Mitchell v. State , 36 Tex. Crim. 278 ( 1895 )

Appellant was tried in the court below on the charge of murder, was convicted of murder in the second degree, and given five years in the penitentiary. From said judgment and sentence he prosecutes this appeal. Appellant made a motion for a continuance, which was overruled by the court. He presented the same question in a motion for a new trial, which was also overruled, and he assigns the action of the court in this regard as error. Appellant desired to continue the case on account of the absence of the following witnesses, alleged to reside in Fort Bend County, to-wit: W. McNeal, George Harvey, Henry King and Johnnie Williams, and for the witnesses, Steve Bland, Mayfield Williams and B. Chancery, alleged to reside in Harris County. With respect to the witnesses in Fort Bend County, we are of the opinion that the appellant failed to show proper diligence. The indictment was found in this case on the 27th day of September, 1895, and on the 1st day of October appellant applied for and had subpœnas issued to Fort Bend County for said witnesses. The case was called for trial on the 9th day of October. The application recites that the subpœna was now in court. It does not show when it was returned, nor how far said witnesses lived from the county seat. If the process had been returned several days before the case was called, and the witnesses were absent, it was the duty of appellant to have obtained attachments for said witnesses; and when the case was called for trial, it was three or four days before the evidence closed in the case, and yet no effort is shown in the application to obtain the attendance of said witnesses. We reasonably presume that, if they lived in the county, their attendance could have been secured by any reasonable effort on the part of appellant before the close of the testimony. By the absent witnesses, McNeal, King and Johnnie Williams, the appellant alleges that he expected to prove that they were in the town of Richmond on the night of the homicide, and at the time it occurred, and saw two of the principal State's witnesses, to-wit: Sophia Hunter and Annie Collins, some of them seeing one and some the other, and that at the time the shot was fired said witnesses were in such position and locality that they could not have seen the homicide or any part of it, as they testified to on the trial of the case. Now, conceding that proper diligence was used to procure the attendance of said witnesses in this case, still if the testimony of the two State's witnesses, whose evidence it is proposed to impeach, is eliminated from this case, which is the object of the absent testimony, yet we fail to see how it would affect the result reached on the trial. Looking to the appellant's testimony, the most that can be said is that Kane Neal killed the deceased, and not Mitchell, the appellant; but the testimony of one or more of said witnesses for the appellant shows that, at the very time of the homicide, in pursuance of an agreement between the parties, the appellant, in company with Neal, was pursuing the deceased, and was present at the very time he was killed, and was participating in the homicide, and the testimony of a number of other witnesses on the part of appellant tends circumstantially to establish the same fact. The same observations will hold good as to the witnesses for whom attachments were issued to Harris County, namely: Steve Bland and Mayfield Williams; and, moreover, we would remark, as to the Harris County witnesses, that one of them, to-wit: Chancery, by whom, according to the application of appellant, more testimony of a more material character for appellant could be elicited than by either of the other witnesses — that before the beginning of the argument in the case, said witness, Chancery, was produced and brought into court, and no effort was made on the part of the appellant to avail himself of his testimony. If the appellant failed to avail himself of the best witness he had, according to his affidavit, when it was within his power to produce them before the jury, we cannot reasonably presume that he would have used the other witnesses had they been present. We would further observe, that the application shows that the writs of attachment for said witnesses to Harris County were not returned. It was his privilege to have caused other writs to issue, and to have made a motion requiring the Harris County officer to make return of said writs, yet the appellant failed to do either, and so was lacking in diligence.

