Walker v. State

13 Tex. Ct. App. 618, 1883 Tex. Crim. App. LEXIS 60

• Court: Court of Appeals of Texas
• Decided: February 21, 1883
• Docket: No. 1370
• Status: Published

Opinion

Willson, J.

This cause has become a noted one in the judicial annals of this State, having been pending in the courts for more than ten years, and having several times been tried in the district courts, and convictions obtained, and those convictions reversed by the Supreme Court and by this court. A full history of the case may be had by reference to the several reports of it to be found in 37 Texas, 366; 42 Texas, 360; Id., 377; 1 Texas Court of Appeals, 368, and 3 Texas Court of Appeals, 668. Appellant Walker has been three times convicted of murder in the first degree, with his punishment on the first two convictions assessed at death. On the third and last conviction, from which this appeal is prosecuted, his punishment is assessed at confinement for life in the penitentiary.

A number of errors are assigned and insisted upon by appellant upon this appeal, which we will dispose of, but not in the order in which they appear in the record.

Assignments of error from second to fifth, inclusive, relate to the refusal of the court to give certain special charges requested by appellant’s counsel. Without entering upon a minute discussion of these refused charges, suffice it to say that in our opinion the charge of the court as given to the jury embraced all the law of the case as applicable to the evidence, clearly and correctly expressed, and is in all respects a fair, comprehensive and complete charge. As to charge number one, asked by appellant, it undertakes to explain to the jury the meaning of a reasonable doubt. Under the decisions of this court it was properly refused. (Massey v. The State, 1 Texas Ct. App., 563; Chapman v. The State, 3 Texas Ct. App., 67; Ham v. The State, 4 Texas Ct. App., 645; Bland v. The State, 4 Texas Ct. App., 15; Fury v. The State, 8 Texas Ct. App., 471.)

Charge number two, requested and refused, and which is strenuously insisted upon by appellant’s counsel as a proper charge, and not embraced in the general charge given to the jury, was, we think, correctly refused. It discusses the nature of dying declarations, and the rules by which the jury should be governed in considering such testimony. A charge must not philosophize as to the nature and force of a particular species of evidence. That is the peculiar province of the jury. (Harrison v. The State, 8 Texas Ct. App., 183; Bouldin v. The State, Id., 332; Hodde v. The State, Id., 382.) Furthermore, the evidence to which this charge related was not admissible alone as dying declarations, but was also admissible as res gestae, and was entitled to consideration by the jury as such. (Clark’s Cr. Laws, page 540, note, Res Gestœ; Brunet v. The State, 12 Texas Ct. App., 521; Black v. The State, 1 Texas Ct. App., 368, where this very evidence was held to be admissible as a part of the res gestœ.)

As to the other two charges asked and refused, they were not applicable to the evidence, and were not the law of the case as we understand it, and were properly refused.

In answer to the sixth assignment of error, we think it is sufficient to say that the verdict first returned into court being manifestly informal and insufficient, it was the duty of the court to refuse to receive it, and to call the attention of the jury to its defects, and direct them as to its correction. (Code Crim. Proc., Arts. 715, 716; Alston v. The State, 41 Texas, 39; Wooldridge v. The State, decided by this court at present term, ante, p. 443.)

That the verdict was received by the court on Sunday is the objection presented by the seventh assignment of error. This precise objection has been determined by this court, and it has been held that it is not error to receive a verdict on Sunday. (Shearman v. The State, 1 Texas Ct. App., 315; McKinney v. The State, 8 Texas Ct. App., 626.)

By the ninth assignment of error the sufficiency of the verdict as returned into court, and upon which the judgment of conviction is based, is called in question. This verdict, as we copy it from the judgment entry, the original not having been sent up with the record, reads as follows: “Wee the jurors finde the defendant gilty and of mrder in the first degree, and assess his confinement in the penetentiary for life.” It is objected to this verdict, 1, that it finds defendant guilty of no offense known to the law; and, 3, that it does not assess the punishment as required by law. It will be perceived that in the verdict the defendant is found guilty of mrder, the letter “u” being left out of the word which the jury evidently intended to use.

