Edwards v. State

172 S.W. 227, 75 Tex. Crim. 647, 1914 Tex. Crim. App. LEXIS 550

Opinions

HABPEB, Judge.

—Appellant was convicted of murder upon implied malice and his punishment assessed at five years confinement in the State penitentiary.

One of the main contentions of appellant is that the court erred in submitting the issue of murder in the first degree and second degree,— that the evidence only shows appellant to be guilty of manslaughter, if guilty of any offense. If we view the case solely from the evidence-offered in behalf of appellant, doubtless this would be true, but when we take the evidence offered in behalf of the State we think it would clearly authorize a conviction of murder, if believed to be true. The record discloses that deceased, Mr. Bean, and appellant were on different sides in a senatorial contest in 1910; that Mr. Edwards, appellant, was manager of this election, and deceased charged him with improper conduct in connection therewith,—had not given the candidate favored by Bean the number of votes actually received; that Bean was-angry and had made threats to prosecute appellant and do him personal violence. The record does not show that appellant, prior to hearing of these threats of prosecution and to do him violence, had any ill-will towards Bean. Another election, the general election, came on in November, at which considerable interest was manifested over the election of a county clerk, Mrs. Brit Trevathan and Dan Ivey being the candidates. Deceased favored the election of Mrs. Trevathan, while appellant favored the election of Mr- Ivey. Appellant remained around the polls a good portion of the day, and deceased came there to vote late in the afternoon. It appears that about the time deceased came to vote, Jordan and others claimed to have received information that Mrs. Trevatkan was running ahead of Ivey, and were joking appellant. All say this was in a good humor. The State’s contention is that .appellant, knowing that deceased was at the polls, went up the road some seventy yards (the way deceased must return in going to his store) and sat down; that when deceased and Cullen Arnett came along the road on his way to the store and got about even with appellant, appellant raised up and said, “I would like to speak to you, Mr. Bean,” and Bean stopped, taking one step towards appellant, when appellant advanced on him, and asked him about what he had been saying about .'him, repeating the remarks he had heard, and that Bean replied he did say it. Appellant had in his hand a stick about three feet long and as large as a man’s wrist—some speak of it as a wagon standard. Some witnesses for the State, to quote their own language, say: “I know that Mr. Bean never made any effort of any kind to hit or strike Mr. Edwards ■during the' entire difficulty. He never did attempt or make any effort to hit or strike Mr. Edwards, for I know that if he had I could and would have seen it.” The State’s evidence further shows that after the above conversation, appellant struck or struck at Bean with the stick, and then struck Bean the second time, felling him to the ground; that appellant walked around Bean and, using both hands, struck Bean twice while he lay on the ground, once in the back and once more on the head. The doctor thus describes the wounds:

