Wiley v. State , 117 Tex. Crim. 449 ( 1931 )

The offense is murder; the punishment, confinement in the penitentiary for four years.

Appellant, Rube Huff, and Drew Wiley, appellant's son, had engaged in a dice game. Appellant and Rube Huff had a dispute, which resulted in Huff knocking appellant down. According to the State's testimony, appellant arose with a knife in his hand. The parties were separated, and appellant left the gathering. It appears from appellant's testimony that a few minutes later some unknown person shot appellant in the face with a shotgun, injuring him to some extent. It was not shown that deceased, Rube Huff, had anything to do with the shooting. Sometime thereafter, according to the testimony of the State, several of the parties present went to appellant for the purpose of bringing about a peaceable settlement of the differences between appellant and deceased. From this point the State's testimony was in substance as follows: Approaching appellant, they found him armed with a rifle. His son was present with a double barrel shotgun and his daughter had a single barrel shotgun. The parties were not far from the place where the first difficulty had occurred. After some talk, appellant suggested that they call deceased, as he was willing to adjust the matter with him in a peaceable manner. Deceased being called, approached the gathering, saying: "Boys, put up your guns. Let's settle it without guns. Peace is what I want." Appellant said: "There is the s- of a b-. Shoot him." Appellant's son, Drew Wiley, fired one shot. Deceased's hands were in a pleading position when be was shot. It appears that deceased was armed.

Appellant testified, in substance, that someone had shot him in the face shortly before the difficulty with deceased; that at the time deceased was shot he (deceased) had drawn a pistol on Drew Wiley, appellant's son, and said: "I have got you now, you s- of a b___"; that Drew Wiley shot deceased twice after he had made the demonstration mentioned.

It will be seen from the foregoing statement of the testimony that it was the State's theory that appellant induced those who were attempting to re-establish friendly relations between him and deceased to bring deceased to the place of the homicide for the purpose of enabling appellant and his son to kill him. As showing malice, the State relied upon the antecedent difficulty deceased and appellant had had, in which deceased had knocked appellant to the ground. On the contrary, it was appellant's theory that deceased attempted to shoot Drew Wiley as he approached the gathering, and that Drew Wiley fired the fatal shot to save his own life. There being an issue as to who began the difficulty, appellant offered the testimony of his son and daughter to the effect that deceased's brother went to appellant's home, in appellant's absence, immediately after the first difficulty and stated to the witnesses, in substance, that he had wrestled with deceased until he was worn out; that he could not hold him any longer; that there was no telling what deceased would do; that appellant and his family should be on the lookout for deceased.

Appellant alleged in his first application for a continuance that his wife, if present, would testify, in substance, that she heard the firing of the guns at the time it was alleged that deceased was shot; that shortly before the guns fired deceased's brother had come to her house and told her to be on the lookout for the deceased; that he had stated further to her that he had wrestled with deceased until he was worn out and could hold him no longer; that if deceased came to her house there was no telling what he would do; that deceased had already knocked her husband in the head and that they had laid him out "back there". It was further averred in the application that the absent witness would testify that after her husband had had the first difficulty with deceased he had come home wounded and bleeding. Appellant, in part, predicated his motion for a new trial on the action of the court in overruling his application for a continuance, and attached the affidavit of the absent witness wherein it was shown that she would have testified to substantially the facts alleged in the application. Touching diligence, it was alleged that appellant's wife was too ill to appear and testify. It appears that she was brought, under attachment, to a hotel near the court house. One of the doctors who examined the witness testified that in his opinion she was able to testify, but declared that she was ill. He was further of the opinion that while her life would not be endangered if she testified, yet that it might aggravate her trouble. In view of the conclusion we have reached, we deem it unnecessary to determine whether appellant was lacking in diligence.

It is not clear that the testimony of the absent witness touching what was said to her by the brother of deceased was admissible in its entirety. The expression by him of the opinion that she should be on the lookout for deceased as there was no telling what he would do would not appear to be admissible. Mercer v. State, 111 Tex.Crim. Rep., 13 S.W.2d 689. The fact that the brother of deceased had wrestled with deceased after the first difficulty might be admissible if the brother had been called to testify as to the matter, as tending to show who began the difficulty at the time deceased was killed. It would seem that coming from the absent witness as testimony touching an uncommunicated threat it would be hearsay. The testimony of the absent witness to the effect that her husband came to her home after the first difficulty in a wounded and bleeding condition was relevant and material. In any event, if all of the absent testimony should be held to be relevant and material, it does not necessarily follow that a new trial should have been granted. It is true that the trial judge's discretion to determine the probable truth of the testimony of the absent witness did not operate in view of the fact that her affidavit, in which it was shown that she would testify to the facts averred in the application for continuance, was attached to the motion for new trial. White v. State, 90 Tex. Crim. 584,236 S.W. 745; Cruz v. State, 100 Tex. Crim. 188,272 S.W. 486; Tubb v. State, 109 Tex.Crim. Rep.,5 S.W.2d 150. As said in White v. State, supra, this should not be understood to necessitate a new trial unless the materiality of the absent testimony be such as that, if true, it would likely produce a different result upon another trial. Moreover, it was said in the same connection that it would not necessarily result in the granting of a new trial when there was other evidence cumulative of the absent testimony present or available to the appellant so that it reasonably appeared that no injury resulted in the absence of such testimony. In the recent case of Walton v. State, 116 Tex.Crim. Rep.,34 S.W.2d 598, delivered January 14, 1931, the rule laid down in White's case was reiterated. Conceding the truth of the absent testimony, the question is, whether, viewed in the light of the facts adduced upon the trial, it is of such materiality, if admissible, as that it would likely produce a different result upon another trial. Appellant's son and daughter testified to the same facts set forth in the affidavit of the absent witness. Having the same testimony before them, the jury concluded that deceased did not begin the difficulty which resulted in his death. Notwithstanding the jury may have concluded that the brother of deceased may have wrestled with him until he was worn out, and that it was his opinion that deceased was bent on mischief, the jury may have concluded that the matter was of little materiality in view of testimony touching the immediate transaction in which deceased lost his life. The learned trial judge concluded, after hearing all of the testimony and taking into account the fact that the absent testimony was cumulative, that its production upon another trial would not likely produce a different result. We are unable to reach the conclusion that an abuse of discretion is shown.

