McKenzie v. State , 116 Tex. Crim. 395 ( 1928 )

The offense is murder; the punishment, death.

On the night of September 10th, 1927, at about nine o'clock, the superintendent of Piggly-Wiggly store saw appellant standing across the street at a root beer stand, a distance of about sixty or seventy feet from his store. He phoned police officers, who appeared on the scene in a short time. The superintendent had been advised by the manager of the store that there was a man acting in a suspicious manner across the street from the store. When the police officers arrived on the scene, Sam Street, Chief of Police of San Antonio, and Tate, a policeman, got out of the car on the right side. Wayne Parks, another policeman, got out on the left side of the car and started around back of the car. Street walked toward appellant. Appellant was leaning against the wall. When Street was within eight or ten feet of appellant, Tate, a policeman who was accompanying him, said: "What are you doing here, young man? We are officers." Appellant had his left hand in his coat pocket. When Tate made the remark referred to, appellant turned and shot from his pocket. Appellant then immediately reached under his left shoulder and drew a Lugar automatic pistol, and at the same time fired two shots from his coat pocket. He then began firing at one of the police officers from his pocket and at chief of police Street and another officer with the Lugar, running backwards while firing. Appellant fired twelve or fifteen shots. When the first two shots were fired, Chief of Police Street fell. At the time appellant fired the first shot none of the officers had drawn a weapon, no pistols being drawn by the officers until after appellant began firing. The officers then fired on appellant, he running away and at the same time firing at them. Appellant received flesh wounds in the legs. Sam Street was killed, about three shots having taken effect. Appellant was arrested in an attic. The pistols which he used on the night of the homicide were found in his possession. Appellant did not testify, but offered witnesses who testified that Chief of Police Street walked up to appellant, flashed a light from a flashlight in his face and said: "What are you up to?" and that appellant then backed off and a shot was heard. The officers wore no uniforms nor insignia. The state's witnesses denied that Chief of Police Street had a flashlight in his hand. It is undisputed that none of the officers drew pistols until after appellant had fired the first shot. The officers were positive that appellant was informed that they were officers, whereas appellant's witnesses stated that they were in a position to have heard what was said, and that they did not hear Street or any of the police officers tell appellant that they were officers.

The indictment was returned by a special grand jury called for the purpose of investigating the homicide. Appellant made a motion to quash the indictment on the ground that the law does not authorize the convening of a special grand jury for the purpose of investigating a "single and isolated" case. Article 1920 R. S. 1925, authorizes the convening of special terms of the district court when deemed advisable by the district judge, and authorizes the district judge, in his discretion, to empanel a grand jury for such special term. It is patent from a reading of the statute referred to that appellant's motion was properly overruled.

By bill of exception No. 2 it is shown that appellant filed an application for a change of venue predicated on alleged prejudice. The application was supported solely by the affidavit of appellant. The state duly controverted the application and the court heard evidence on the issue. It is unnecessary to detail or discuss the evidence. The statute requires that the application be supported by the affidavit of the defendant and of at least two credible persons who are residents of the county where the prosecution is instituted. Article 562 Cow. C. P. It has been held that this requirement is not complied with by supporting the application by the affidavit of the defendant and one other person. Gibson v. State, 110 S.W. 41.

Appellant filed a motion to postpone the trial and give him additional time to prepare for trial. It was alleged in the motion that the offense was alleged to have been committed on the 10th day of September, 1927; that a grand jury was empaneled on September 12th, which returned an indictment against appellant on the same day; that on the day the indictment was returned the court appointed two attorneys to represent appellant in the trial of his case; that both of said attorneys were inexperienced in the practice of criminal law; that the public was in an inflamed condition of mind by reason of the publicity given to the alleged offense; that from the date of their appointment appellant's attorneys had constantly worked on the law and facts of the case; that they had not learned the law and felt that the case could not be tried according to law; that they were not familiar with the rules of procedure and, therefore, would be unable to protect appellant's rights by proper bills of exception or other action; that his attorneys had not had time to interview witnesses or to investigate and find out what the witnesses knew; that they had learned of the existence of witnesses but had not had time to find them or ascertain who they were or their whereabouts; that there was a witness present at the time of and immediately before the homicide whose name appellant did not know; that appellant's attorneys had talked to certain witnesses who were afraid to discuss what they knew relative to the homicide; and that said witnesses were in possession of material evidence beneficial to appellant; that appellant believed he had a legal defense to the charge against him if given time to secure evidence; that appellant had been shot twice and dangerously wounded on the occasion of the homicide and had been placed in jail while suffering excruciating pain; that due to said pain he had been mentally unable to consult with his attorneys and give them a coherent statement of the facts of his case; that he was then suffering great pain; that the public mind was inflamed against him and that he should not be brought to trial while such condition existed; that his brother and the wife of his brother who might be of assistance to him had been incarcerated in jail; that his father, who lived in Michigan, and his sister-in-law, who lived in Missouri, and his brother, who also lived in Michigan, according to his belief, would furnish money and funds to aid him in conducting his defense; that he had prepared letters and sent telegrams to said parties; that his attorneys were not at the time sufficiently prepared on the law and facts of the case to enable them to represent him in an intelligent and efficient manner. It was prayed that the court fix the date of trial "at such time in the future as will give his attorneys time within which to prepare his case for trial in such a way that it may be tried in accordance with the meaning and intent of the law." The trial was had on September 15, 1927.