“I examined his head first and the first wound I found was here (indicating) on the right side like of his head, right around this way (indicating on his own head), and it was just about two inches in front of his ear upward and it extended back this way (indicating on his head backwards), about three or three and a half inches, and that wound lay the scalp open about one or one and a half inches wide and that lay open to the bone, and then I found another small wound on his head <on the left side which was about in the edge of his hair up about here (indicating); and then back here (indicating on his own back) on his "back and about from his shoulder blade down the back and that was .about the extent of his injuries as I now recall them. This wound up 'here on his head that I said extended back some three or three and a half inches, I couldn’t say whether that was caused with one or two licks. Mr. Bean is now dead. He died that morning after I had seen him ■that evening about 4 or 4:30 o’clock in the morning. I think he must have lived .about nine and one-half or ten hours after he received his injuries. He died from concussion and contusion of the brain. The blows no doubt that he received caused this concussion of the brain, which caused his death. These wounds that I have described caused this condition which produced his death. This place I have spoken about on the left side of his head was just a small place and looked like it might have been made by him falling on gravel or cinders or something of that sort. It didn’t appear to have been made with a lick. This place up in his head I am sure was caused by a lick with some heavy instrument, as it was open and lay open to the bone for the length I have said already. I couldn’t tell, as I said before, whether that was caused with one blow or more than one blow. That bruised place on his back must have been some twelve or fifteen inches in length, and it was four or five or six inches wide. And as to the condition of that, will say that it was just a bruised place that size, discolored, blue and black, discolored about six inches wide, across the back.” It is thus seen that the State’s case is that appellant, becoming angry at what Bean had been saying in regard to the senatorial election, went up the road and sat down where he knew Bean would pass in returning to his store; that as Bean came along he accosted him, and without Bean doing anything at that time that would be cause, in law, to produce a state of mind to reduce the offense to manslaughter, killed his adversary. The State’s evidence makes a clear case of murder, if the jury believed the testimony, and the court did not err in submitting that issue to the jury, and refusing those special charges of appellant in which he sought to have the court instruct the jury that under the evidence, even though they believed appellant guilty, they would not be authorized to find him guilty of no higher grade of offense than manslaughter. Clore v. State, 26 Texas Crim. App., 624; Neyland v. State, 13 Texas Crim. App., 536; Hill v. State, 11 Texas Crim. App., 456; McKinney v. State, 8 Texas Crim. App., 626.

On the other hand appellant’s testimony would tend to prove that when they were joking him about the election of county clerk, he placed no faith in the reports they claimed to have received, and he was going up this road to go to a telephone to make inquiries himself; that his nephew started with him, but getting behind, in joking with other men, he stepped on the side of the road to wait for his nephew, and at this time deceased came along with Cullen Arnett, and having been told what deceased had been saying about him, he said: “Mr. Bean, I understand you have made some remarks and I want to speak to you in regard to them,” when Bean, replied, “I did not,” running his hand in his pocket and pulling out his lmife. He says he told Bean "to shut up that knife,” and stooped down and picked up the stick with which he afterwards killed Bean. That Arnett jumped in between them, Bean at the time trying to get around Arnett, when he told Arnett to get out of the way. As Arnett got out of the way he shoved deceased back, and as he did so, deceased cut at him, cutting his suspender in two and cutting his shirt; that he then struck Bean with the stick,—he says he does not know how many times, and does not know whether he struck him after he was down or not. But all the witnesses, both for the State and defendant, make it plain that appellant did strike him twice after he fell. His testimony would present self-defense and manslaughter, and both issues were submitted by the court to the jury> appellant not exteepting thereto in any manner. The only objections to the charge being: First, that the court erred in submitting the issue of murder. As hereinbefore shown, this presents no error, for the State’s evidence would support a waylaying; second, defendant contends that the following paragraph was upon the weight to be given the testimony: __ “Where one person intentionally kills another, it depends upon the circumstances attending the killing whether the act is justifiable or not, or if not justifiable, the degree of his- guilt.” This was in that part of the charge defining murder and not in that portion submitting the issues to the jury. All definitions necessarily state the law, as in defining malice, but this does not tell the jury that in this case, the evidence shows an intentional killing; it is but telling the jury what the law is in case of an intentional killing, and such instructions have always been held not to be upon the weight to be given the testimony. Besides, in this case there was no issue of accidental homicide, or other issues raised by the testimony that could have rendered this other than an intentional homicide. Appellant testifies to facts which would justify, but he admits he intentionally struck the blows under circumstances which show an intention to kill.

The other objections made to the charge were sustained by the court and corrections made in accordance with the suggestions.

