Moore v. State

96 S.W. 321, 49 Tex. Crim. 499, 1906 Tex. Crim. App. LEXIS 146

Opinions

DAVIDS OH, Presiding Judge.

Appellant was convicted of manslaughter, and his punishment fixed at five years confinement in the penitentiary. The opinion delivered on the former appeal is found in 10 Texas Ct. Rep., 26. To dispose of some of the questions arising on the plea to the jurisdiction and the motion to change the venue, it is necessary to recite a brief history of the case. The killing occurred in Lamar County, and on change of venue was transferred to Fannin County. Conviction was had. Appeal was prosecuted resulting in a reversal, because of error in changing the venue to Fannin County. When the case was first called in Lamar County, motion was made by appellant to change the venue to Red River or Delta County. After hearing the testimony the court, as before stated, sent the case to Fannin County. One of the questions upon which reversal occurred was the order of the court changing the venue to Fannin County. When the mandate was returned to the District Court of Fannin County, the court there entered an order returning the case to Lamar County. It is urged that by the peculiar verbiage of the judgment retransfering the' case the prosecution was actually dismissed from the docket, and therefore it was necessary to find another indictment in order to further prosecute appellant. The judgment retransfering the case, among other things recites that the venue in said cause had been improperly and erroneously changed to Fannin County, Texas, from the District Court of Lamar County, at a former term of said District Court of Lamar County; and it further appearing that by reason thereof the District Court of Fannin County has no jurisdiction of said cause. It is ordered, adjudged and decreed by the court that said cause be stricken from the docket of this court, and the cause be transferred back to the District Court of Lamar County, of the 6th judicial district, and that the clerk of this court transmit to the clerk of the District Court of Lamar County, for the 6th judicial district, forthwith, all of the papers, records and mandates in this cause, together with the bill of indictment and the appearance bond of defendant herein, to be refiled and docketed by said clerk of the District Court of Lamar County, Texas, on the docket of said court, together with a certified copy of this order and decree.” We cannot concur with the view of counsel that this was a dismissal of the prosecution. The wording of the decree and order itself excludes this idea, and shows the only purpose of entering the decree was to retransfer the case to Lamar County in obedience to the mandate of the court of criminal appeals. There is nothing to indicate the purpose on the part of the State in making the motion to retransfer, or the court in entering the judgment thereon, to dismiss the prosecution. The only purpose was to send the case back to Lamar County. Nor do we think that article 471, Code Criminal Procedure, has any reference to cases that have been improperly transferred on change of venue. That article has reference only to cases that have been improperly transferred from one court to another in the county where the indictment was preferred; that is, from a court not having jurisdiction to one that did. It has no connection with or relation to transfers on change of venue where the cases go from one county to another. When the court met in Lamar County, the judge transferred the case on change of venue to Delta County, and it seems from the bill of exceptions and the record, that he used the former application of the appellant to change the venue as the basis for his action. We will let that matter rest, with the statement that a bill of exceptions was not reserved in Lamar County, to the action of the court changing the venue to Delta County. In order to bring before the court for review on appeal the action of the court changing the venue from one county to another, a bill of exceptions must be reserved in the county from which the venue was changed. This was not done.

When the case was called in Delta County for trial, plea to the jurisdiction was urged, insisting that the prosecution had been dismissed in Fannin County. It was further urged that the change of venue should have gone from Fannin to Bed Biver. We do not purpose discussing this matter any further, and dispose of it by the statement that a bill of exceptions was not reserved as above stated.