In regard to the special venireman, Packer, the court used proper diligence to obtain his presence, and a reasonable time was awarded to secure his attendance, which was unsuccessful, and there was no error in skipping his name and proceeding with the impaneling of the jury. The same observations may be remarked about the venireman, Stratman. Article 640 of the Code of Criminal Procedure provides, that no cause shall be unreasonably delayed on account of the absence of those who have been summoned. With reference to the venireman, T.W. Ayler, it appears that the list furnished the appellant contained the name of T.W. Oyler, which bore the number 27. When this number was reached, "T.W. Ayler" was called, instead of "T.W. Oyler." Appellant objected to examining and passing upon Ayler, contending that Oyler should be called. It does not appear that Oyler had been drawn or served, the rule being that where a juror is misnamed in the copy of the special venire served upon the defendant, it is the proper practice to stand him aside. Thompson v. State, 19 Tex.Crim. App., 594; Swofford v. State, 3 Tex.Crim. App., 77; Bowen v. State, Id, 618; Hudson v. State, 28 Tex.Crim. App., 323; Hubbard v. State, 72 Ala. 164. The 100th name on the special venire, as drawn, was one Priester. In the copy served upon the defendant, this name was Briester. Appellant made the same objections, when this name was reached, as he did with reference to Ayler. There is nothing in the bill of exceptions to show that Briester had been drawn on the special venire, or that such a man existed. The court overruled the objection, to which appellant excepted. We make the same reply, supported by the same authorities, with reference to this venireman, that we have to the venireman, Ayler. The court excused the venireman, H.R. Chapman, on the ground that he was hard of hearing, and not able to understand the proceedings in court. The appellant objected to this, and reserved his bill of exceptions. In this action of the court there was no error. There was no error in the court charging the law of murder of the first degree, the appellant having been convicted of murder in the second degree. This charge is frequently necessary in order to clearly draw the distinction between the two degrees. Nor was there any testimony in this case calling for a charge upon negligent homicide. If Neal and this appellant agreed and combined to do an unlawful act, such as to beat the deceased, and the deceased was killed by Neal in the attempt to execute the common purpose, the appellant would be guilty of murder, and nothing less, though he had not contemplated the death of deceased. The charge of the court is more liberal on this point than the appellant was entitled to. If the appellant killed the deceased, which is supported by very strong testimony, he was evidently guilty of murder. If Neal, in pursuance of the combination to inflict a battery upon deceased, appellant, being a party to the combination, is guilty of murder. There could possibly be no manslaughter, because of the want of a provocation. If the killing was accidental, either by Neal or the appellant, the court instructed the jury to acquit, and this was all that the appellant could have asked. In this connection, we would observe that, when the testimony of absent witnesses is looked to and weighed along with the legal propositions above stated, it would serve the appellant no legitimate purpose; for, whether Neal or the appellant shot the deceased, when viewed in the light of the testimony, which is not contradicted, they combined to commit a battery, this appellant would be guilty of murder. To restate, let us concede that Neal killed the deceased, and not this appellant. Let us concede that those women were not present. Yet it is an absolute fact that Neal or the appellant — one — killed the deceased in the execution of an unlawful design, namely, to commit a battery upon him. This being the case, he would be guilty of murder, though Neal did the shooting. Brennan v. People, 15 Ill. 511; 2 Hawk., P. C., Chap. 29; 1 Hale, P. C., Chap. 34; 1 Russ., Crimes, 24; Chitty's Crim. Law, § 264. We have examined the charge of the court very critically, and, when taken as a whole, it is the law of this case, and every phase of the case. It is more favorable to the appellant than he was entitled to, and the special charges asked by appellant were not called for. The court's charge holds the appellant guilty, if he contemplated the infliction of serious bodily injury or death, and that he would be guilty if he and Neal intended a mere beating. This is placed beyond question when we look to the fact that, while in pursuit of the deceased, one had a picket, and the other a pistol.

Neal was introduced as a witness for the State. There had been an application and trial for bail. Neal testified on that trial for himself. Before introducing him as a witness in this case a nolle prosequi was entered. Upon cross-examination appellant's counsel asked him if his case had not been nol pros'd. He answered in the affirmative. Counsel for the State asked him if his testimony on the habeas corpus trial was not the same as that given on this trial. He answered that it was. This question and answer were over the objection of appellant, the objection being that you could not thus support a witness. The law is with the action of the court below. Evidently, when the counsel for the appellant proved that the prosecution had been nol pros'd as to Neal, the purpose was to impeach him by showing that that was the cause of his testifying as he did, and that his testimony was therefore corrupt, and perhaps induced by a bargain between him and the State. Under this state of case the party introducing him could show that he made the same statement before his case was dismissed. This is not an open question. Counsel for appellant presented his motion for a new trial, and argued the same for two and one-half hours. State's counsel replied briefly. Affidavits had been taken pro and con in regard to some statements made by the jurors on their retirement with reference to the appellant, having killed a man, and his brother's having killed a man, etc. The testimony in regard to the misconduct of jury in this respect had closed before the argument on the motion had begun. The court took the motion under advisement, and on the next day overruled the same. Appellant's counsel contends that he should have been permitted to reply to the District Attorney. He was asked on the previous day if he desired to reply, and he said that he did not. Counsel also contends that he should have been permitted to introduce additional testimony in regard to the misconduct of the jury, as above indicated. No additional testimony was offered. In order to avail himself of the right to introduce additional testimony pending the motion, he should have offered the affidavits of witnesses, and if rejected, the bill of exceptions should state what he proposed to prove. This was not done. It is true he states in his bill that he proposed to prove "statements contained in the State's affidavit seeking to controvert the defendant's were not in fact proved," but he does not state what facts he proposed to prove in order to negative the State's affidavit. Conclusions will not do. He must set out the facts, so that the court below and this court could determine whether they were calculated to have that effect or not. But, conceding that he could have shown this, both parties had concluded their evidence in regard to the misconduct of the jury before the argument on the motion began, and there was no abuse of the court's discretion in refusing to go further into this matter. The appellant complains that he was deprived of the witness, Chancery, who was brought from Harris County by attachment after the evidence in the case had closed; and the bill in this connection shows tha the court announced, before the witness, Chancery, was brought in, at the conclusion of the evidence, that he would hear no further testimony in the case, unless something that he did not then know of should occur. As stated, the witness, Chancery, was, subsequent to this, brought in before the argument of the case began. No request of the appellant or his counsel was made of the court to allow this witness to be introduced before the jury. It was his duty, if he desired to use the testimony of this witness before the jury, to have made such request, and on the refusal of the court to allow him to testify, to reserve his bill of exceptions, and bring the question before this court for review. Having failed to pursue this course, he cannot now complain. Several bills of exception are contained in the record which were filed out of term time, and the questions therein raised cannot be considered by this court.

