Handline v. State

6 Tex. Ct. App. 347

Opinion

Ector, P. J.

The defendant in this case was indicted in the District Court of Bexar County, for the murder of Peter Maddox. The indictment was presented by the grand jury on the third day of April, 1878. The case was tried at the following December term of said court, and the defendant was convicted of murder in the first degree. The points presented for determination are all embraced in the several bills of exception.

The defendant filed a plea to the jurisdiction of the court, and suggested that it had no authority to hear and try this cause, “because an act entitled ‘An act prescribing the times of holding the District Courts of the Twenty-second Judicial District,’ approved May 30th, 1876, by which said act the county of Bexar is given five terms of the District Court, is unconstitutional, null, and void, said act being a special act, and therefore in direct violation of the terms and meaning of art. 5, sect. 7, of the Constitution.”

The District Court overruled the plea to the jurisdiction, and, we think, in this no error was committed. The act in question is not in violation of the Constitution. It is a general, and not a special act. Cordova v. The State, ante, p. 207.

Defendant filed a motion to quash, the special venire, which was properly overruled. The record shows that, on the first day of the term of the court at which this case was tried, the court, on motion of the county attorney, ordered “ a special venire facias for sixty jurors to issue forthwith, for the trial of this cause, returnable into court on or before the 10th day of December; and that this cause be set for trial on the 12th day of December, A. D. 1878.” On the following day (which was the second day of the term), the clerk of the District Court of Bexar County issued a writ of special venire facias for sixty jurors, to serve as special jurors in this cause, giving their names, which was delivered to the sheriff of said county. The writ of special venire facias states that the persons named therein have been selected, in the manner provided by law; to serve as special jurors in this case, and the return on said writ by the sheriff is as follows : “ Came to hand Dec. 3rd, 1878, and I caused this venire to be executed by summoning the within-named persons; a list of the names is hereunto attached, and made a part of this return; said parties were served either in person or by written notice, and I delivered a true copy of the list of the persons summoned to the defendant, this Dec. 9th, A. D. 1878.” Then follows the list of those summoned, including forty-seven of the sixty persons named in the original writ of special venire facias. While the record does not in so many words state that the clerk first drew the said venire, and then issued the said writ, or that said venire was drawn by the clerk in the presence of the judge, in open court, the writ of special venire facias states that the persons whose names are set out therein were selected in the manner provided by law; and, in the absence of any thing to the contrary, we must presume that the rules prescribed in sect. 23 of our jury law were in all things observed. See Gen. Laws 1876, pp. 82, 83, chap. 76, sect. 23.

Defendant was only entitled to a copy of the list of those summoned on the special venire; and this was done. He had no legal right to be in court when the venire was drawn. We deem it unnecessary to discuss the other questions raised in the motion to quash.

We are of opinion that the court below did not err in overruling defendant’s motion for continuance. His application states “that he has absent the following material witnesses: Albert Rhodes and Argyle Rhodes, both residents of Tom Green County, Texas ; that the defendant has used due diligence to procure the attendance of said witnesses, as follows : that he had issued out of this honorable court a writ of attachment for the said Albert and Argyle Rhodes, on the 9th day of April, A. D. 1878, which said writ, issued as aforesaid, was directed to the sheriff of Tom Green County, Texas ; which said attachment was returned by said sheriff on the 9th day of May, A. D. 1878, executed on May 4th, 1878, by attaching said Albert and Argyle Rhodes, and talcing their bonds for appearance to this court, which said bonds are here on file, and made a part of this motion; that, at the June term, 1878, of this honorable court, on the 19th day of said month of June, this cause was called for trial, whereupon came defendant, and showed to the court that he could not safely proceed to trial, owing to the absence of said Argyle and Albert Rhodes, and other witnesses, and made a motion to continue this cause, which motion is on file, and is hereby referred to ; and it appearing to the court that said witnesses were material for the defence, this cause was thereupon continued, and it was ordered by the court that the said Albert and Argyle Rhodes be each fined the sum of one hundred dollars, and that a capais pro fine issue forthwith for the same ; but, notwitstanding said order of the court, this defendant is informed and verily believes that said copias pro fine has not been issued, and that if the said copias pro fine had been issued and executed in conformity with the orders of this court, this defendant believes that the said witnesses would have been present at the trial to-day, as he is informed and verily believes that, at the time of the said order of the court, the said Albert and Argyle Ehodes were then, and ever since have been, residents of the said county of Tom Green. Wherefore the defendant shows to the court that great and irreparable injury would be done him from failure to carry out the said order, heretofore made by this honorable court; that, it appearing that said Albert and Argyle Ehodes were each under bond of one hundred dollars for their appearance from day to day and term to term of this court, which bonds are on file, and hereto referred to, this defendant did not cause any subsequent attachment to issue for the said Albert and Argyle Ehodes, as he relied upon and considered the above stated order of court and their said bonds sufficient to bring them into court. Defendant says, further, he has absent the following material witmesses: Fred Schroeder and Joseph Lang; that he has used due diligence to procure their attendance, as follows : that he had issued, on the 9th of April, 1878, an attachment out of this court, directed to sheriff of Tom Green Co., Texas; that the attachment was filed in this court on 9th May, 1878, with the following return: 6 Came to hand April 10th, 1878, and Fred Schroeder and Joseph Lang not found in this county.