Appellant made a motion to quash the special venire on the ground that some of the jurors shown on the list had been drawn one time before at the same term of court to "answer summons to a special venire", and further, that the same jurors had been drawn into service as regular jurors. The court heard testimony on the motion which was, in substance, as follows: In drawing the special venire the clerk left out of the box members of the regular jury list who had been theretofore drawn on two special venires, and placed in the box those names which had only been drawn on one special venire. The juror Rhodes was inadvertently drawn on' the present venire after his name had already been drawn on two other special venires. It was not shown that he had been summoned, or that he appeared, in either case. Only one of the cases in which the name of the juror Rhodes appeared as special venireman had been tried. The other case was continued on the same day the present case was called for trial, and the venireman discharged. Five men whose names appeared on the special venire list in the case at bar had at the same term of court served in the trial of a murder case, having been drawn on the special venire in that case. They were the only jurors appearing on the list who had served on any special venire. It was not shown that they had served for one week as regular jurors during that term of court.

Article 593, C. C. P., provides, in substance, that no citizen who has served as a petit juror for one week during any term of court shall, during said term, be compelled to answer summons to more than one special venire. It is further provided in said article that no citizen shall be compelled to answer summons to a special venire more than twice during any one term of court. The provisions of the article referred to do not relate to counties under the "Jury Wheel Law". The county in which the case at bar was tried was not under the "Jury Wheel Law". In Moore v. State, 49 Tex.Crim. Rep.,95 S.W. 514, it was held that jurors within the exemption mentioned in the statute might serve unless they claimed their exemption, as the statute did not disqualify them. In Harris v. State,91 Tex. Crim. 446, 241 S.W. 175, on motion for rehearing, in considering a similar question, Judge Lattimore used language as follows:

"We further observe that it is not made to appear that the 29 jurors whose names appeared on both the Cornwall venire and that in the instant case had in fact been drawn, summoned, or served for any week of the term of court. As we understand the law, and its interpretation in Moore v. State, supra, even if the jurors themselves desired to take advantage of the exemption from jury service described in the Act of the 29th Legislature, supra, they would have to satisfy the court that they had been summoned twice before being summoned in the matter then before the court. In other words, in order to obtain relief from jury service for a given week, a juror might show that he had served on two special venires; or, if seeking relief from special venire service, he might show that he served one week as a regular juror and on one special venire, but unless some such facts were made to appear he could not claim such exemption. Based on the opinion in the Moore Case, supra, there might be grave doubt as to the right of the accused to complain if he could show no more than that by a mistake of the clerk names had been put on his venire list of men who had the right to claim their exemption, unless it was further made to appear that such men did in fact claim such exemption. If they were present and willing to serve, it would be doubtful whether appellant would have any complaint at all."

The action of the trial court, in overruling the motion to quash, was sustained in Harris v. State, supra, on the ground that the bills of exception relating to the matter failed to show any right on the part of the jurors to claim the exemption, or any default in the attendance of qualified jurors in numbers corresponding to the venire ordered and drawn. In the present case the bill of exception fails to show that the juror Rhodes was summoned to appear as a juror on the other special venires. It is merely shown that his name had been drawn and appeared on the lists. In other words the bill of exception fails to show that the juror was compelled to answer summons to a special venire more than twice during that term of court. Further, the bill fails to show that any venireman who had served on one special venire had served for one week as a regular juror during that term of court. Disclaiming any intention of holding that the objection would have been available to appellant had the bill been sufficient to present it, the opinion is expressed that error is not presented.

In charging on self-defense the court failed to take account of the words used by deceased. Appellant testified that deceased drew a gun on Drew Wiley and said: "I have got you, you G- d- s- of a b-". We quote appellant's objection to the charge as follows:

"Defendant further objects and excepts to paragraph 10 of the said court's charge on self defense because the same is too restrictive of the rights of the defendant in that the court limits the jury's consideration of the question of the self defense to an attack made or about to be made by Rube Huff upon Drew Wiley."

We deem the exception insufficient. Article 658, C. C. P., provides that the appellant or his counsel shall present his objections to the court's charge in writing, distinctly specifying each ground of objection. There seems to be nothing in appellant's objection that would have apprised the trial court that appellant was complaining because of the fact that the jury's consideration of what might give rise to the right of self-defense was limited by the language of the court to the acts and conduct of deceased. While no form of objection is prescribed, under the statute, a general objection is not ordinarily sufficient to bring in review the action of the trial court in refusing to amend the charge. Unless the objection is sufficiently definite to make reasonably apparent to the trial judge, the fault complained of, when the charge complained of and the objection are considered together, the failure to amend the charge is not subject to review. Gill v. State, 84 Tex.Crim. Rep., 208 S.W. 926.

Failing to find reversible error, the judgment is affirmed.

Affirmed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

ON MOTION FOR REHEARING.