Magruder v. State , 35 Tex. Crim. 214 ( 1895 )

DAVIDSON, Judge

Appellant was convicted in the court below of murder in the second degree, and given a term of thirty years in the penitentiary. From the judgment and sentence of the low'er court he prosecutes this appeal. There were twro parties indicted for the murder of George Humphrey in this case, to-wit: Elmer Jones and appellant, Magruder. A severance was had in the case, and Elmer Jones put on trial first. The jury returned a verdict in the Jones case on the 10th day of December, finding him guilty of murder in the second degree. Appellant’s trial came up on the 13th day of December. He announced “ready,” and went to trial, and the trial proceeded until the 18th day of December, when he craved a postponement of the case for the testimony of Elmer Jones, his co-defendant, tvho, as already stated, had been previously convicted of murder of the second degree. The court very properly refused this request. The State introduced evidence in this case of the acts and declarations of said Elmer Jones, made at Gainesville the day before, or the day of the killing, with reference to the purchase of pistols, and proved by said witnesses, Reagan and Shoppmeyer, the.purchase of said pústols by Jones. By Sheriff Ware, the State also piroved that Jones came to him the day of the homicide, and before it occurred, and asked to be appointed deputy sheriff, and stated that he apprehended a difficulty between Magruder, the appellant, and Humphrey, and that he wanted authority to arrest one or both of them. This testimony was objected to by the ajipellant, on the ground that no conspiracy had been proven between Jones and Magruder, to take the life of the deceased, George Humphrey. We have examined the record on this question, and, in our opinion, there was sufficient evidence of the conspiracy to admit the acts and conduct of the said Jones pending said conspiracy and before its commission, and in furtherance thereof. It is not necessary here to enumerate the facts, and, moreover, the court in its charge clearly and explicitly directed the jury as to this testimony, telling them that, if they found that there was no conspiracy between Jones and Magruder, to utterly disregard all of the acts and declarations of said Jones, made to said witnesses. The State was permitted to ask Mrs, Henrietta Humphrey, who was placed on the stand by the appellant, on her cross-examination, the following questions: “Are not your feelings on the side of the defense, and do you not want to see him acquitted?” And, on her answering that she did not want, under the circumstances, to see the appellant punished, that she thought he was innocent, and that her feelings were on that side of the case, the State’s counsel then asked the question of said witness: “Have you not paid, or promised to pay, R. Y. Bell’s fee in this case for defending appellant?” Appellant’s counsel objected to this question, because the witness had admitted her- bias, and said the circumstance was inadmissible and irrelevant, and only eaculated to prej udice the appellant before the jury. The court overruled this objection, and permitted her to answer that she had agreed to secure the counsel fees in the case in the event of an acquittal. To this proceeding the appellant excepted. In this case the wife of the deceased stands as any other witness, and was subject to the same character of cross-examination, and it was admissible to ask her any question the tendency of which was to impeach her credibility; and the fact that she had agreed to pay the fee for defending the man who had slain her husband, it occurs to us, was a very material circumstance as going to the weight of her testimony.

Appellant complains of the court’s charge on manslaughter, said charge being as follows: “If you believe from the evidence, beyond a reasonable doubt, that the defendant, J. A. Magruder, in Cooke County, Texas, at any time prior to and within three years of the 3rd day of November, 1894, did unlawfully kill George Humphrey by shooting him with a pistol, but that, at the time of the killing, he, the said defendant, was by some adequate cause moved to such a degree of anger, rage, sudden resentment or terror as to render him incapable of cool reflection, and that in such state of mind, and not in his lawful self-defense, he killed the said George Humphrey, then you will find the defendant guilty of manslaughter, and assess his punishment at confinement in the penitentiary for any time you see proper, not less than two nor more than five years; and in determining the defendant’s state of mind at the time of the killing, you will view the acts and conduct of said Humphrey at the time of the killing in the light of and in connection with all the other facts and circumstances in evidence before you.” - Appellant claims that this charge is too restrictive, in that it does not permit the jury to look to acts and conduct of Jones in that connection. The acts and conduct of Jones were in evidence before the jury, hence constituted a part thereof; and the charge of the court in question specially authorized the jury to look to all the facts and circumstances in evidence before them. We have examined them, and, in that connection, the court’s charge, and we find the same comprehensive, and covering every material phase of the case presented by the evidence; so that none of the charges asked, if they were otherwise correct, were necessary to be given. Appellant insists that a new trial should have been granted him in this case because of the newly discovered evidence, to-wit: that Mrs. Henrietta Humphrey was not in fact the wife of the deceased; and he introduced an affidavit tending to show this fact, and that it was newly discovered. If this be true, we fail to see in what respect it would benefit the appellant. The evidence shows that he regarded her as the wife of the deceased, and that he lived in the family a number of years, and was, in fact, her cousin. From his standpoint, so far as his rights are concerned, they are to be regarded as man and wife. The fact that they were unmarried, if this be true, but that he was ignorant of this, and regarded them as lawfully married, rendered this newly discovered evidence wholly immaterial. There being no error in the record, the judgment is affirmed.

Affirmed.