Porter v. State , 86 Tex. Crim. 23 ( 1918 )

This case is before us on appellant's motion for rehearing. It is alleged that the original opinion erred in holding correct the action of the lower court in refusing to permit counsel for appellant to be present in the court room when the special venire was drawn. The contention is that former Article 647, C.C.P. was not repealed by what is called the "Jury Wheel Act of 1907" (p. 269 General Laws of 1907) and that said Article requires that a special venire be drawn in open court; and that by the exclusion from the court room of counsel for appellant it is shown that the drawing of said venire was not in open court, in the contemplation of the law.

We cannot agree with appellant. Section 9 of said Act of 1907 specifically amends Article 647, C.C.P., re-writes said article, and the same as amended is now Article 660 Vernon's C.C.P. In Brown v. State, 54 Tex.Crim. Rep., 112 S.W. Rep., 80, in a dissenting opinion by Judge Brooks is found the language quoted in appellant's motion, to-wit: "That said law (1907 is constitutional, and does not repeal the old jury law except in counties affected thereby." Neither this nor any other authority cited hold that Article 647 was not amended by said jury wheel act, and we hold that it was. Discussion of said proposition however, is foreign to the question as to whether the venire was drawn in open court. Appellant's bill of exceptions shows that said venire was in fact drawn in the courtroom, in the presence of the court, and by the clerk. The only fact relied upon as showing that it was not in open court was that counsel for the appellant, at the request of the court, absented himself from the courtroom. The fact that appellant's counsel was not permitted to be present in no sense shows that the court was not open. Witnesses are constantly excluded from courts while court is in session, and juries in appropriate instances are also, and other illustations might be instanced as showing that the mere exclusion of counsel is wholly insufficient to support any contention that the venire was not drawn in open court. Our statute expressly says that the accused shall have one day's service before the day of the trial, of a copy of the names of those summoned under a special venire facias, and we know of no authority holding that the attorney of the defendant in such cases has the right to be present at the drawing of the venire or any right to service of a copy thereof, other than as fixed by statute.

Appellant cites the heavy penalty given him as an illustration of the fact that he was injured by not being permitted to have a copy of the venire sooner, but in our judgment that proves nothing. The record shows that the jury were selected from the regular venire and that appellant did not exhaust his challenges. We think this contention of appellant wholly without merit.

The testimony of witnesses Durrett and Smith that in a field several miles from the place where the body of the deceased was found, and at a point near where it is claimed deceased met appellant on the night of the alleged homicide, and at a time some two weeks subsequent to the disappearance of deceased, said witnesses saw tracks made by a woman's shoe similar to tracks which in their opinion would be made by shoes worn by the deceased when she left home. There was no evidence that said tracks were accompanied by a man's tracks, such as might have been made by appellant. It is unquestioned that the young woman was in that vicinity on that particular night. In our opinion this evidence is impossible of injury to appellant.

The testimony as to letters seen in deceased's possession, addressed to appellant since his marriage, and that similar letters went through the mails on that route, were admissible as circumstances showing the continuation of the illicit relations of the parties subsequent to said marriage, and leading up to the time of the alleged homicide.

Nor do we think there was any error in that part of the charge which told the jury that neither counsel had any right to discuss any fact or circumstance not in evidence, and that the jury should not be influenced by any remark, or the discussion of any fact or circumstance not in evidence. We are unable to agree with the contention that this is equivalent to depriving appellant of the benefit of arguing and discussing the lack of guilty facts and circumstances in the case.

We think the objection not well taken to the testimony of Sheriff Smith, to the effect that when he went to appellant's home about two o'clock at night to arrest him, Pete Porter, appellant's brother, came to the front of the house, and among other things, asked the sheriff if there was any one with him who would hurt appellant. The proof showed that the said Porter was the most material witness for appellant, lived in the same house with him, and testified fully to an alibi at the instance of appellant. The matter complained of in this contention was relied upon by the State as an impeachment and a proper predicate was laid when Porter was on the stand by asking him if he did not make said statement to the sheriff, which he denied, and thereupon the sheriff was introduced and testified that Porter did make to him said statement. It is clear that if appellant himself had made such statement to the sheriff when he was arrested it would have been admissible as tending to show guilty knowledge and fear of the consequences of the crime, etc. The same general rule applies to material witnesses. The witness Porter, as stated, was not only the brother of appellant, but his most material witness. Mr. Branch says, in Sec. 86 of his work on Criminal Law: "The motives which operate on the mind of a witness when he testifies, are never regarded as immaterial or collateral matters." A party may prove the declaration of a witness which tends to show bias, interest, prejudice, or any other mental state or status which fairly construed might tend to affect his credibility." Mason v. State, 7 Texas Crim. App., 623; Sager v. State, 11 Texas Crim. App., 110; Bonnard v. State, 25 Ter. Crim. App., 173; Green v. State, 54 Tex.Crim. Rep.; Geller v. State, 56 Tex.Crim. Rep.; Reddick v. State, 47 S.W. Rep., 993."

We are unable to say that the inquiry of the witness Porter testified to by witness Smith did not tend to show his interest, bias, or knowledge of a situation from which danger to his brother might arise, and hold the evidence properly admitted.

We think the statements made by deceased to her mother while she was packing her clothes and dressing, preparatory to leaving home on the night of her disappearance in addition to the reasons given in the original opinion, were res gestae of such acts directly explanatory thereof, and admissible in evidence. Upton v. State, 48 Tex.Crim. Rep.; Stockman v. State, 24 Tex.Crim. App., 287; Russell, 11 Tex.Crim. App., 288; Dunham v. State, 3 Tex.Crim. App., 465.

We have no doubt of the sufficiency of the evidence to establish the corpus delicti.

The facts surrounding the death of the young lady were such as to make it necessarily a suicide or a death resulting from the criminal agency of another. According to the testimony, when last seen alive by witnesses, deceased was in good health and appearance and going away on a trip to San Angelo, for which trip she made her careful preparations, taking with her all of the clothes in a laundry bag, and two small valises. When next seen by witnesses, her dead body was floating in deep water in Leon River, about fifty or sixty yards above the Miller Springs bridge; and around her legs was a bailing wire so tightly wound and twisted as to render voluntary locomotion by her wholly impossible, and in said wire was a tell-tale loop, indicating the use of a weight of some kind. It was claimed, but without any evidence in support thereof, that the body may have fallen from the bridge and afterwards drifted to the place where found. This deduction is conpletely overcome by the further fact that at practically the same point where the body was found, the laundry bag of deceased was found at the bottom of the river, having in it the two little valises, and said laundry bag was also tightly wound with bailing wire, in which wire were also the same tell-tale loops, indicating the use of weights. It seems incredible of belief that the laundry bag could have floated on the bottom of the river from the bridge to the same spot where the body was found. Not only this, but the doctors who examined the body of deceased, said that the face and head were discolored, eyes and tongue protruding in a manner that could result from strangulation, though they could not state from the time the body had been in the water that death actually resulted from strangulation. In addition to these facts an unimpeached witness testified that a few days before the discovery of the body, appellant was seen walking back and forth along the bank of the river opposite the spot where the body was found later.

There is nothing in the record suggesting any motive for the removal of deceased except at her own hands to avoid the disgrace, or at the hands of the appellant for the same reason. The theory of suicide is made impossible by the surrounding facts. The evidence satisfied the jury under a fair presentation of the law that the appellant was the guilty agent in causing the death of the young lady, and we see no reason to disturb their finding.

The motion for rehearing is overruled.

Overruled.