Thompson v. State , 33 Tex. Crim. 217 ( 1894 )

DAVIDSON, Judge.

This is a conviction of murder in the first • degree, the punishment being assessed at a life term in the penitentiary. The evidence does not bring this case within the rule of circumstantial evidence. The accomplice swears directly and positively as eye-witness that defendant committed the murder. The threats of defendant to kill the accomplice if she betrayed him were also proved. ■ The court did not err in refusing the requested charge submitting the law applicable to circumstantial evidence.

Nor did the court err in refusing defendant’s requested instructions in regard to the testimony of the accomplice and necessary corroboration. The charge given by the court fully submits the law applicable to this phase of the case. It is not error to refuse spe ial instructions, though they embody correctly the law, if the charg< given the jury presents the law controlling the subject matter of sue! special instructions. Willson’s Crim. Stats., sec. 2254. The charg as given is not a charge on the weight of the testimony, and we think it an admirable presentation of the law of the case.

The application for continuance was correctly refused. We deem the diligence wholly insufficient. But if it be conceded we are in error in this position, then the stated facts are not of that character, when viewed in the light of the record, which requires a reversal of the judgment. The testimony expected to be proved by the absent witnesses, much of it, is too generally and vaguely stated to require notice. Some of it is in relation to matters about which there was no issue, and all that part of the testimony relating to the actions and whereabouts of the codefendants Williams and Peterson could have been shown by them, the said Williams and Peterson, had the defendant desired their testimony. They had both been acquitted and were present to testify for defendant on the trial. The evidence shows very strongly that the three men were together on the night of the homicide and the next morning, and the accomplice is strongly corroborated in her testimony that the three committed the murder. If they were not participants, and were not with defendant at the murder, they could have so stated. The defendant should have used all the testimony favorable to him at his command. Why this was not done is not explained. We deem it unnecessary to go into a further discussion of the application for continuance.

The defendant objected to the request of the State, made by Alex Erichson, to produce some handkerchiefs and a coat found on the person of Peterson the day after the murder, the garments being bloody.Having failed to show the production of the garments in evidence, the bill is too indefinite to be considered. Burke v. The State, 25 Texas Crim. App., 172; Jacobs v. The State, 28 Texas Crim. App., 79; Jackson v. The State, 28 Texas Crim. App., 143. This witness was also permitted to testify that a shirt and towel, damp and bloody, were taken from the possession of Williams the day after the murder. The testimony was clearly admissible. Williams was shown to have acted with Peterson and defendant in perpetrating the murder, and this evidence was corroborative of the accomplice’s testimony that Williams was present at the murder, and assisted defendant and Peterson in carrying off the body. The wounded man bled profusely.

We do not think the court erred in excluding Fagan’s evidence. Lupi had not testified on the trial of Williams and Peterson, and Fagan, one of defendant’s counsel, proposed to testify, that he “sent Peterson in search of Lupi to rebut the suspicions raised by the State’s cross-examination of Lupi.” How “suspicions raised by the State’s cross-examinati witness was eve ■n of Lupi” could bave been suggested before tbe known in tbe case is not easily understood,

Defendant’s torneys “demanded it as a right” that tbe regular panel for tbe wifck be placed in the jury box from which to complete tbe jury for bis trial. This was refused. This ruling was correct. Tbe statute provides, that when tbe special venire is exhausted tbe court shall order tbe sheriff to summon any number of persons that it may deem advisable for tbe formation of the jury. These are to be selected from tbe body of tbe county. Code Crim. Proc., arts. 611, 612; Weathersby v. The State, 29 Texas Crim. App., 278. Tbe evidence amply supports tbe conviction. Tbe accomplice Whitten is corroborated fully as to defendant’s connection with tbe crime, and as a participant in tbe murder.

Tbe judgment is affirmed.

Affirmed.

Judges all present and concurring.