Villareal v. State

Court of Criminal Appeals of Texas

Villareal v. State

199 S.W. 643, 82 Tex. Crim. 327, 1917 Tex. Crim. App. LEXIS 363

CourtCourt of Criminal Appeals of Texas

DecidedDecember 5, 1917

DocketNo. 4740.

StatusPublished

Cited by1 cases

This text of 199 S.W. 643 (Villareal 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.

Bluebook

Villareal v. State, 199 S.W. 643, 82 Tex. Crim. 327, 1917 Tex. Crim. App. LEXIS 363 (Tex. 1917).

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Opinions

*328 DAVIDSON, Presiding Judge.

Appellant was placed on his trial for killing Canuto Ornelas in Beeves County. After empaneling the jury and entering plea of not guilty, the State had advanced far enough in the introduction of its testimony to place on the stand Dr. Cortez, by whom it was expected to lay the predicate for the introduction of' the dying declaration of deceased. .His testimony was not very satisfactory and left it in doubt as to a belief of deceased with reference to his hope of recovery. At this point the district attorney claimed he was surprised, and requested the court to withdraw the case from the jury and continue it. This request was in writing, and states the fact that there was an ¿bsent witness who lived about eighty miles from the town of Pecos, where the trial was being had. Without the consent and over the protest of appellant the court granted the request, discharged the jury and continued the casé. The court then of his own motion transferred the ease to Ward County, which adjoins the county in which the homicide occurred. When the case was called for trial in the latter county appellant filed his plea of jeopardy. Pacts were introduced to support it, and there seems to have been no controversy about the facts. This was not submitted to the jury by the court. The facts were conceded, but not only so, evidence was introduced to prove the plea. All these matters are made to appear properly. The plea was well taken, and should have been sustained. See Vestal v. State, 3 Texas Crim. App., 648; Pizano v. State, 20 Texas Crim. App., 139; Schulman v. State, 76 Texas Crim. Rep., 229; Hipple v. State, 191 S. W. Rep., 1151. We deem it hardly worth while to disduss this question at length for the reason it seems to be too well settled for discussion. When a party is placed upon his trial and a plea of not guilty is entered before the sworn jury, jeopardy attaches. There may be circumstances under which the jury may be discharged without incurring jeopardy. Those circumstances are not here involved. If it were necessary, it could be stated from the record that there were other witnsses by whom the dying declaration could be proved and circumstances under which it was made, and in addition thereto the justice of the peace took it in writing, to which the deceased was sworn. The only question, however, is the district attorney was not enabled to properly lay the predicate for the introduction of the dying declaration by Dr. Cortez. It might be further stated that the absent witness named by the district attorney, who was something like eighty miles away, could have been brought before the court in a very short time. The rapid means of •transportation in these days would not have made it impossible to have had this witness within even twelve hours, and if it was thought necessary a" postponement might have been asked or the case proceeded along other lines until the witness was brought before the court. The round trip would have been 160 miles, and under the service of automobiles these days eight or ten hours would have been ample time in which to have secured the presence of this absent witness. It might be also stated in this connection that the absent witness was before the court *329 and testified on the trial in Ward County and failed to lay the predicate, as we understand his testimony. These matters are mentioned, but so far as the plea is concerned it was well taken independent of any of those matters. The authorities cited cover this case. The plea was well taken, and the facts being conceded, should have obtained. In this connection it is also stated that there was error on the part of the court in not submitting the plea to the jury. Wherever a plea of this character is interposed and the facts are introduced in its support, the court should submit it to the jury.

The judgment is reversed and the cause remanded.

Reversed and remanded.

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*328 DAVIDSON, Presiding Judge.

Appellant was placed on his trial for killing Canuto Ornelas in Beeves County. After empaneling the jury and entering plea of not guilty, the State had advanced far enough in the introduction of its testimony to place on the stand Dr. Cortez, by whom it was expected to lay the predicate for the introduction of' the dying declaration of deceased. .His testimony was not very satisfactory and left it in doubt as to a belief of deceased with reference to his hope of recovery. At this point the district attorney claimed he was surprised, and requested the court to withdraw the case from the jury and continue it. This request was in writing, and states the fact that there was an ¿bsent witness who lived about eighty miles from the town of Pecos, where the trial was being had. Without the consent and over the protest of appellant the court granted the request, discharged the jury and continued the casé. The court then of his own motion transferred the ease to Ward County, which adjoins the county in which the homicide occurred. When the case was called for trial in the latter county appellant filed his plea of jeopardy. Pacts were introduced to support it, and there seems to have been no controversy about the facts. This was not submitted to the jury by the court. The facts were conceded, but not only so, evidence was introduced to prove the plea. All these matters are made to appear properly. The plea was well taken, and should have been sustained. See Vestal v. State, 3 Texas Crim. App., 648; Pizano v. State, 20 Texas Crim. App., 139; Schulman v. State, 76 Texas Crim. Rep., 229; Hipple v. State, 191 S. W. Rep., 1151. We deem it hardly worth while to disduss this question at length for the reason it seems to be too well settled for discussion. When a party is placed upon his trial and a plea of not guilty is entered before the sworn jury, jeopardy attaches. There may be circumstances under which the jury may be discharged without incurring jeopardy. Those circumstances are not here involved. If it were necessary, it could be stated from the record that there were other witnsses by whom the dying declaration could be proved and circumstances under which it was made, and in addition thereto the justice of the peace took it in writing, to which the deceased was sworn. The only question, however, is the district attorney was not enabled to properly lay the predicate for the introduction of the dying declaration by Dr. Cortez. It might be further stated that the absent witness named by the district attorney, who was something like eighty miles away, could have been brought before the court in a very short time. The rapid means of •transportation in these days would not have made it impossible to have had this witness within even twelve hours, and if it was thought necessary a" postponement might have been asked or the case proceeded along other lines until the witness was brought before the court. The round trip would have been 160 miles, and under the service of automobiles these days eight or ten hours would have been ample time in which to have secured the presence of this absent witness. It might be also stated in this connection that the absent witness was before the court *329 and testified on the trial in Ward County and failed to lay the predicate, as we understand his testimony. These matters are mentioned, but so far as the plea is concerned it was well taken independent of any of those matters. The authorities cited cover this case. The plea was well taken, and the facts being conceded, should have obtained. In this connection it is also stated that there was error on the part of the court in not submitting the plea to the jury. Wherever a plea of this character is interposed and the facts are introduced in its support, the court should submit it to the jury.

The judgment is reversed and the cause remanded.

Reversed and remanded.

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199 S.W. 643, 82 Tex. Crim. 327, 1917 Tex. Crim. App. LEXIS 363, Counsel Stack Legal Research, https://law.counselstack.com/opinion/villareal-v-state-texcrimapp-1917.

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