In motion for new trial, the affidavits of Pete Fanning, C.R. Hagan, and W.T. Carroll were presented for the purpose of showing the misconduct of the jury. It appears from these affidavits that the foreman, Hubbard, stated to the rest of the jurors, after they went out and had taken a vote, eight of the jurors being for acquittal, and four only for conviction — that defendant had shot a man while he was sitting on a gallery filing a gin saw, and killed him because he was a witness against him about some cattle, and that said Hubbard also stated that Armstead, Mitchell's brother Jim, went to Houston, to the Central depot, and pretended he was waiting for his brother, and waited until a man that he knew was coming, with a child in his arms, and commenced shooting him. The man fell and drew his pistol, and that there "was two or three men killed and several others shot in the difficulty." And further says that one Wade Robinson, who was on the jury, said to the jury that we know these defendants (meaning the Mitchell boys) and Neal, that were under discussion, and that they were not liable to have any accidental shooting. Hubbard and Robinson said to affiant that he (affiant) was a stranger in the land, and they were telling him these things. Hubbard also stated that he had seen the defendant, playing a game of cards, hold out cards and play them in. All of which he (affiant) stated was openly talked of in the jury room. The affidavits of Hagan and Carroll were of similar import to that of Fanning, There were controverting affidavits filed by nine of the jurors, and the juror, Carroll, himself, made an affidavit that he was not influenced by anything that was said outside of the evidence in the case. The juror, Fanning, also swore that he admonished the jurors who spoke on these outside matters that it had nothing to do with the case then on trial. Nine of the jurors swear positively, in substance, that they were not influenced by anything except the law and the testimony in the case. The record does not inform us as to what jurors were for conviction before this matter was brought before the jury. We are not informed, from the record, as to whether or not the parties making the affidavit, Fanning and Hagan, were for conviction or acquittal. Carroll was not influenced by this matter. Whether Fanning was or was not, the record is silent. His affidavit tends to show he was not. This is remarkably strange. Let us suppose that they were among the four who were in favor of a conviction. If this were so, then the fact that appellant had killed another person, or that his brother had murdered some one, certainly did not influence them in finding their verdict. Nine were not influenced by this matter. Carroll was not influenced by it, and no juror is shown to have been influenced, either by direct proof or circumstantially. Then if one had, it would have been a very easy matter to have shown it by proper proof. The affidavits for the motion for a new trial, and the controverting affidavits were all before the court. The motion was overruled, and we cannot say that the court abused its discretion, the rule being that the discussion of other crimes which are attributed to the defendant, where it is shown that such discussion influenced the jury, or any number of the jury, in arriving at a verdict of guilty, will be ground for a new trial. But the mere discussion of other crimes attributed to the defendant where it is not shown that such discussion influenced the jury, or a member thereof, in reaching a verdict of guilty, will not be ground for a new trial or afford a reason for a reversal of the judgment. We would remark, in this connection, that cases are continually coming before us, presenting questions raised by the affidavits of jurors for the purpose of showing some misconduct in the jury room. Such affidavits should be discouraged, and the lower courts, in any case where it is shown that the jurors are guilty of some misconduct in the jury room, by suggestion of matters outside of the testimony against the defendant, and the discussion of such matters, should bring such jurors before the court, and impose upon them such punishment as such tampering with justice merits. If this course is pursued, jurors will learn to have more regard for the oaths they have taken, and the courts will be troubled with fewer affidavits made for the purpose of impeaching the verdicts of juries. It is also insisted by appellant that some of the jurors did not understand the charge of the court, and affidavits are presented by some of them to that effect. This court will not listen to such self-stultifying affidavits on the part of jurors. This question has been too often decided adversely to appellant to require any further notice from us. Counsel for appellant also insists that the evidence does not support this verdict. We are of the opinion that it does. This was a wanton and unprovoked murder. The judgment is affirmed.

Affirmed.

ON MOTION FOR REHEARING.