[Signed] ‘A. McAlvaine,

‘ Sheriff of Tom Green Co.,

‘By E. W. Thomas, Deputy.’

“ Notwithstanding said return, this defendant was at the time, and has ever since been informed and believes, and here alleges, that the said two above-named witnesses were, at the time of said return, and have been ever since, and are still, residents and citizens of Tom Green County, Texas. Wherefore defendant, subsequently, to wit, on the 27th day of May, 1878, had issued an alias attachment out of this court, directed to the sheriff of Tom Green County, Texas, for the said Fred Schroeder and Joseph Lang; that said attachment was placed in a sealed envelop, and stamped with a three-cent United States postage-stamp ; that it was directed as aforesaid, and mailed on same day that it was issued, by this defendant’s attorney, Geo. Paschal; that, this last-named attachment not being returned on the 19th day of June, A. D. 1878, when this cause was called for trial, it was ordered by the court that a fine of one hundred dollars be entered against the said sheriff of Tom Green County, Texas, for failure to return the same ; yet, notwithstanding said fine, the said sheriff has not up to this day returned said alias copias, but has wholly failed and neglected so to do, and this defendant is informed and verily believes that there has been an omission to enter said fine upon the records of this court, and that if said fine had been entered in conformity with orders of this court, this defendant believes said alias copias would have been returned as the law provides. That subsequently, to wit, on the 30th day of November, 1878, defendant had issued another attachment out of this honorable court, directed to said sheriff of Tom Green County, for said Fred Schroeder and Joseph Lang; that said attachment was placed in a sealed envelop, and stamped with a three-cent United States postage-stamp ; that it was directed as aforesaid, and mailed on the same day it'was issued, by this defendant’s attorney, J. R. Mason ; that the last-named attachment has not, up to this time, been returned. That the above-named witnesses are material to the defence in this case,” etc. * * *

We have copied so much of the defendant’s application for continuance because, in our estimation, it is the most material question presented in all the bills of exception.

We believe that the motion fails to show the diligence on the part of a defendant to procure the attendance of his witnesses, which is requisite on a second application for continuance. This application shows no diligence as to the witnesses Albert and Argyle Rhodes ; after their failure to appear at the June term of the court, no further process was applied for or issued for them. Issuance of process for collecting a fine is not the means provided by statute to be used on the part of the defendant to secure the attendance of his witnesses at his trial. And as to the witnesses Schroeder and Lang, the defendant should have applied for alias attachments for them, returnable to the next term of the court. Instead of doing this, he allowed both the June and October terms to pass, and did not apply for alias attachments for them until just two days before the term of the court began at which he was tried, and gives no sufficient reason for not doing so sooner. Before a second application for continuance is granted, it should show that the party applying has been guilty of no loches or neglect. We cannot say that the District Court erred in overruling the defendant’s application for continuance.

