HENDERSON, Judge.
Appellant was convicted of murder in the second degree, and given forty-five years in the penitentiary, and prosecutes this appeal. It appears from the record that on the 14th of April, 1896, appellant, Steve Batson, in company with one Jim Bell, left Madisonville, to go to the home of appellant, some ten miles distant. On the way they met a negro by the name of Bledsoe, and another negro, Will
Davis (the deceased), in the road. They stopped, and some conversation ensued. The defendant remarked to Will Davis that he had promised he would kill him the first time he met him, and that he would do it now, but did not have anything to kill him with. It does not appear that Davis said anything in reply. Davis was cutting wood for one Mclver, not far from that point. After remaining a little while in the road, the parties separated, the negro Bledsoe, driving his wagon on towards town, Will Davis going off to where he was cutting wood, and the two men, Batson and Bell, going on towards the home of the former, several miles distant. The negro, Will Davis, did not return to the home of his employer that night. Subsequently, on the 18th of April, his body was found some two miles from where he was cutting wood, in a pool of water in the creek. It was ascertained that he had been murdered, and an investigation set on foot, which resulted in the arrest of appellant and Jim Bell. Bell turned State’s evidence, and related the circumstances of the killing. He states that after they left Bledsoe and Davis in the road, and had traveled a short distance towards the home of Batson, Batson stated that if he had anything he would go and kill that negro, Will Davis, and insisted that Bell had a pistol, and finally induced Bell to give him the pistol and go back with him. They then turned back and went to where Davis was cutting wood. One of them presented the pistol at said Davis, and the other tied him with a rope, made him get up behind Bell, and they rode some distance through the woods, and then hanged the negro to the limb of a tree. While he was hanging Batson shot him twice with the pistol. They then dragged his body to the creek, and threw it in (where it was subsequently found), taking the rope and hat of the negro and throwing them in another pool further up the creek. There was testimony of various witnesses tending to corroborate the witness, Bell, and to connect defendant with the homicide.
The first question presented for consideration is the action of the court in regard to the witness, Jake Bledsoe. After he had testified in chief for the State, on cross-examination by the defendant, he stated that he had been in the penitentiary; that he was sent from Kent County, Texas, for theft; had served out his term, and had never been pardoned. The bill of exceptions shows that appellant'objected to his testifying in the case, on the ground that he was an incompetent witness. The other bill of exceptions as to this witness shows that, after he had testified in chief, on cross-examination he stated that he had been in the penitentiary; was sent from Kent County, Texas, for theft; had served out his term, and had never received a pardon. Appellant thereupon made a motion to exclude his testimony. On the refusal of the court to exclude it (the court stating that he would charge the jury in reference thereto), he then moved to postpone or continue the case until he could get a certified copy of the conviction of said witness from Kent County, which the court refused, and he reserved his bill of exceptions. In White v. State, 33 Tex. Crim. Rep., 177, to which we are referred by counsel, where the proof was made by parol that a witness introduced by the State had
previously been convicted of a felony, and had not been pardoned, it was held “that on such parol proof he was rendered incompetent; that it was the duty of the State to make a timely objection to such mode of proof; but, if it was admitted without objection, that the witness was thereby rendered incomjDetent.” In that case the court say: “Had the State interposed objection to the mode of proving the incompetency of the witness, the court would doubtless have sustained the objection, because the conviction of a witness for an infamous crime cannot be proved by a witness on his voir dire, he not being bound to answer, nor would his answer be the best evidence of which the case was susceptible. Cooper v. State,
7
Tex. Crim. App., 194; Perez v. State, 8 Tex. Crim. App., 610. But it does not follow that the opposing side may not waive this right, and permit the admission of inferior evidence to prove the fact. The competency of the witness being the issue, upon objection urged it was held that the records must be produced, or their absence properly accounted for, before other evidence could be resorted to to show such incompetency. Perez v. State, 10 Tex. Crim. App., 327. But it seems that this rule does not apply when the credibility of a witness is only attacked on cross-examination, and in that case he may be compelled to answer as to his previous conviction of infamous crimes.” In above case it.appears that the examination of a witness by parol as to his previous conviction of a felony was made before he testified in the case; that no objection was made to that character of proof; and the fact being established in that manner, on objection the court held that the State had waived the matter as to the character of proof, and held the witness incompetent. But in this case the witness had already testified, and on cross-examination it was elicited from him that he had previously been convicted of a felony, and then for the first- time objection was made to his competency. The bill of exceptions shows that such testimony was allowed by the court, as stated at the time, to go to his competency, and not to the exclusion of his evidence; and the court so instructed the jury. We believe this case is distinguishable from the case of White v. State. At any rate, we hold that, where a witness has testified, and it is subsequently shown by parol evidence that he has been convicted of a felony, and the issue is then made as to his disqualification, and the court admits the parol testimony with the announcement that such evidence will go merely to the credit of the witness, and refuses to exclude the testimony already delivered, that there is no error.