This motion having been overruled, appellant filed an application to change the venue from Delta to Bed Biver County. The evidence introduced and the grounds relied upon as a basis for this change of venue was the former decree in Lamar County, wherein the court adjudicated, in the first instance, that the same condition of things existed in Delta as in Lamar County, and in which the court refused to change the venue to Delta on account of such condition. The State controverted this, and introduced in support thereof the testimony of the sheriff of Delta County. His evidence was to the effect that there was no such prejudice against appellant as precluded a fair trial; and further attacked the only compurgator of appellant, by showing he was a comparative stranger in the county, not having lived there more than one or two years; and that his means of knowledge were not sufficient to justify his supporting affidavit. The circumstances found by the court existing in Delta County originally may have been true or not. Even if they were true at the time the court so held, it would not be conclusive evidence of the fact that the condition of public sentiment had not changed, and it would not be sufficient as a predicate for this court to hold erroneous the ruling of the trial court in the subsequent application. In order to hate raised such question properly, the condition of the public sentiment in regard to appellant, and that it was adverse, should have been made to appear by the evidence and incorporated in bill of exceptions on the second application. The fact that the court had at a former term in Lamar County, adjudicated that the circumstances were adverse to appellant having a fair trial in Delta County, was not a sufficient basis for the change of venue on the subsequent application from Delta County. As we understand the law in this State, the fact that prejudice may exist at one term of the court is not evidence that it exists at a subsequent term. The condition of the public feeling may have undergone a change, and the only evidence we have in regard to it, is from the sheriff, which shows that there was no such prejudice in the county as militated against a fair and impartial trial. So there was no error in the court refusing to change the venue from Delta to Bed Biver County as this record presents the matter to this court.

Miss Jennings testified that she saw defendant, just before the shooting, coming towards South Main street, along the partition fence between defendant’s house and the Brown house, where deceased then was with the gun in his hand. The State then asked the following question: “Did the defendant stoop as he came along the fence with the gun in his hand.” Objection was urged to this question as being leading and suggestive of the desired answer; and that it was intended by this to show that appellant was slipping up on the deceased. The objections being overruled, she answered in the affirmative. While the question may have been somewhat leading in its character, yet the answer was proper, if the question had been free from the intimation of its being leading. It is hardly sufficiently suggestive of an answer on the part of the witness that appellant was slipping up on the deceased. The fact that he was going along the fence in a stooping position was clearly admissible; and if it be conceded that the question was leading in its character, still it is not of sufficient importance to require a reversal. But it did not necessarily suggest an affirmative answer.

Dr. Hooks was asked if he saw a stranger or anybody place a pistol in the pocket of deceased while stooping over him; and whether or not he knew a pistol was placed in the pocket of deceased while lying on the ground. Objection was urged, and overruled; and the answer was in the negative. This could not have injured appellant. An affirmative answer might have possibly made this ruling error. But as the answer was in the negative there was nothing drawn out from the witness calculated to injure appellant.

Appellant on cross-examination was asked, whether or not there had ever been any charge against McLaughlin, the deceased, except the one in which the difficulty occurred between appellant and McLaughlin. The answer was in the negative. The objection was that it tended to place McLaughlin’s character in issue before the jury. The court qualifies the bill by stating that appellant had voluntarily testified to some reports in regard to the deceased seeking to burn certain houses. Whether this qualification has anything to do with the bill or not, we do not see how this testimony could have injured appellant. He was relying upon threats made by deceased. Deceased had made a previous assault upon appellant, which was shown. We do not believe there was any error in admitting this testimony. Nor is it in conflict with the former opinion of this court in this case, where the State was erroneously permitted to prove the good character of deceased and his.chivalrous bearing toward women.

Witness Maxwell was permitted to testify that when he entered the store where deceased was lying on his back, with his head in Mrs. Brene^ man’s lap, he was struggling and groaning and in great agony; and that he exclaimed, “Why did he do it ?” This was in a very few moments after the shooting occurred. Witness had gone hurriedly the distance of about one hundred yards; and deceased was shown to be in great agony —precluding the idea of a concocted story. It was not urged that this was an opinion of the witness, put in the form of a query. The main insistence was, that it was not res gestas; and did not preclude the idea that parties had so worked upon his mind as to induce him to make the statement. The bill of exceptions shows none of the environments further than as stated, and we think precludes any idea of a concocted story.