The defendant and deceased left Concho together, as is shown by the statement of facts, with a load of dried buffalo-meat, in an old wagon drawn by a yoke of oxen, for the city of San Antonio. The buffalo-meat belonged to them in partnership ; the wagon and oxen were claimed by the deceased. During the trial of the cause, the following question was propounded to Z. Van” Ward, one of the State’s witnesses, by the county attorney, upon his direct examination, to wit: “ Did the defendant recognize you in jail? ” To which defendant objected, on the ground that defendant was then under arrest; which objection the court overruled, and permitted the witness to testify as follows, to wit: “ He did.” To which ruling the defendant excepted, and took a bill of exceptions. This evidence was to identify the accused.

The witness Ward was the last person, so far as the record discloses, who saw Peter Maddox alive ; he was then in company with defendant, late on Sunday evening, near the residence of the witness, about three miles from the city of San Antonio. Defendant was next seen in San Antonio on the following Monday, and also on Tuesday, with said wagon and oxen, offering to sell the buffalo-meat. Maddox was not with him ; and on being asked, on Tuesday, where old man Maddox was, he replied, “Why, he is right around somewhere.” On the same morning the dead body of an old man was seen in the lower part of the city of San Antonio, in the San Antonio River, about eighty yards below the lower iron bridge across the river. The skull had been crushed by a severe blow on the fore part of the head with some dull, heavy instrument. There were no other marks of violence on the body. The dead body was carried to the poor-house and buried. On the next day it was disinterred, and identified as the body of Peter Maddox by several persons who knew the old man when alive. The defendant, in charge of an officer, was carried along at the time.

On the trial, John Dobbin, one of the State’s witnesses, proceeded to testify, upon his direct examination, as follows, to wit: “I placed the prisoner at the foot of the coffin.” The defendant here asked the court to instruct the witness not to state any thing the prisoner said or did, or how he acted, he then being under arrest. The court, however, permitted the witness to testify as to what the defendant did, and how he acted, by permitting the witness to testify as follows, to wit: “ He showed scarcely any emotion whatever until the body was raised, by my order, and placed in a sitting position; he then looked down, and acted as if he was swallowing with his mouth shut.” The witness was permitted to testify as to the acts, only, of the defendant. A bill of exceptions was taken to this ruling of the court.

While the confession of a defendant while under arrest shall not, as a general rule, be used against him, the conduct of the party, either before or after being charged with the offence, as indicative of a guilty mind, is proper to be laid before the jury; and Mr. Roscoe says this is a very useful kind of evidence, and one which no judge need seek to withdraw from the consideration of a jury. Roscoe’s Cr. Ev. 18, 19.

The objections urged in the sixth, seventh, eighth, and ninth bills of exception were not well taken. The identification of the axe and bedding, and the connection of the accused with them, were, we believe, sufficiently established. The court did not err in overruling defendant’s motion for a new trial. Most of the questions therein presented have been passed upon in this opinion.

When the State’s witness William Patterson was on the stand, and after the witness had, in the opinion of the court, stated fully enough for all practical purposes, — his residence and citizenship of many years in the State of Texas, and his present occupation,—counsel for the defence propounded to him other questions, touching his former occupation and different places of residence, stating that, as the witness was a comparative stranger in San Antonio, and as it was important for the jury to know some thing of the character of the person who was testifying, the questions were asked to show that the witness had led a wandering, unsettled, and adventurous life, going from State to State, never staying long in one place, and had been engaged in questionable transactions. Counsel for the State objected to any further question being propounded to the witness touching his former occupation and different places of residence, as irrelevant in this case. The court sustained the objections, and, we think, properly, for the reasons given by the court.

To have allowed any further inquiry of the bind would have resulted in the trial of the witness. To investigate the antecedents of a witness, without some purpose, would be a digression that would consume the time of the court for no useful purpose, and would lead to the wildest vagaries. The manner of impeaching the testimony of a witness is regulated by well-established rules of evidence, and it is obvious that the course of examination attempted cannot, and ought not, be adopted.

The charge of the court was a fair and able one, and covered all the points in the case. All the charges asked were given. The evidence shows that the wound on the head of the deceased produced his death ; that it was neither self-inflicted nor accidental, but was given by another, and was not the result of a momentary passionate impulse, but was the act of premeditation and cool deliberation.

The dependency of human life on this decision has compelled our attention to the case in its minutest points. We have found nothing in the record that would authorize us to reverse the judgment of the District Court, and it is, therefore, affirmed.

Affirmed.