The state filed written replication to the motion, and offered in support of its contest one of the county physicians, who testified that appellant was not dangerously wounded and that he was physically and mentally able to undergo trial. Other witnesses for the state testified that they had talked to appellant and that he talked in a rational and coherent manner. The court qualified appellant's bill of exception as follows:

"The court stated to counsel for the defendant that if they wished additional counsel appointed that he would be only too glad to appoint additional counsel. Further, the court also asked Pete McKenzie, the defendant, whether he was satisfied to go ahead now with the counsel that the court had appointed and the defendant, Pete McKenzie, informed the court that he was satisfied. The court informed the defendant, Pete McKenzie, that if he was not satisfied that he would appoint additional counsel, and the defendant, Pete McKenzie, informed the court that counsel appointed by the court was satisfactory to him. The court informed counsel for the defendant that if any witness refuses to talk to either of counsel for the defendant, that if they would report the fact to the court that he would see that the witness or witnesses would talk. The court further informed the defendant that during the present special term Mr. Randolph had represented some five or six defendants in this court and had represented them ably and that as to Mr. West he is a teacher of law. The Court further stated to counsel that he thought they were tardy in urging their incompetency — that if they were of that opinion they should have so informed the court at the time of their appointment and should have refused to accept the responsibility. Upon this statement by the Court both defense counsel jumped to their feet and stated that they were perfectly competent and able to take care of the case and that they had been misunderstood; that they only wanted more time. The Court then stated that since counsel had injected the issue of incompetency he felt it his duty to appoint additional counsel, as to whose competency there could be no question. Counsel for the defendant requested the Court not to appoint additional counsel, stating that they preferred to go ahead assuring the Court that they felt perfectly able to take care of defendant. The court then asked the defendant if he were satisfied with the counsel appointed for him; he answered 'absolutely.' The Court then told defendant that if he were not satisfied to say so, and the Court would stop the proceedings and appoint additional counsel. Defendant answered, 'I am satisfied.' The court then stated to counsel for defendant that if at any time during the trial any legal question should arise about which counsel were not fully advised, that if they would make such fact known, the Court would give Counsel ample time to inform themselves. Counsel stated that they were willing to proceed."

It is not contended that appellant was arraigned until the expiration of at least two entire days after the day on which a copy of the indictment was served on him. Article 493 Cow. C. P. Neither is it contended that the provisions of Article 494 Cow. C. P. were not complied with, it appearing that appellant had more than one day to prepare for trial after counsel were appointed. The reasons asserted in the application relative to the lack of preparation of appellant's attorneys and their inability to secure material testimony for his defense do not make it apparent that, in the time allowed, appellant's attorneys were unable to properly prepare for trial. The finding of the court that appellant was physically and mentally able to undergo trial was supported by sufficient and undisputed testimony. The court's qualification of the bill of exception shows that appelant's attorneys felt themselves fully capable of protecting his rights and that after the motion for further time was presented they stated that they were willing to proceed. Appellant fails to suggest in his motion the nature of the defense which he expected to interpose. There were few eye witnesses to the transaction which resulted in the homicide and it is manifest from an examination of the record that it would have consumed but little time to have talked to the witnesses and learned the facts within their knowledge concerning the homicide. Considering the application in the light of the evidence and of the court's qualification to the foregoing bill of exception, No. 3, we find no abuse of discretion on the part of the trial court in overruling the motion. See Mathews v. State,249 S.W. 1073; Apolinar v. State, 244 S.W. 813.