In the Wooldridge case, decided by this court at the present term {ante, 443), the rules governing verdicts in murder cases were elaborately discussed, and it is unnecessary for us to reiterate them. In that case the word “fist” was used in the verdict, instead of the word “first,” in finding the degree of the murder. It was held that these two words were well known and commonly used words, having entirely different meanings, and not sounding alike, and that the one could not be substituted for the other, or construed to mean the other, and that the verdict was insufficient. It was, however, expressly stated in the opinion in that case that, as the word “fist” used in the verdict did not have the sound of the word “first,” which should have been used, the question of idem sonans was eliminated from the case, and was not considered.

In the case before us the question of idem sonans does arise, and directly affects the verdict. If the word “mrder” us^d in the verdict is not idem sonans with the word “murder,” then manifestly this verdict is insufficient and must be set aside. But if the words are idem sonans, then the verdict must be sustained, notwithstanding the bad spelling of the word in the verdict, for it is well settled that incorrect orthography or ungrammatical language will not vitiate a verdict. (Taylor v. The State, 5 Texas Ct. App., 569; Koontzv. The State, 41 Texas, 570; McMillan v. The State, 7 Texas Ct. App., 100; Curry v. The State, Id., 91.)

In applying the doctrine of idem sonans, the rule is that if the words may be sounded alike without doing violence to the power of the letters found in the variant orthography, then the words are idem sonans, and the variance is immaterial. (Henry v. The State, 7 Texas Ct. App., 388; Ward v. The State, 28 Ala., 53; Gresham v. Walker, 10 Ala., 370; Gahan v. The People, 58 Ill., 160.)

Applying this rule to the word “mrder,” used ■ in the verdict, we hold it to be idem sonans with the word “murder,” as properly spelled, and that the variance in the authography of the two is not a material one, but that their sound is so nearly the same, when pronounced, that there is scarcely, if, in fact, any difference. They are not different words correctly spelled and not sounding alike, as in the Wooldridge case, before referred to, but are, in fact, the same word differently spelled, but sounding alike. We think, also, that the doctrine of idem sonans applies to and governs verdicts in the same manner, and to the some extent, that it does in other matters. (Haney v. The State, 2 Texas Ct. App., 504; Taylor v. The State, 5 Texas Ct. App., 569; Huffman v. Com., 6 Rand., Va., 685; Williams v. The State, 5 Texas Ct. App., 226; The State v. Smith, 33 La. Ann., 1414.)

In regard to the second objection urged to the verdict, that it does not assess the punishment as required by law, we do not think it is well taken. It is true that the verdict does not use the word “punishment,” nor is there any provision of law which requires that it should. In place of the word “punishment,” the word “confinement” is used in the verdict, which, to our minds, clearly conveys the meaning that the jury assessed his punishment at confinement, etc. Verdicts are to have a reasonable intendment, and to receive a reasonable construction, and are not to be avoided, unless from necessity, originating in doubt of their import, or immateriality of the issue found, or their manifest tendency to work injustice, or their failure to contain that which some express provision of statute requires they shall contain. (Williams v. The State, 5 Texas Ct. App., 226; Wooldridge v. The State, decided at present term, ante, p. 443; People v. Gilbert, 2 Crim. Law Mag., 283.)

Other assignments of error, necessary to be noticed and determined, relate to the action of the court in refusing defendant’s application for a continuance, and in overruling his motion for a new trial; and these assignments we shall consider together.

Defendant’s application for a continuance of the case was a first application, which is an unusual feature in cases of this character pending in the courts for so long a period of time. It was based upon the grounds of the absence of several of his witnesses, and of his leading counsel. It contained all the formal requisites of a first application as prescribed by the statute, and it is only necessary that we should consider it in reference to, first, the materiality of the testimony of the absent witnesses; second, the diligence used to obtain that testimony; and third, the sufficiency. of it upon the ground of the absence of his leading counsel.

