Wilson v. State

• Decision Date: 26 May 1920
• Docket Number: (No. 5832.)
• Parties: WILSON v. STATE.
• Court: Texas Court of Criminal Appeals

224 S.W. 772

WILSON v. STATE.

(No. 5832.)

Court of Criminal Appeals of Texas.

May 26, 1920.

On Motion for Rehearing, October 13, 1920.

Appeal from Criminal District Court, Tarrant County; Geo. E. Hosey, Judge.

Monta Wilson was convicted of murder, and he appeals. Affirmed.

Graves & Houtchens, of Ft. Worth, for appellant.

Alvin M. Owsley, Asst. Atty. Gen., for the State.

LATTIMORE, J.

Appellant was convicted in the criminal district court of Tarrant county of the murder of Thurmond Sexton, and his punishment fixed at five years in the penitentiary.

Practically the undisputed evidence shows that a number of parties were riding in an ordinary wagon along a street in the city of Ft. Worth on the 30th of May, 1919. Deceased, who owned the wagon and team, was driving, and with him on a spring seat was one Shan Roberson. Just in their rear was another spring seat, on which was Mrs. Roberson and Mrs. Wilson, wife of appellant; the latter holding in her arms a four-year old child, born to her and deceased before her marriage to appellant. Behind this second spring seat, appellant was standing in the wagon, and while in these relative positions appellant drew a pistol and shot deceased three or four times, all the bullets entering from the side or rear, and from which wounds the death of deceased resulted some weeks later. Aside from the evidence of appellant, all the other eyewitnesses, who testified about the facts of the tragedy, said that deceased made no motion and said nothing to appellant before he was shot. Appellant himself testified that, just before he shot deceased, deceased told the man Roberson to "take the team to Cora's and that he (deceased) would take Laura to the rooming house," and that, after making this statement, deceased bent forward; that he knew there was a hammer on the floor of the wagon in the front corner of the bed, and that he drew his pistol and shot deceased. Deceased made a statement before his death, in which he said he did and said nothing to appellant to provoke the assault. Appellant made a statement, soon after the shooting, in which he stated that he made up his mind, on the day before the homicide, that he was going to kill deceased, and that he did kill him because deceased had broken up his family. Appellant's explanation, while a witness, of his motive for the shooting, was that he was actuated by self-defense and the rage arising from the conduct of deceased toward the wife of appellant.

Appellant moved for a continuance, on account of the absence of Ruth Weilman. It appears that the residence of said witness was unknown, but the belief is expressed in the application that such residence and her then location were somewhere in the state of Iowa. No subpœna, or copy thereof, was attached to said application, nor was any statement made as to when any subpœna was issued. It was only generally stated that appellant was informed on October 17, 1919, that a Miss Ruth Weilman had stated that she was an eyewitness to the killing, and would testify to the facts which he states in his application as expected from her, and that he immediately caused a subpœna to issue to Tarrant county for said witness. Irrespective of the date of said process, same was returned by the sheriff on the 20th day of said month, stating that said witness was in Bexar county, Tex. In a contest filed, objecting to said continuance, appears the statement that the subpœna was returned on said date. No alias subpœna or other process was issued for said witness, although the case was not given to the jury until October 24th.

It is well settled that the burden is on the appellant to show the use of necessary diligence, and the facts above enumerated do not seem to us to meet such requirements. Not only was no subpœna issued to Bexar county on or about the 20th, but no other effort, prior to the conclusion of said trial, to locate said witness in Bexar county, appears in the record. There are other matters affecting our disposition of this question of continuance. The trial was had late in October, 1919, and the motion for new trial was not acted upon until January 3, 1920. No affidavit, or statement of said witness, or of any person who had ever talked to said witness, or knew first-hand what facts said witness would or could testify to, appears in connection with the motion for new trial, or otherwhere in the record. In his said motion, as excuse for failure to support this ground thereof with some character of affidavit as to where said witness was, or what her testimony would be, appellant again states in general terms his efforts to locate her, which were without success. While it was averred in said application that a young lady was walking on the sidewalk some 30 or 40 feet from the wagon, and that she was an eyewitness to the transaction, we observe that there is no reference to the presence of any such person anywhere in the statement of facts. Said application states that defendant was informed, about September 15th, that a daughter of an officer at Camp Bowie was an eyewitness, but that he could not learn her name or address; that on October 17th he was informed that Miss Ruth Weilman had stated that she was an eyewitness, and had related the facts seen by her, as stated in said application; but no information was obtained as to the address or where-abouts of said young lady, further than that she was believed to live in Iowa. The expectant testimony attributed to the absent witness appears to be that she would swear that she was looking at the parties, and saw deceased turn as if speaking to those behind him, and then bend forward and reach under the seat; that at that instant the accused drew a pistol and fired the fatal shot.

In this connection, another settled rule is that, in passing on the merits of applications for continuances, this court will look to the whole record, to ascertain if the facts stated as expectant appear likely to be true, and also if there be a reasonable probability of procuring same, and that, if same be procured, it would likely produce a different result. Applying these rules, we note that, of the various eyewitnesses present when the homicide took place, appellant is the only one who undertook to testify to any word or motion of deceased just prior to the time the shooting took place. Mr. and Mrs. Roberson positively denied any such facts, and the wife of appellant, who was introduced as a witness for him, did not testify to any such facts. Appellant testified that on their way to town that afternoon, a distance of some five or six miles, a tire on one of the wheels got loose, and that either deceased or Roberson asked him to fix it, and he got a hammer and tried unsuccessfully to knock the tire back on; that deceased got out of the wagon, took the hammer from him, knocked the tire back, dropped the hammer in the front corner of the wagon, and all parties got back in their places.

We think the trial court correctly refused to continue the case, because no sufficient diligence was shown, and also because of the fact that, if efforts from May, 1919, to January, 1920, were unavailing to even locate a witness, whose expectant testimony has never gotten beyond the hearsay opinion stage, a court could hardly be expected to delay for any such matter so indefinite and uncertain. We are also of opinion, from the record, that it is altogether improbable that such witness would testify as stated, or that such testimony, if given, would...