Appellant filed an application for a continuance, wherein he alleged that one John Doe, whose name and residence he did not know, was absent from court and that he expected to prove by said witness, if present, that he was present when Sam Street was killed and saw one of the officers fire a shot before appellant fired his pistol or made any hostile move. The witness was described as being "a man about 5 feet, 7 inches tall, American, wearing light narrow-brimmed Panama hat and horn rimmed glasses, clean shaven, about 28 years old, weight about 135 pounds." Supporting the application, appellant filed an instrument in writing wherein he alleged that there was prejudice and hatred against him in Bexar County; that his attorneys had not had sufficient time to prepare for trial; and that he had been unable to secure the attendance of his father upon court, he being sorely in need of the advice and financial aid of his father. The state controverted the application as to diligence. The court qualified the bill of exception as follows:

"An application for subpoena was filed asking that 'John Doe the man who was present when the shooting commenced,' be subpoenaed for defendant. The clerk issued the subpoena and placed same in the hands of the sheriff who went out to the scene of the shooting and made inquiries concerning such witness and obtaining no information made a return that he was unable to find said person and from the description was unable to determine who was wanted. Later when this motion was filed the Court stated to counsel that as their motion only referred to 'John Doe the man who was present when the shooting commenced' and that there being two or three men present under subpoena from the state who were present when the shooting commenced, that he had better speak to defendant and see if he could not get a better description. Thereupon counsel talked with the defendant and obtained the further description which the Court permitted counsel to interline in his motion. The Court then ordered the clerk to issue a subpoena for John Doe with the new description. This subpoena was placed in the hands of the sheriff who was ordered to look over all witnesses in attendance to see if any corresponded to the description given. If not to make inquiries of all the witnesses and see if he could get any information concerning said witness and if not to go out to the scene of the shooting and make inquiries in the neighborhood. Court was then adjourned and when resumed the officer reported that he had followed the court's orders and had been unable to get any trace or information of said witness. Then when counsel read paragraph two of his motion wherein he sets up lack of experience of the attorneys and paragraph three wherein he sets up the failure of his father to be here and hire counsel of his own choosing, the Court stopped Counsel and stated that he thought the matter of competency of Counsel had been disposed of in the preceding motion (contained in Bill of Exception Number 3) but if not proceedings had better be halted until it could be; whereupon Counsel stated that both motions were prepared and written before the first was presented to the Court, and that they did not intend to urge that point, but that they want to urge that defendant was without relative or friend to give him moral support and consolation in his hour of trial. Whereupon the Court stated that as to the witness the identity of the witness, the probability of securing said witness, being so uncertain and indefinite and the uncertainty that he would testify as expected, since no one especially the defendant so far as is known ever heard any statement from the witness would not warrant a continuance for said witness, and that the moral support or comfort of the presence of the father even if here being of such doubtful value to the defendant, the Court did not feel warranted in granting a continuance."

It is not shown that the application is a first application. In the absence of a showing that an application for a continuance is a first, it is presumed to be a subsequent application. Article 544 Cow. C. P., requiring that a subsequent application shall state that "the testimony cannot be procured from any other source known to the defendant," was not complied with, and the application is fatally defective. Brannan v. State,1 S.W.2d 279. If considered as a first application, the failure to state the name of the witness as required by subdivision 1, Article 543 Cow. C. P. renders the application defective. Thus whether treated as a first or subsequent application, it does not purport to be a statutory one. Not being a statutory application, it appealed alone to the trial judge, whose action in overruling it this court would not be in a position to review. Mathews v. State, 249 S.W. 1072. If subject to review by this court, the trial court's action in denying a new trial by reason of the application was warranted. No witness testified on the trial that the alleged witness was present at the scene of the homicide. Appellant failed to testify in his own behalf, and the witnesses testifying for him failed to raise the issue of self-defense. The undisputed testimony shows that appellant fired the first shot without excuse or justification. In the state of the record, therefore, the court did not abuse his discretion in determining, in the absence of the affidavit of the witness, that the proposed testimony was probably not true and was such as that if it had been present there would not have been any likelihood of a different verdict. McCulley v. State, 280 S.W. 223.

