 81 S. W. 714; Long v. State, 48 Tex. Cr. R. 434, 88 S. W. 809; Thomas v. State, 51 Tex. Cr. R. 329, 101 S. W. 797; McMillan v State, 66 Tex. Cr. R. 288, 146 S. W. 1190; Rhea v. State, 67 Tex. Cr. R. 198, 148 S. W. 578; Valigura v. State, 68 Tex. Cr. R. 12, 150 S. W. 778; Mathason v. State, 89 Tex. Cr. R. 136, 229 S. W. 548. This, however, should not be understood to necessitate a new trial unless the materiality of such absent testimony be such as that, if true, it would likely produce a different result upon another trial. Branch's Ann. P. C. § 338, and authorities cited.

Nor would it call for the granting of a new trial when there was other evidence cumulative of same present or available to appellant so that it reasonably appeared that no injury resulted from the absence of such testimony. The whole purpose of any trial ought to be the attainment of justice; and this is the supposed result of following where the signboard of the law points the way.

The legal and reasonable presumption in every case is that the accused is innocent of crime until a contrary judgment by an impartial tribunal is rendered in a proceeding wherein each party has been accorded every fair chance to present all the facts bearing on the case. If one accused of crime...