The ill-will deceased had manifested towards appellant, in so far as this record discloses, grew out of the election of a Senator, held some time prior to the general election. While, perhaps, they advocated different persons for the office of county clerk in the general election, yet there is nothing to indicate that any ill-will had developed between any person or persons on account of this latter contest. Witnesses for the State and defendant both testify that, while there were some pleasantries passed, and they were joking each other, all were doing so good humoredly, and there is nothing to indicate that deceased took any part in it. Under such circumstances, the court did not err in sustaining objections to questions to witnesses to ascertain in which way they voted in the contest for county clerk. ¡No good purpose could or would be subserved, for there is nothing in the record to suggest they entertained ill-will towards appellant on account of his position in that election. Neither do the bills claim that such questions were expected to be followed by questions to the witnesses, or state that other proof would be offered to show that they did entertain ill-will towards appellant on account of his choice for county clerk. In fact, a brother of Mrs. Trevathan, Walter Jordan, was on this trial a very material witness for appellant, and yet the .record shows that appellant opposed the election of Mrs. Trevathan. Of course the ill-will, bias or interest of a witness is always material as contended by appellant, but this difficulty grew out of the senatorial contest, and the record discloses that the election for county clerk did not enter into it in any manner, nor that any ill-will between anyone grew out of the latter election, nor does appellant claim in his bill that he expected to show that any ill-will did grow therefrom, only that he could have shown that some of the witnesses voted different from the way appellant voted. These bills present no error as the answer, if made as contended by appellant, would not have shown bias, or ill-will towards appellant.

In another bill it is claimed the court erred in not permitting B. Ladd and others to testify what the “report was the negro made” who notified them of the difficulty. This would be hearsay, pure and simple, and the court did not err in excluding it. The negro was not a witness in the case. If he knew any facts that would he material to defendant, he should have been called as a witness, and not seek to elicit that fact by what he, the negro, told some other person. Again, the hill is insufficient to present the question for review, for it does not state what the witness would have testified the negro reported, and if the testimony had been admissible, it would he impossible for us to determine whether or not it would or could have been material or relevant.

In another hill it is' shown that in presenting the case to the jury, defendant’s counsel “had dwelled on the fact that appellant had a good reputation for .peace and violence, and therefore would not have committed an unlawful killing.” In rejoinder, State’s counsel urged that “he had known of a minister of the gospel who had always borne an enviable reputation, committing a heinous murder after he was sixty years old.” It is true that there was no evidence in the record that this minister had committed the crime of murder, yet if counsel, in their argument, are so restricted that they can not use illustrations, it would confine their argument with too narrow limits. In the Standard Encyclopedia of Evidence it is said: “The relating of jokes, circumstances of other eases, actual or hypothetical, or instances similar to those involved, either real or imaginary, in illustrating, emphasizing, or impressing a point in argument, is usually considered within the bounds of proper forensic discussion.” (Hudson v. State, 44 Texas Crim. Rep., 251; Jones v. State, 46 S. W. Rep., 933.) This is not only the rule in our own State, hut elsewhere. State v. Busse, 127 Iowa, 318; Jackson v. Commonwealth, 100 Ky., 239; People v. DeCamp, 146 Mich., 533; State v. Gannon, 75 Conn., 206. However, counsel must not use this license to get before the jury prejudicial facts not in evidence, for if they do it will work a reversal of the case.

The only other bill in the record relates to what is termed newly discovered evidence. This case had been pending on the docket more than three j^ears at the time of this trial; this fact, of course, would not pre-' vent the evidence from being newly discovered, if in fact, the bill had shown what diligence had been used by appellant to discover this evidence before the trial. In this the hill is lacking. However, it may be said there was no fact or circumstance within the knowledge of appellant that would put him on inquiry as to the testimony of Mr. Burns. This witness says he would testify on another trial he heard deceased say that at the senatorial election, of which appellant was manager, he had positive proof that some ten or twelve votes had been changed by appellant, and he expected to get appellant indicted; that he was going to push it to the hitter end, and having a knife in his hand, said he “intended to use that knife and to drop his own blood to carry his point; that he was going to use the knife on appellant if he failed in the prosecution.” This was a threat and appellant could not know that deceased had made this threat to this witness and there was nothing to put him on inquiry in regard to it. However, this threat, it is plain, was not connnnnicated to defendant-—it could have no bearing on how the circumstances appeared to him at the time, and if known at the time of the trial would have been admissible only on the issue as to who began the difficulty; however, it would have been admissible on that issue, and the question that arises, had he known this fact, had the witness been summoned and failed to attend, would this have been sufficient ground for continuance,—if so, the new trial should have been granted. The record discloses this case had been continued a number of times,—at least, six. Our Code provides that on the second or any subsequent application the appellant must allege and swear “that- the testimony can not be procured from any other source.” (Art. 598, White’s Ann. Code.) Could appellant make this application under the circumstances as proven in this record? He knew them, and the record discloses that several witnesses were present and would swear and did swear on the trial to threats made by deceased of the same character and kind. Jim Dyer, D. Grumpier, Sam Trawick, John O’Quinn, Frank Carsons, and perhaps others testified to similar threats as the witness Burns says he would testify to on another trial. So, if appellant had known of his testimony, and had the witness Burns summoned as a witness, his absence under the statute would not have been ground for a second or subsequent continuance of the case, and, of course, under such circumstances presents no ground for a new trial.