It is disclosed by bill of exception No. 5 that appellant presented a written motion to summon a second special venire, alleging that of the 100 men originally summoned 69 had not been served and 34 had been excused for legal and adequate cause. The court's qualification of the bill of exception shows that the motion was not made until the veniremen had responded; that the jurors were awaiting examination at the time; that no motion to quash the venire had been made; and that the request was made before the first venire had been exhausted or disposed of. Until a special venire has been exhausted or discharged, with appellant's consent, the court is without authority to order the issuance and execution of another venire. Hall v. State, 12 S.W. 739. It is the general rule that the fact that the entire number of jurors ordered is not summoned would not be ground for quashing the venire. Regittano v. State,257 S.W. 906. In the absence of proof of lack of sufficient diligence, in order to require a quashal of the venire on account of non-service of a part thereof, the accused must show that the number of jurors available under the venire was insufficient to enable him to obtain an impartial jury. Jones v. State, 214 S.W. 322. No effort being made to quash the venire on the ground that the number of jurors present was insufficient to enable appellant to obtain an impartial jury, the court was warranted in requiring appellant to proceed with the selection of the jury from those present.

As shown by bill of exception No. 6, after the venire had been exhausted, appellant orally moved the court that the sheriff's department be required to make further effort to summon all absent veniremen. The request was denied and talesmen ordered to be summoned. The court states in the qualification appended to the bill that the sheriff's return showed the reason for not serving the absent veniremen; that some were dead, one in New York, one in Corpus Christi and one in Dallas; that appellant's counsel had this information before beginning his examination of the venire; that attachments had been issued for the absent jurors when the list had been called; that during the examination of the venire two or three jurors were brought in under attachment; that the others were not found; that no motion to quash the venire or postpone the examination was made. The court did all in his power to secure the presence of the absent jurors. The diligence exercised by the sheriff was not questioned. Appellant did not object to proceeding with the examination of the veniremen during the time further effort was being made to secure the presence of the absent jurors nor had he made a motion to quash the venire. It seems clear to us that these facts constitute a waiver, and that appellant is in no position to complain. See Chandler v. State, 131 S.W. 598. We, therefore, hold that the court's action in ordering talesmen was correct. Article 596 Cow. C. P.

Bill of exception No. 7 shows that appellant challenged the array of talesmen, claiming that the officers summoning said jurors wilfully summoned them for the purpose of securing a conviction. The evidence heard by the court failed to sustain the recitals in the motion, and we discern no error in the action of the court in overruling the challenge. Thomas v. State, 272 S.W. 149.

Bills of exception Nos. 8 and 9 deal with the action of the trial court in overruling appellant's challenge of certain jurors for cause. Appellant peremptorily challenged the objectionable jurors. If the court erred in refusing to sustain the challenge, there is nothing to show that objectionable jurors sat in the trial. It not being shown that objectionable jurors sat in the trial, reversible error is not manifested. Hughes v. State, 245 S.W. 440; Walker v. State,283 S.W. 787.

Bill of exception No. 10 deals with the action of the court in overruling appellant's second challenge to the array of talesmen. The evidence heard by the court failing to support the recitals of the motion, error is not manifested.

By bill of exception No. 11 appellant complains of the action of the court in overruling his challenge of a juror for cause. It is recited in the bill that appellant was forced to accept the juror because of the fact that he had exhausted his peremptory challenges. The court qualified the bill by stating that in overruling the challenge for cause, he granted appellant an additional challenge, with the statement to appellant's counsel that appellant might exercise it on the juror in question. The qualification further recites that appellant withdrew the challenge for cause and accepted the juror. It is patent that the bill fails to manifest error.

There was no error in refusing to consider appellant's "motion to reopen motion for change of venue." As qualified bill of exception No. 12 shows that the court advised appellant at the time the motion was overruled that he would be given full opportunity on motion for new trial to present additional testimony on the question of prejudice. Bill of exception No. 20 reflects the additional testimony heard on the motion for a new trial touching the question of prejudice. Such testimony fails to sustain appellant's contention.

Many exceptions were reserved to the argument of the district attorney. In every instance, the bills of exception dealing with the subject reveal that appellant made a general objection to an extended argument, a part of which argument was unquestionably proper. It was incumbent on appellant to single out the remarks deemed objectionable and request the court to instruct the jury not to consider them. The bills of exception are too general to be entitled to consideration. Improper argument of counsel for the state only requires a reversal where, in the judgment of this court, the remarks complained of, in connection with the surrounding circumstances, probably resulted to the prejudice of the accused. Patterson v. State,221 S.W. 597. The argument complained of was largely an appeal to the jury on the part of the district attorney to aid him in the enforcement of the law. In Green v. State, 268 S.W. 746, we held that the fact that the district attorney called upon the jury to aid him in the enforcement of the law did not call for a reversal. Again, it was not improper for the district attorney to insist that the law "says the death penalty is right." Smith v. State, 280 S.W. 201. Nor was it improper for the district attorney to impress the jury with the fact that it was their duty to disregard emotions which might impel the return of a verdict based on mercy. In several instances, the argument set out in the bills consists of deductions which may have been properly drawn from facts in evidence. That such was not the case is not shown by the bills. It is our conclusion that the bills of exception relating to the argument of the district attorney are insufficient to manifest reversible error.

