Deuran v. State

Court of Criminal Appeals of Texas

Deuran v. State

115 S.W.2d 945, 134 Tex. Crim. 433, 1938 Tex. Crim. App. LEXIS 405

CourtCourt of Criminal Appeals of Texas

DecidedJanuary 26, 1938

DocketNo. 19158.

StatusPublished

Cited by1 cases

This text of 115 S.W.2d 945 (Deuran v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Deuran v. State, 115 S.W.2d 945, 134 Tex. Crim. 433, 1938 Tex. Crim. App. LEXIS 405 (Tex. 1938).

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The offense is murder; the punishment, confinement in the penitentiary for four years.

The opinion on a former appeal is reported in 130 Tex. Crim. 308,94 S.W.2d 181. It appears that the testimony adduced upon the present trial was substantially the same as that set forth in the opinion to which we have referred. Hence we deem it unnecessary to again make a detailed statement of the evidence.

Appellant's chief contention is that he should have been granted a new trial because of newly discovered evidence. It appears that Lester Wilkerson, the alleged newly discovered witness, was present at the scene of the homicide and would give testimony corroborating appellant's version of the transaction. Wilkerson had been subpoenaed by appellant in June, 1934; and in August, 1936, a subpoena issued at the instance of the State was duly served on him. Under the circumstances, it is doubtful whether appellant exercised proper diligence to obtain the testimony of the witness prior to the trial. Be that as it may, it is observed that Henry Fields and J. C. Jones both gave testimony corroborating appellant's version of the transaction. In Mr. BRANCH'S Annotated Penal Code, Sec. 203, the rule is stated as follows: "As a general rule where it appears that had the proposed new witness testified on the trial his testimony would have been merely cumulative of that adduced on the trial, it affords no ground for granting a new trial as newly discovered testimony."

We are constrained to hold that the trial judge properly exercised his discretion in overruling the motion for new trial.

In bill of exception No. 2 appellant complains of the action of the court in omitting from the forms of verdict furnished the jury a blank form for murder without malice. The bill is qualified by the trial judge as follows: "That the several forms of verdicts as prepared by the court were submitted to attorney for defendant, in open court, before they were given to the jury together with the court's charge; and after examining said forms of verdicts defendant's attorney made no objection thereto, nor requested a form of verdict for finding of murder without malice." As qualified, the bill fails to reflect error.

Bill of exception No. 3 presents the following occurrence: The State proved, over appellant's objection, that Reuben Corbell, who was present at the difficulty, made this statement to *Page 435 a bystander: "Get that car number; they have killed my partner." When this statement was made appellant was leaving the scene of the difficulty in an automobile. All of the evidence on the trial of the case showed that appellant had killed the deceased. Moreover, it was shown that appellant immediately left the scene of the homicide. Under the circumstances, if it should be held that the exclamation of the witness was not admissible as res gestae, we are unable to reach the conclusion that its reception in evidence was prejudicial to appellant.

We have confined our discussion to the matters stressed by counsel for appellant in oral argument. We have carefully examined the remainder of appellant's bills of exception and are constrained to hold that they fail to reflect reversible error.

The judgment is affirmed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

ON MOTION FOR REHEARING.

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The offense is murder; the punishment, confinement in the penitentiary for four years.

The opinion on a former appeal is reported in 130 Tex. Crim. 308,94 S.W.2d 181. It appears that the testimony adduced upon the present trial was substantially the same as that set forth in the opinion to which we have referred. Hence we deem it unnecessary to again make a detailed statement of the evidence.

Appellant's chief contention is that he should have been granted a new trial because of newly discovered evidence. It appears that Lester Wilkerson, the alleged newly discovered witness, was present at the scene of the homicide and would give testimony corroborating appellant's version of the transaction. Wilkerson had been subpoenaed by appellant in June, 1934; and in August, 1936, a subpoena issued at the instance of the State was duly served on him. Under the circumstances, it is doubtful whether appellant exercised proper diligence to obtain the testimony of the witness prior to the trial. Be that as it may, it is observed that Henry Fields and J. C. Jones both gave testimony corroborating appellant's version of the transaction. In Mr. BRANCH'S Annotated Penal Code, Sec. 203, the rule is stated as follows: "As a general rule where it appears that had the proposed new witness testified on the trial his testimony would have been merely cumulative of that adduced on the trial, it affords no ground for granting a new trial as newly discovered testimony."

We are constrained to hold that the trial judge properly exercised his discretion in overruling the motion for new trial.

In bill of exception No. 2 appellant complains of the action of the court in omitting from the forms of verdict furnished the jury a blank form for murder without malice. The bill is qualified by the trial judge as follows: "That the several forms of verdicts as prepared by the court were submitted to attorney for defendant, in open court, before they were given to the jury together with the court's charge; and after examining said forms of verdicts defendant's attorney made no objection thereto, nor requested a form of verdict for finding of murder without malice." As qualified, the bill fails to reflect error.

Bill of exception No. 3 presents the following occurrence: The State proved, over appellant's objection, that Reuben Corbell, who was present at the difficulty, made this statement to *Page 435 a bystander: "Get that car number; they have killed my partner." When this statement was made appellant was leaving the scene of the difficulty in an automobile. All of the evidence on the trial of the case showed that appellant had killed the deceased. Moreover, it was shown that appellant immediately left the scene of the homicide. Under the circumstances, if it should be held that the exclamation of the witness was not admissible as res gestae, we are unable to reach the conclusion that its reception in evidence was prejudicial to appellant.

We have confined our discussion to the matters stressed by counsel for appellant in oral argument. We have carefully examined the remainder of appellant's bills of exception and are constrained to hold that they fail to reflect reversible error.

The judgment is affirmed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

ON MOTION FOR REHEARING.

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115 S.W.2d 945, 134 Tex. Crim. 433, 1938 Tex. Crim. App. LEXIS 405, Counsel Stack Legal Research, https://law.counselstack.com/opinion/deuran-v-state-texcrimapp-1938.

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