First, as to the materiality of the testimony. By the witness Mrs. Alice Young he expected to prove that he was at his mother’s on the Sunday the murder occurred; that he, in company with Jeff Black, left his mother’s house in the afternoon, when the sun was about half an hour high, and went in the direction of Mr. Hugh Kelly’s, and that she watched them until they were about half way to Mr. Hugh Kelly’s. Taken in connection with the other evidence in the case, we cannot see the materiality of this testimony, because we think it was fully supplied by other evidence on the trial, and would only be cumulative evidence at most. It will be seen, by reference to the statement of facts, that Hugh Kelly, towards whose house Mrs. Alice Young saw the defendant and Jeff Black going, testified that they came to his house on the evening of the murder about a quarter of an hour by sun, and left there about sundown, having remained at his house about fifteen minutes. Heal Burdick, another witness, testified substantially as did Hugh Kelly. Another witness, Jerry Thornton, testified that on the same evening, about dark, he met the defendant and Jeff Black about one hundred yards from Hugh Kelly’s house, coming from the direction of the house. This evidence, we think, fully supplies the testimony of the absent witness, Mrs. Young, and no injury could possibly have resulted to the defendant because of the absence of her testimony. It has been held by this court, that if substantially the same testimony as that which is absent has been produced on the trial, the accused cannot complain, and such, we think, was the case as to the testimony of Mrs, Young. (Fisher v. The State, 4 Texas Ct. App., 181; McCarty v. The State, Id., 461.)

By the witness Efank Dirks defendant expected to prove that, soon after the murder of Butler1, the defendant telegraphed witness, who was then sheriff of Galveston county, to come and arrest him (defendant having heard that Dirks had a warrant for his arrest for the murder of Butler), and that Dirks did go, and that defendant voluntarily surrendered to him. This evidence, had it been offered, would not have been admissible. Declarations or acts of a defendant in his own favor, unless part of the res gestee, or of a confession offered by the prosecution, are not admissible for the defense. (Wharton’s Cr. Ev., sec, 690.) This evidence clearly could not be considered as part of the res gestee of the murder (Whart. Cr. Ev., sec. 262, et seq.), nor was it a confession offered by the State, nor was it in rebuttal of any fact proved or attempted to be proved by the State, as the flight, concealment, or other suspicious ^conduct of the defendant after the murder. As this case is presented to us by the statement of facts, we are clearly of the opinion that t e testimony of Dirks is incompetent, and therefore immateria , and that defendant has sustained no injury by not having it on the trial. Besides, it was indisputably proved on the trial by other witnesses that the 'defendant voluntarily surrendered o the officer of the law in a short time after he was accuse o the murder. (Bowen v. The State, 3 Texas Ct. App., 617; Krebs v. The State, 8 Texas Ct. App., 1.)

By the witness Sam. E Allen defendant expected to reproduce the testimony of a dr ¿ceased witness, Charles Lee, who had testified in his behalf o »•. Q fn.wor trial of the case.' That the tes i-him to obte This brim Xs us to used by d e^ndant with rpji| >ect to procu g the witness Allen, and the diligence used to reproduce the evidence of the deceased witness Lee.

Before proceeding farther upon this point, we will state that the application for continuance, as to the matter of diligence, was not controverted as might have been done at the time it was presented to the court. (Code Crim. Proc., Arts. 564-565.) But in his motion for a new trial the defendant made one of the grounds of the motion the refusal of the court to grant his application for a continuance. Thereupon the State took issue with the defendant upon the truth of the causes set forth in the motion for new trial, and upon that issue evidence was heard by the judge in relation to the sufficiency of the diligence used to obtain the testimony of the witness Allen, and to reproduce the testimony of the deceased witness Lee. This, we think, was warranted by the law, and cannot be complained of as error. (Code Crim. Proc., Art. 781.) In considering the question of diligence, therefore, we feel authorized to look not only to the application for continuance, but also to the evidence adduced upon the trial of the issue as to the truth of the causes set forth in the motion for a new trial.