In his motion for a new trial appellant alleged newly discovered evidence, stating therein that he had discovered a witness who would testify that he found a flashlight in the hands of deceased immediately after he was killed. It is further stated that appellant did not know of the testimony until after the trial. The evidence heard by the court on the motion discloses that one of appellant's counsel talked to the witness during the trial of the case; that he asked the witness if he saw the shooting; but that he did not ask the witness what he knew about the transaction until after the trial had terminated. Appellant utterly failed to use diligence in procuring the evidence he claims to have been newly discovered. On a motion for new trial for newly discovered evidence it must be shown that the evidence could not have been procured by the exercise of due diligence. Runnels v. State, 276 S.W. 289. Upon the trial judge rests the discretion to pass upon the merits of a motion for a new trial and his action will not be disturbed in the absence of an abuse of discretion. There being an utter lack of diligence on the part of appellant to discover the evidence in question and the entire record leading us to the conclusion that the production of such evidence upon another trial would not likely result favorably to appellant, we are constrained to uphold the action of the trial court in overruling the motion.

By bill of exception No. 22 appellant asserts that the court erred in overruling his motion for a new trial based on his claim that one of the jurors was incompetent to sit on the jury by virtue of the fact that his application for compensation on the ground of nervous and mental disability incurred during the World War was then pending. The juror admitted that an application of the nature mentioned had been made to the United States Government. He stated that the affliction was merely due to nervousness and affected his ability to maintain an interest in the positions of employment he had held. He stated that he understood the evidence and knew what he was doing when he rendered his verdict. There is no evidence to the effect that the juror was insane. The court was warranted in concluding that he was sane and a qualified juror.

In bill of exception No. 23 it is shown that appellant alleged in his motion for a new trial that G. W. Carson who had served on the jury was disqualified because of prejudice against appellant. It was claimed by appellant that the juror stated to one Waldrop that appellant was guilty of first degree murder and ought to be sent to the electric chair and that if he, the juror, could have his way he would hang appellant to a telephone post. The court heard evidence on the motion. A witness by the name of Parks testified on examination for appellant that the juror in question told him before being selected on the jury that he knew appellant well; that he had a bad reputation in the army for carrying guns and getting into trouble; that it would be well to send appellant away or hang him. The witness Waldrop testified that the juror stated to him that he believed appellant was guilty of first degree murder and that he should be strung up to a telephone pole. Another witness testified that the juror stated to her in the court room shortly before going on the jury that appellant was "going to get all that is coming to him." The juror testified that he didn't remember making the statement attributed to him by the witness Parks; that he had expressed no opinion as to what should have been done with appellant prior to the time that the verdict was brought in. He denied that he made the statement attributed to him by the third witness and declared that he had made no statement concerning the guilt or innocence of appellant or what should be done with him. He stated that he had not known appellant until he had been brought into the court room to be tried. In Branch's Annotated Penal Code, Section 565, page 288, the rule is stated as follows:

"When it is sought to show on the hearing of the motion for new trial that a juror before the trial had expressed an opinion of defendant's guilt or had made statements which showed a prejudice against defendant, the decision of the trial court on that issue will be sustained by the appellate court unless clearly wrong if the evidence bearing thereon was conflicting and was sufficient, if believed, to justify the action of the trial judge."

In Meadors v. State, 275 S.W. 829, in discussing a similar question this court said:

"When there is a controversy raised as to this character and kind on motion for new trial, and the trial court hears the testimony, his decision is not reversible under such circumstances and is only reversible when the testimony is all one way or when the decision is clearly wrong."

Applying the announcement of the decisions to the instant case, we fail to find reversible error in the refusal of the court to grant the motion.

There are some objections to the court's charge on self-defense. In view of the special charges on the subject given at his request, appellant is in no position to complain. We may add that we have been unable to find any evidence in the record raising the issue of self-defense.

We have carefully examined each contention made by appellant and fail 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.