Wilkerson v. State
| Decision Date | 19 December 1899 |
| Citation | 57 S.W. 956 |
| Parties | WILKERSON v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from district court, Runnels county; J. O. Woodward, Judge.
Noah Wilkerson was convicted of murder in the first degree, and he appeals. Affirmed.
Jenkins & McCartney, John I. Guion, W. R. Spencer, J. K. Baker, and J. M. Hurt, for appellant. Sims & Snodgrass and Robt. A. John, Asst. Atty. Gen., for the State.
The indictment against appellant in the first count charges him with the offense of accomplice to murder. He was convicted of murder in the first degree, and his punishment assessed at confinement in the penitentiary for life.
The proof, in substance, is as follows: Ben Slate, on or about the 24th of August, 1898, in Runnels county, was sleeping by the roadside at night, and Randal Eldred (commonly called and known as "Tump Eldred") came upon him and shot him in the head, from which wound he died. The evidence of the accomplice, Tump Eldred, which evidence is corroborated by the testimony of the witnesses, shows that appellant furnished the pistol, horse, bridle, and saddle, and advised said accomplice to kill him, which he did.
Appellant's first bill of exceptions is a long statement to the effect that the sheriff of Runnels county would not permit appellant and his counsel to talk and confer with the accomplice, Tump Eldred. The court appends this explanation to the bill, to wit: "Tump Eldred is charged by indictment, in effect, with the same offense as that of defendant, Noah Wilkerson, though separately indicted, and Tump Eldred is now confined in the county jail of Runnels county upon said charge; and the court does not judicially know that on the trial of said Wilkerson [appellant herein] the state will undertake to use said Tump Eldred as a witness, and, further, the court does not judicially know that said Eldred would consent to testify in said cause, if placed upon the witness stand; and there being no law to compel him, under the circumstances, to testify in said cause, and his counsel opposing said interview herein sought, the court is of opinion that he has no legal right to make the order as requested, and the said application is therefore refused." We do not think the court erred in refusing the request as shown by this bill. If the witness Eldred, as indicated by the court, was indicted for the same offense that appellant is, there is no law by which the court could compel him to testify, and we do not think the bill shows how or wherein appellant has been injured by the refusal of the request complained of in the bill. A similar question was passed upon in Withers v. State, 23 Tex. App. 396, 5 S. W. 121. In that case, before being required to announce ready for trial, counsel for defense were permitted to interrogate a state's witness as to what his testimony would be. The witness refused to divulge, and the trial court refused to compel him to do so to the defense privately, disclaiming power in the court to so compel the witness on such an occasion. Held, that there was no error in the refusal of the court. Furthermore, the record before us discloses that this witness subsequently testified against appellant, and we are at a loss to know how his information about the facts could have assisted appellant in making his defense. Robinson v. State (Tex. Cr. App.) 49 S. W. 386; Morrison v. Same (Tex. Cr. App.) 51 S. W. 358. Furthermore, it appears, from the application made by appellant for a continuance at a previous term of the court, that appellant was cognizant of the fact that the witness Eldred had turned state's evidence.
Bill of exceptions No. 2 complains of the failure of the court to permit Tump Eldred to be brought out of jail and into the court, so that defendant's counsel could talk to him, before being called upon to announce ready for trial,—the case having been called for trial. Thereupon the court ordered said Eldred to be brought out, and M. C. Smith, attorney for said Eldred, protested against defendant's counsel seeing and talking to said Eldred. and went out and met Eldred and talked with him before he came to court, and came in the court with said Eldred, and announced to the court that he withdrew his objection. Thereupon defendant's attorney requested him to be allowed to retire into the anteroom with Eldred, and the court asked Eldred if he wanted to talk to the defendant's attorney, and he answered that he did not. The defendant's attorneys announced that neither they nor defendant had ever been permitted to talk to said Eldred since he was first arrested for the murder of Ben Slate; and they asked that they be allowed to retire to said anteroom with Eldred, and take the chance of his talking to them in private, which request was by the court refused. The witness was returned to the jail, and appellant or his counsel did not talk with him. The court appends the following qualification to the bill: "This witness was charged with the murder of Ben Slate, and I had no authority to require him to talk to defendant's counsel before he was offered by the state as a witness; and when he was offered, and after he had been sworn and was examined by the state, and before defendant's counsel cross-examined, they asked if they could be permitted to have a private talk with the witness, and I told them, `Yes;' but the witness said he did not want to talk with them, because Judge Truly treated him badly and said, `I will not talk to the rest of you,' and so the counsel proceeded to cross-examine." We do not think the court erred in the matter complained of in this bill.
Appellant's third bill complains of the failure of the court to grant his second application for continuance. We do not think the court erred in refusing this application for continuance, the same being his second application; and it does not appear, in the light of the record before us, that said testimony is material or probably true. Furthermore, the same would be cumulative. Nor does it appear that said testimony could have been procured, and was not procured, from other sources during the trial of this case. One of the witnesses, Mattie Wilkerson, as shown by the record, was present at the trial. We do not deem it necessary to review the application in detail, but suffice it to say that it does not comply, in the light of this record, with the rules authorizing us to reverse a case on a second application. White v. State, 6 Tex. App. 480; Garrett v. Same (Tex. Cr. App.) 38 S. W. 1017; May v. Same, 25 Tex. App. 125, 7 S. W. 588; Blackwell v. Same, 29 Tex. App. 194, 15 S. W. 597.
Appellant in his fourth bill complains that jurors were forced upon him, after he had exhausted his peremptory challenges, that were not competent under the statute. The veniremen Kirby, Crews, Routh, Kelly, and Bowden, after being examined on their voir dire, were declared qualified by the court, and appellant exhausted four of his peremptory challenges in standing them aside. The venireman Kirby, in substance, stated: Upon cross-examination he stated: Challenge for cause being overruled, the appellant peremptorily challenged said Kirby. Bowden, another venireman, stated: Upon re-examination by state, he said: The court then asked this question: "Could you go into the jury box and give defendant a fair and impartial trial, without being in any wise influenced by the opinion which you have formed?" and he answered, "Yes." He stated that he had not talked to any witness in the case; that his opinion was unfavorable to defendant. Appellant peremptorily challenged said venireman. Crews, another venireman, stated: That he had heard a good deal about the case. Had a clear, well-defined, and fixed opinion as to the guilt of Tump Eldred. Had not talked to any witness. Opinion was formed from hearing people talking about it around town. Had the same character of opinion as to the guilt or innocence of defendant. That his opinion was unfavorable to defendant. This opinion he has and will have until he hears evidence to change it. That he thought defendant was guilty and ought to be punished. That opinion would not in any wise influence him in finding a verdict in this case. ...
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