Nor was there any error in admitting in evidence the indictment against deceased, charging him with an aggravated assault upon appellant. This was a previous matter, and it was introducable for the purpose of showing the relations of the parties and the motive on the part of appellant. Crass v. State, 31 Texas Crim. Rep., 312.

Objection is urged to the 13th, 14th and 15th paragraphs of the charge, because they made appellant’s right of self-defense depend upon the fact that he was “attacked” by deceased. These charges, taken as a whole are not subject to this criticism, as we understand them; but present clearly, in appellant’s favor the law of self-defense. To illustrate, the court charges the jury: “Homicide is justifiable and is no offense against the law when committed in necessary self-defense, this occurs, when one is attacked in such a manner as to produce in his mind a reasonable apprehension of death or serious bodily injury, or where it reasonably appears to one from the act or acts coupled with the words of the person killed that he, the slayer, is thereby in danger of death or serious bodily injury, and he kills to protect himself from such danger, then such killing is deemed to be justifiable self-defense.” Again: “When a person is attacked by his adversary, and his adversary makes a demonstration as if to draw a weapon and his adversary retreats, and it reasonably appears to the person so attacked or against whom the demonstration is made that his adversary is only retreating for the purpose of getting into a better attitude or condition to carry on or renew such attack, then the person so attacked, or the person against whom the demonstration has been made has the right to inflict violence upon his adversary so long as such reasonable appearances of danger continue.” The same charge is given in connection with threats. This charge is favorable to appellant. It is true that he charges with reference to an attack, but the charge goes further, and gives the appearances of danger independent of the attack, and in the alternative. So it places before the jury two avenues of escape for appellant along the theory of self-defense, independent of threats; and then, in addition gives the same charges in connection with threats. Swain’s case, 12 Texas Ct. Rep., 812; Phipps v. State, 34 Texas Crim. Rep., 560, and 608, are not in point. In those cases the charge on self-defense confined appellant’s right to an attack, omitting the question of appearances of danger from any other view than from such attack. In this case, however, he is given the benefit of both theories, and instead of it being injurious, in our judgment it was favorable to appellant.

Appellant assigns error on the recitation in the judgment, that the verdict was received and the judgment entered on June 25, 1905, and that this court judicially knows that day was Sunday. It is shown that the case came on for trial on the 20th of June. The judgment makes the following recitation, in regard to the return of the jury into court, to wit: “June 25, 1905, were brought into open court, by the proper officer, and defendant and his counsel being present, and in due form of law returned into open court, the following verdict, which was received by the court and is here now entered upon the minutes of the court to wit:” and then follows the verdict. It is contended'that the court will take judicial knowledge of the fact that June 25, 1905, was Sunday. Concede this to be true, this recitation does not show that the judgment was entered on that day. It simply recites the fact that the verdict was received and entered upon the minutes of the court. As to the legal authority for this act, there can be no question. This is not a sufficient showing that the judgment was entered on Sunday, and it will be noted in this connection that the point was raised for the first time on appeal and was not urged in the court below. If as a matter of fact the judgment was entered on Sunday, it was easily susceptible of proof. There is no evidence showing that the judgment was so entered, and the recitations in the judgment do not manifest that the judgment was entered on Sunday. Brown v. State, 32 Texas Crim. Rep., 119. It is unnecessary, in the condition of the record as this point is presented, to discuss further the question as to whether a judgment can be entered on Sunday, where the verdict is returned on that day. It is not shown that such was the case here, and therefore we do not discuss that phase of the law.

Without reviewing the bills of exception at length in regard to the argument of attorneys for the prosecution, we are of opinion that as qualified by the trial judge, the argument did not go sufficiently beyond what was right and proper to authorize a reversal. Much of the argument complained of was in reply to statements made by appellant’s counsel. As the record is presented to us we do not believe the errors complained of are of such importance as require a reversal of the judgmen, and it is therefore affirmed.

Affirmed.