The next question on this branch of the case is as to the motion of appellant to postpone or continue the case until the record of conviction of the said Bledsoe could be obtained from Kent County. So far as the record discloses, this was merely a suggestion in the nature of a motion to the court. There was no written motion to postpone or continue, showing the fact that the former conviction of the said witness was newly-discovered evidence, and further showing that diligence had been used to discover the fact that said witness had been previously convicted of a
felony. For aught that appears, by the use of the least diligence appellant might have ascertained that said witness had formerly served a term in the penitentiary on a conviction for felony. If such a motion had been presented to the court at the proper time, showing such newly-discovered evidence going to the disqualification of an important witness, the same might have been cause for a postponement or continuance of the case. But that question is not now before us. We would merely be understood as holding that the question was not properly presented. It appears by bill of exceptions No.
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HENDERSON, Judge.
Appellant was convicted of murder in the second degree, and given forty-five years in the penitentiary, and prosecutes this appeal. It appears from the record that on the 14th of April, 1896, appellant, Steve Batson, in company with one Jim Bell, left Madisonville, to go to the home of appellant, some ten miles distant. On the way they met a negro by the name of Bledsoe, and another negro, Will
Davis (the deceased), in the road. They stopped, and some conversation ensued. The defendant remarked to Will Davis that he had promised he would kill him the first time he met him, and that he would do it now, but did not have anything to kill him with. It does not appear that Davis said anything in reply. Davis was cutting wood for one Mclver, not far from that point. After remaining a little while in the road, the parties separated, the negro Bledsoe, driving his wagon on towards town, Will Davis going off to where he was cutting wood, and the two men, Batson and Bell, going on towards the home of the former, several miles distant. The negro, Will Davis, did not return to the home of his employer that night. Subsequently, on the 18th of April, his body was found some two miles from where he was cutting wood, in a pool of water in the creek. It was ascertained that he had been murdered, and an investigation set on foot, which resulted in the arrest of appellant and Jim Bell. Bell turned State’s evidence, and related the circumstances of the killing. He states that after they left Bledsoe and Davis in the road, and had traveled a short distance towards the home of Batson, Batson stated that if he had anything he would go and kill that negro, Will Davis, and insisted that Bell had a pistol, and finally induced Bell to give him the pistol and go back with him. They then turned back and went to where Davis was cutting wood. One of them presented the pistol at said Davis, and the other tied him with a rope, made him get up behind Bell, and they rode some distance through the woods, and then hanged the negro to the limb of a tree. While he was hanging Batson shot him twice with the pistol. They then dragged his body to the creek, and threw it in (where it was subsequently found), taking the rope and hat of the negro and throwing them in another pool further up the creek. There was testimony of various witnesses tending to corroborate the witness, Bell, and to connect defendant with the homicide.
The first question presented for consideration is the action of the court in regard to the witness, Jake Bledsoe. After he had testified in chief for the State, on cross-examination by the defendant, he stated that he had been in the penitentiary; that he was sent from Kent County, Texas, for theft; had served out his term, and had never been pardoned. The bill of exceptions shows that appellant'objected to his testifying in the case, on the ground that he was an incompetent witness. The other bill of exceptions as to this witness shows that, after he had testified in chief, on cross-examination he stated that he had been in the penitentiary; was sent from Kent County, Texas, for theft; had served out his term, and had never received a pardon. Appellant thereupon made a motion to exclude his testimony. On the refusal of the court to exclude it (the court stating that he would charge the jury in reference thereto), he then moved to postpone or continue the case until he could get a certified copy of the conviction of said witness from Kent County, which the court refused, and he reserved his bill of exceptions. In White v. State, 33 Tex. Crim. Rep., 177, to which we are referred by counsel, where the proof was made by parol that a witness introduced by the State had
previously been convicted of a felony, and had not been pardoned, it was held “that on such parol proof he was rendered incompetent; that it was the duty of the State to make a timely objection to such mode of proof; but, if it was admitted without objection, that the witness was thereby rendered incomjDetent.” In that case the court say: “Had the State interposed objection to the mode of proving the incompetency of the witness, the court would doubtless have sustained the objection, because the conviction of a witness for an infamous crime cannot be proved by a witness on his voir dire, he not being bound to answer, nor would his answer be the best evidence of which the case was susceptible. Cooper v. State,
7
Tex. Crim. App., 194; Perez v. State, 8 Tex. Crim. App., 610. But it does not follow that the opposing side may not waive this right, and permit the admission of inferior evidence to prove the fact. The competency of the witness being the issue, upon objection urged it was held that the records must be produced, or their absence properly accounted for, before other evidence could be resorted to to show such incompetency. Perez v. State, 10 Tex. Crim. App., 327. But it seems that this rule does not apply when the credibility of a witness is only attacked on cross-examination, and in that case he may be compelled to answer as to his previous conviction of infamous crimes.” In above case it.appears that the examination of a witness by parol as to his previous conviction of a felony was made before he testified in the case; that no objection was made to that character of proof; and the fact being established in that manner, on objection the court held that the State had waived the matter as to the character of proof, and held the witness incompetent. But in this case the witness had already testified, and on cross-examination it was elicited from him that he had previously been convicted of a felony, and then for the first- time objection was made to his competency. The bill of exceptions shows that such testimony was allowed by the court, as stated at the time, to go to his competency, and not to the exclusion of his evidence; and the court so instructed the jury. We believe this case is distinguishable from the case of White v. State. At any rate, we hold that, where a witness has testified, and it is subsequently shown by parol evidence that he has been convicted of a felony, and the issue is then made as to his disqualification, and the court admits the parol testimony with the announcement that such evidence will go merely to the credit of the witness, and refuses to exclude the testimony already delivered, that there is no error.