Witness Allen was a resident of Harris county, the county site of which county, the city of Houston, is distant from the town of Liberty, where this cause was tried, about forty miles. At the time of the trial, and for some time previous thereto, there was constant daily communication by rail between the two places. In March, 1882, the witness Allen, at the instance of defendant, was attached to appear as a witness in the case at the March term, 1882, of the court, and was placed under bond. At the said March term the cause was continued by the State, but the witness Allen did not appear at said term, nor was his bond declared forfeited, nor was any other diligence used by defendant to compel his attendance until August, 1882, when defendant obtained another attachment to Harris county for this witness. This last attachment was returned not executed on the twenty-fourth day of September, 1882. This cause was not called for trial until the twenty-eighth day of September, 1882. Ho further efforts were made after the last attachment was returned, to compel the attendance of the witness, and no reason is shown why another attachment was not immediately forwarded to the sheriff of Harris county upon the return of not executed appearing upon the other. There was, we think, sufficient time, after [the attachment was returned on the twenty-fourth, to have sent another one, and to have had it executed in any part of Harris county, and have had the witness before the court by the twenty-eighth, the day on which the trial began. We think, therefore, that the diligence used to obtain the testimony of this witness, considering the facts, was insufficient, and that for this reason alone the court below might well refuse the application. (Fernandez v. The State, 4 Texas Ct. App., 419; Townsend v. The State, 5 Texas Ct. App., 574; Reynolds v. The State, 7 Texas Ct. App., 576.)

But it is further shown by the State that there was present at the trial, within the knowledge of the defendant, a witness who had on a former trial of the case been placed on the stand by defendant to reproduce the testimony of the deceased witness Lee, and who had reproduced it fully. This witness was not called by defendant to testify, and no reason is shown why he was not again called to reproduce the testimony of Lee. It is reasonable, to suppose that, as he had reproduced it once he could reproduce it again. Again, it was shown that throughout the trial defendant’s counsel had in their possession a duly certified copy of the testimony of the deceased witness Lee, which had been given on a former trial of the case, and had been reduced to writing and filed in the office of the clerk of the Criminal District Court of Galveston county. This was not offered in evidence by defendant, and no reason whatever was assigned why it was not offered. It would certainly, we think, have been admissible evidence, and if it contained the full evidence of the deceased witness Lee (and there was no pretense that it did not), then the defendant had in his possession on the trial all the - evidence that he could have obtained from the witness Allen, had he been present. (Rev. Stats., Art. 2252.)

It is true that upon a first application for a continuance the defendant is not required to state in his application that the absent testimony cannot be procured from any other source, but when, upon an issue made upon the truth of the causes for new trial, it is shown, as in this case we think it was, that he could have procured the same testimony from other sources, which were at his command on this trial, and that he chose to not avail himself of such sources, we cannot see that he has been deprived of any legal right, nor that he has been injured by the refusal to grant his application a continuance.

In regard to the other cause for continuance, the absence of his leading counsel, such cause might under some circumstances be sufficient to demand the continuance of a case. But this case does not present such facts as would, we think, entitle defendant to a continuance for this reason, nor is it shown that he suffered any injury on account of the absence of his leading counsel. He was ably and faithfully represented on the trial of the case by other counsel, as the record abundantly attests. (Boothe v. The State, 4 Texas Ct. App., 203.)

It is also urged that the motion for new trial should have been granted because the evidence .is not sufficient to support the verdict. We have carefully considered the evidence as presented in the statement of facts, and have no hesitancy in saying that it is sufficient to sustain the conviction. There is positive testimony, from the lips of the murdered man in his dying moments, and in a moment after he received his death wound, that the defendant was the man who had killed him. This statement of . the deceased was strongly corroborated by well attested circumstances pointing to the defendant as the murderer. It is unnecessary for us to detail these circumstances; but suffice it to say that in our judgment they are cogent, if not sufficient of themselves, to establish the guilt of the defendant. It is judicially known to this court that the defendant has been tried for this offense three times before the juries of the country, upon this same evidence substantially, and has been three times found guilty of murder in the first degree. It is also known to this court that throughout this prosecution he has been represented ably and faithfully by advocates distinguished for their great learning, eloquence and ability.