The other witness alleged to be newly discovered, Hr. Bed, appears in a different light. He says immediately after the difficulty he met appellant, and at the time he met him, appellant’s suspender was cut. If Bed knows he met. appellant, appellant also knew he met Bed and that his suspender was cut; consequently he was in possession of facts that, to use diligence, he should, during the three years, time, have made inquiry of this witness as to whether he saw this cut before they met. He was in possession of facts that required diligence on his part. For three years he knew that his defense was that deceased had assaulted and cut at him with his knife and cut his suspender; for three years . he had known that he met Hr. Bed immediately after the difficulty, and ordinary prudence would have suggested to him to inquire of Hr. Bed whether or not he saw this cut, yet, during all that time he made no such inquiry. In Carrico v. State, 36 Texas Crim. Rep., 618, it was held that a new trial will not be granted for newly discovered evidence which could have been discovered by the use of ordinary diligence. It has always been the rule in this State that the application must show that it was not owing to want of due diligence on the part of the defendant that it was not discovered, and did not come to his knowledge before the trial. West v. State, 2 Texas Crim. App., 209; White v. State, 10 Texas Crim. App., 167; Shaw v. State, 27 Texas, 750; Duval v. State, 8 Texas Crim. App., 370; Hutchinson v. State, 6 Texas Crim. App., 468; Fisher v. State, 30 Texas Crim. App., 502; Reagan v. State, 57 Texas Crim. Rep., 642; Cooper v. State, 58 Texas Crim. Rep., 598; LaFlour v. State, 59 Texas Crim. Rep., 645; Turner v. State, 61 Texas, Crim. Rep., 97; Johnson v. State, 62 Texas Crim. Rep., 284; Wilson, v. State, 63 Texas Crim. Rep., 81.

As said in Simms v. State, 1 Texas Crim. App., 627, in applications for a new trial on account of newly discovered evidence the allegations, must at least have been sufficient to entitle one to a continuance, and should satisfy the court that the appellant had not been remiss in diligence. Several witnesses on this trial testify to seeing appellant shortly after the difficulty, and that his suspender was cut, so in a second or subsequent application for a continuance appellant, had he known this witness would testify as alleged, he could not have complied with the law in making application for a second continuance for he knew that Bob Edwards, B. Ladd, Bud Henson, and other witnesses were in attendance on court and would and did swear on the trial that appellant’s, suspender was cut as claimed by him.

As to the witness Jap Calvert, his testimony would be but cumulative of other testimony,—in fact, would be testimony as to a fact not disputed in the record,—that deceased owned a barlow knife.

We have given this case careful and thoughtful consideration on all the grounds in the motion for a new trial, and especially as to those grounds relating to the remarks of counsel for the State and the one alleging newly discovered evidence. There can be no question that the-other grounds present no error. As to these two, after diligent inquiry, we have come to the conclusion that they present no ground under the decisions of this court for reversal of this case, and the judgment is. affirmed.

Affirmed.