The next question on this branch of the case is as to the motion of appellant to postpone or continue the case until the record of conviction of the said Bledsoe could be obtained from Kent County. So far as the record discloses, this was merely a suggestion in the nature of a motion to the court. There was no written motion to postpone or continue, showing the fact that the former conviction of the said witness was newly-discovered evidence, and further showing that diligence had been used to discover the fact that said witness had been previously convicted of a
felony. For aught that appears, by the use of the least diligence appellant might have ascertained that said witness had formerly served a term in the penitentiary on a conviction for felony. If such a motion had been presented to the court at the proper time, showing such newly-discovered evidence going to the disqualification of an important witness, the same might have been cause for a postponement or continuance of the case. But that question is not now before us. We would merely be understood as holding that the question was not properly presented. It appears by bill of exceptions No. 3 that the State was permitted to prove by Mclver that the witness, Jake Bledsoe, related to him, the night of the 14th of April, the substance of the same matters testified by him on the trial. This was objected to upon the ground that it was hearsay.evidence. In this there was no possible harm to the appellant. Without any objection whatever, Jake Bledsoe had already testified that he related the same facts as sworn to by him to Mclver that night (April 14th). Bet us suppose that Mclver had not been permitted to testify that Jake Bledsoe had told him, Bledsoe having sworn that he had related the matter to Mclver. Mclver was in attendance upon the court, and, if this was questioned, certainly appellant would have had the right to impeach Bledsoe by proving by Mclver that he had made no such statements. If appellant had objected to Jake Bledsoe stating that he related the facts to Mclver, quite a different question would have been presented. But without objection this matter was all before the jury, and we are of opinion no harm was done. We do not understand the
shape of
this question as presented to come within the rule laid down in the case of Riojas v. State, ante p. 182, and other cases. The character of the testimony is objectionable, and not the competency of the witness; and, as Bledsoe was permitted to relate the same facts, we can see no harm that they were reiterated by another witness. If appellant had objected to any of this
testimony on
the ground that Bledsoe had not been impeached, under the authorities we think his position would be correct.
It is objected that when the hat, rope, tracks, and blood spots, etc., were found, Bell, a confessed accomplice, was present with those who made the discovery. Bet us suppose that Bell had not been present, certainly the discovery of these evidences of crime would have been admissible, and could have been proved by any witness having knowledge of them. The presence of Bell did not render this evidence inadmissible, nor the fact that he did assist and point out these evidences of crime. It is true that they did not tend to criminate appellant, but they tended very strongly to show that Bell was present when this murder was committed, and that he had not manufactured that part of his story. It is in evidence by other witnesses that Bell and appellant were together, that they were on horseback, and the tracks of tw.o horses were found at the very place at which the killing took place, and from there to where the body was thrown in the water. These tracks were followed by a drag, and some of thetracks obliterated by the object dragged—evidently the
object which was dragged by the horse was the body of the deceased. The tracks of the horses were of different sizes, one large and the other small. These parties were riding horses whose tracks were of different sizes. This is some corroboration of the accomplice. The witness, Bledsoe, testified to facts so closely connected with this murder, and in such a character as to be cogent corroboration of the accomplice. Besides this, there is also corroborating testimony as to the parties being together in that vicinity, and also with reference to the rope with which the hanging was done as being the rope of appellant. The corroborative proof in this case, in connection with the testimony of the accomplice, shows a most cold-blooded and atrocious murder. The record shows that this murder was committed on the 14th of April, 1896. The body was discovered on the 18th of April, and the arrest qf the parties immediately followed. The indictment was procured on the 22nd of April, and this conviction secured on the 28th of April, 1896. We cannot refrain from commending the authorities for their diligence in prosecuting this case to a speedy and successful trial, and in vindicating the law, and bringing the offender to speedy justice. The judgment is affirmed.
Affirmed.