Mitchell v. State

78 S.W.2d 198, 127 Tex. Crim. 623, 1934 Tex. Crim. App. LEXIS 489

Opinions

LATTIMORE, Judge.

Conviction for murder; punishment, ninety-nine years in the penitentiary.

Deceased was a police officer in the city of Waco, and apparently attempted to arrest appellant, who was carrying a pistol. A struggle ensued in which deceased was shot through the head and killed. After he had fallen, the testimony shows that appellant beat the head of deceased into a pulp with deceased’s own pistol. We think the facts sufficient to justify the jury’s verdict.

The record contains but one bill of exceptions, which presents appellant’s complaint of the refusal of his motion for a ■continuance. It is shown that following his indictment for murder, appellant sued out a writ of habeas corpus in an effort to secure bail, and upon a hearing was remanded without bail, and appealed to this court. The habeas corpus hearing was had August 9, 1933. Thereafter and on August 21st appellant’s main case was called for trial. He moved for a continuance on the ground that the Court of Criminal Appeals had not passed on his appeal in the matter of bail. The motion for continuance was overruled, he was convicted and given the punishment above mentioned. As authority for his contention that the court committed error in the matter referred to, appellant cites article 1, section 11 of our Constitution; Streight v. State, 62 Texas Crim. Rep., 453; Choice v. State, 52 Texas Crim. Rep., 285; Spencer v. State, 52 Texas Crim. Rep., 289, and Click v. State, 118 Texas Crim. Rep., 404. These authorities have all been examined. Our Constitution but provides that all prisoners shall be bailable by sufficient sureties, unless for capital offenses. The Streight case, supra, was on unusual facts, as appears from the opinion, it being set out that after indictment for murder Mrs. Streight asked, by a habeas corpus, for a hearing for bail, which was set down for October 11th. Later the court set her main case for the same day. On that day she asked that she be given a hearing on her application for bail, which was refused, and she was put to trial for murder and convicted. On appeal, among numerous other matters held erroneous, this court held that Mrs. Streight was improperly denied her right to a hearing upon her application for bail. In substance the same holding appears in Click v. State, supra, in which case it appears that after the main case was set down for trial, for a day certain, an application by means of a habeas corpus for bail was made, it being presented some seven or eight days before the date of trial, and it was further shown that appellant insisted upon a hearing so that if allowed bail, same might be made before trial. There is no doubt of the fact that bail is not only a matter of right in bailable cases, but that it is also a right of value to the accused, and trial courts should not do as is suggested in the opinion in the Streight case, supra, “Deliberately set the case for trial so as to prevent a hearing on the habeas corpus matter.” Nothing in this record supports any contention that appellant was not properly given a hearing on his habeas corpus application, but we do not think he can find support for a proposition that simply because under our laws he can have a hearing in the appellate court as well as in the court a quo, that ergo he is entitled to delay the trial of his main case, and obtain a continuance thereof simply to give the appellate court time to pass on his appeal in the habeas corpus matter and determine whether he is entitled to bail. We might reason about the matter, — for it is apparent that even if allowed bail in a murder case such as this, there would still remain the unsolved problem of the amount of such bail, and the ability of the accused to make it, — added to the uncertainty as to when the case would be reached and decided in the appellate courts, all of which make difficult the rule laid down in many cases, that in an application for a continuance the accused must show himself entitled thereto by definite, exact and certain averments. To grant a continuance upon the contingencies here involved would clearly be to attach one presumption to another. In the instant case, on the question of the ability of the accused to make bail, we note that the statement of the testimony heard by the trial court on the habeas corpus hearing is set out in the bill of exceptions presenting this complaint. In same it appears that , the only witness as to the ability of appellant to make bail was his brother, who swore that none of appellant’s relatives were people of means, — nor did appellant have any rich or influential friends who could make his bond, and on cross-examination this witness said: “I don’t know of anybody at all who would sign his bond.”

However, in view of what we said in the Streight case, supra, to-wit: "Of course, the court should not permit continuances to be secured by merely filing an application on the day set for trial of a case, or so short a time before that day as to render it impossible to hear it before the day set for the trial. But in this case the application was made almost immediately after indictment found and before the main case was set for trial, and the court should not then have deliberately set the case for trial so as to prevent a hearing in the habeas corpus matter. Upon a proper showing the habeas corpus should always be heard, but it should never be permitted to be so used as to continue a case.” (Italics ours.) And also what we said in Sapp v. State, 87 Texas Crim. Rep., 612, we deem the matter one of settled law in this State. In the Sapp case we approved what had-been said in the Streight case, and held that the accused was not entitled to continue the case to await the action of the appellate court on his appeal regarding his bail. Examining the record in the Sapp case, which is on file in the office of the clerk of this court, we observe that Sapp had been denied bail on a habeas corpus hearing, and had appealed to the Court of Criminal Appeals, where the appeal was pending when his main case was called for trial in the lower court, and that he then asked a continuance until his appeal in the habeas corpus matter could be passed on, the question there being almost exactly similar to the one under discussion.

By and large appellant has something over fifty exceptions to the court’s charge. We have carefully considered the charge of the court and are not able to agree that any of the exceptions are well taken. Analysis and discussion of same would but lengthen this opinion without profit to the accused, or enlightenment to the profession or addition to the value of the precdents. We have gone over all the exceptions together with the exhaustive charge given by the learned trial judge, in the light of appellant’s brief, and believe that every legal phase of this case was properly covered by the charge.

Finding no error in the record, the judgment will be affirmed.

Affirmed.

Reported in 126 Texas Crim. Rep., 25.