We are of the opinion that the defendant has had a most fair, impartial and complete trial—that every legal right has been fully accorded to him, and that his conviction is without error, and fully warranted by the law and the evidence; and we therefore in all things affirm the judgment.

Affirmed.

Opinion delivered February 21, 1883.

On Motion for Rehearing.

After a careful consideration of the very able and ingenious arguments of the learned counsel made in support of defendant’s motion for a rehearing, we are still of the opinion that this court has properly affirmed the judgment of conviction.

It is clear to our minds that the defendant’s application for' a continuance because of the absence of the witness Allen did not show sufficient diligence to obtain the testimony of that wit* ness. A witness is understood to disobey a subpoena or an attachment when he is not in attendance upon the court on the day set apart for taking up the criminal docket, or any day subsequent thereto, and before the final disposition or continuance of the particular case in which he is a witness. (Code Crim, Proc., Art. 482.)

At the term of the court previous to the trial of this case the witness Allen, although under bond to appear as a witness in the case in behalf of the defendant, did not appear, and this fact was or should have been known to the defendant. It was then the right of the defendant to demand a forfeiture of the witness’s bond, and to have an alias attachment for him. Failing" to avail himself of this means furnished him by the law for.enforcing the attendance of his witness, was a failure to use that diligence which the law required he should use. It was not incumbent upon the State to have the bond of the witness forfeited. It was the right of the State to demand the forfeiture, but the witness not being a State’s witness, it was not obligatory upon the State to enforce his attendance. But, although the defendant neglected to have forfeited the bail bond of the witness, yet he obtained an alias attachment for him returnable on the twenty-seventh day of September, the case being set for trial on the next day, and which attachment was returned not executed because after diligent search and inquiry the witness' could not be found, and this return is dated the twenty-fourth of September, at least three whole days before the day set for the trial. . It is contended that it was not shown by the State that the attachment was actually returned into court on the twenty-fourth of September, or when it was actually returned into court, and further that it was not shown by the State that the witness Allen, from the twenty-fourth to the twenty-eighth of September, was in Harris county.

We know of no rule of law which requires the State to show a want of diligence in opposition to a continuance. It devolves upon the defendant to show, affirmatively and distinctly, that he has used all the diligence to obtain his witness required by law. If the attachment was not returned into court until after the twenty-fourth, he should have averred that fact, and also the time when it was returned. If the witness Allen was not in Harris county, and could not have been reached by the process of the court in time to have him at the trial, it was incumbent upon the defendant, and not upon the State, to show such facts. Nothing is presumed in aid of an application for a continuance, but the burden is upon the party seeking a continuance to show himself entitled to it by definite, exact and certain averments. (Cantu v. The State, 1 Texas Ct. App., 402; Murray v. The State, Id., 417; Buie v. The State, Id. 452; Bowen v. The State, 3 Texas Ct. App., 617; Robles v. The State, 5 Texas Ct. App., 346.)

Again, at the term of the court at which the trial was had, the witness again being absent, it was the right of the defendant to have his bond forfeited, and to have an alias attachment for him on the day set apart for taking up the criminal docket, or on any day subsequent thereto. (Code Crim. Proc., Art. 482.) This was his right, notwithstanding an alias attachment had previously issued returnable on the twenty-seventh of September. It was no business of the witness that the cause had been set for trial on the twenty-eighth of September. He was no party to that action of the court, and, perhaps, had no knowledge of it. His duty as a witness was prescribed by law, and that was to be present on the day set for taking up the criminal docket, and, failing to be then present, it was the defendant’s right and duty to have his bond forfeited, and to have alias process issued to enforce his attendance; and if these legal steps had been taken, the attendance of the witness would in all probability have been enforced. In addition to the want of diligence pointed out in the original opinion of this court, we have thought proper, in answer to the motion for rehearing, to call attention, also, to the foregoing, in order to show, as we think conclusively, that the application for continuance was, upon its face, insufficient, because it failed to show that the diligence required by law to obtain the witness Allen had been used. This failure to show diligence is of itself sufficient to sustain the ruling of the trial court in refusing the application. •

But, as we have heretofore held, conceding that the diligence was sufficient, we are still of the opinion that the defendant’s motion for a new trial was properly overruled. It is provided that “new trials, in cases of felony, shall be granted for the following causes, and for no other;” and among the causes specified there is but one which would embrace the causes set forth in the defendant’s motion for a new trial, and that is as follows: “Where the court has misdirected the jury as to the law, or has committed any other material error calculated to injure the rights of the defendant.” (Code Crim. Proc., Art. 672.) Was it a material error calculated to injure the rights of the defendant that the court refused his application for a continuance? Under the facts of this case, as developed upon the trial of the motion for a new trial, we cannot say that it was. It devolved upon the defendant to show that the action of the court was calculated to injure his rights; otherwise he showed no cause for a new' trial. It was proved that he had it within his power to reproduce the testimony of the deceased witness Lee, by another witness present at the trial. He knew this, but chose to not avail himself of it. It may be that the witness was not worthy of credit. If so, it was incumbent upon the defendant to show that fact, or some other reason why he did not make use of the witness. He also had within his reach the written evidence of Lee taken on a former trial of the case, and this he did not use or offer to use. This written evidence may, or it may not, have been admissible. In the opinion of this court rendered some days ago it was said that we thought this evidence was admissible. We made this statement under the belief that the evidence was that taken before an examining court, or before a court hearing the cause on habeas corpus, in either of which cases it would, we think, be admissible. It is now argued by defendant’s counsel that this written evidence was embraced in a statement of facts taken and prepared upon a former trial of the cause. If ’ this be so, there is some doubt in our minds as to its admissibility, but we are by no means ready to say that it would not be admissible for the purpose of reproducing the evidence of a deceased witness. As this is a question which has never been determined by this court, and one which would require considerable investigation, and as it is not necessary to a disposition of this case that we should now determine it, we decline to do so. If the evidence was admissible, then it should have been offered by the defendant. If it was inadmissible he was not bound to attempt to avail himself of it. It is not shown by the record definitely that the evidence was clearly admissible, and this, we think, it devolved upon the State to show, and having failed to show it, we do not think the failure to use or offer to use the evidence should have any weight in considering the merits of defendant’s motion for a new trial; and in so far as the opinion in this case considered it as having weight against the motion, we think we committed an error, being led into this error by the impression made upon our minds from the record that the written evidence was that taken before an examining court, or on trial upon habeas corpus. But, after discarding from the case this matter of the written evidence, the fact still remains that it was within the power of the defendant, by a witness then present, to reproduce the evidence of the dead witness Lee, and if he chose to speculate upon the chances of reversing a judgment of conviction in case he should be convicted, by the supposed error of the court in overruling his application for a continuance, he cannot be heard to complain that h,is rights have been injured; for, if injured, the injury has been the result of his own action, and cannot be imputed to the court.

As to the sufficiency of the verdict, we have heretofore said as much as is necessary to be said upon that subject. We have been much edified by the learned philological disquisition of defendant’s counsel, endeavoring to convince us that mrcler is not idem sonans with murder. While we admire the ingenuity of these arguments, we cannot concede their soundness when applied to the question discussed, and we have not been shaken in the deliberate conclusion we arrived at in the decision of the case, as to the sufficiency of the verdict. Motion for rehearing overruled.

Rehearing refused.

Opinion delivered March 21, 1883.