Tores v. State , 74 Tex. Crim. 37 ( 1914 )

At the time for a regular term of the District Court of McMullen County, the Hon. F.G. Chambliss, judge of said court, being ill and unable to attend court, the members of the bar in attendance on said court elected Hon. W.W. Walling special judge of said court, who opened court, empaneled a grand jury in accordance with law, and the said grand jury at a later day of said term returned an indictment against appellant. The venue of this cause was then changed to Atascosa County, when and where appellant was tried.

Appellant filed a plea in abatement alleging that he was a Mexican by nativity, and that he had never taken the oath of allegiance, and was only a resident here and not a citizen of this country; that in the organization of the grand jury Mexican citizens of McMullen County were excluded, and discrimination practiced. This plea did not prove itself, and if any evidence was introduced in support of it, the record before us does not contain it. Therefore, the question is not presented to us in a way we can review the action of the trial court in overruling this plea. Again it is claimed that in the drawing of the special venire which was summoned in this case, that Mexican citizens of Atascosa County were excluded "for the purpose of preventing this defendant from having a fair and impartial hearing before a jury of his peers." As before stated, if any evidence was offered in support of this plea and motion, it is not included in the record before us, and for aught this record discloses such plea has no foundation, for citizens of Mexican nativity may have been on the special venire and may have been on the jury that tried appellant. When these pleas were overruled by the court, exceptions should have been reserved, and in the bills the evidence adduced on the hearing should have been included, that we could determine whether or not there was any merit in such pleas. As the matter is presented to us there is nothing for us to review.

Appellant also filed a plea in abatement of the indictment, alleging that lawyers who were not practicing lawyers in such court participated in the election of a special judge, and that Judge Walling was not a resident of the Thirty-sixth Judicial District. Again the matter is presented in a way we can not review it. The plea proves no fact, and if appellant offered any evidence in support of this plea, the record does not contain it. The record of the election of Judge Walling is regular in every respect.

Appellant also asked that Alejandro Sarli, who was also indicted, charged with guilty participation in this offense, be first tried, when the court dismissed the case against Sarli, thus rendering him a competent witness, and he did testify at appellant's request on this trial.

While the above motions and pleas were filed, yet appellant reserved no exception to the action of the court in ruling on either of them. So the matters are not properly presented to this court for us to act on them.

In the first bill in the record appellant contends that the court erred in overruling his motion for a continuance on account of the absence of several witnesses. He states that he desired the attendance of Dr. Jameson, stating that this doctor was the first person to arrive at the scene of the homicide, and "that this defendant nor his attorney have ever been able to learn what was the condition of the body and its surroundings at said time as to arms and otherwise, the nature of wounds, if any, and whether or not there were weapons on or around the body of the deceased." If appellant shot deceased under the circumstances disclosed by this record, the condition of the body and its surroundings, the nature of the wounds, and whether or not deceased had weapons would not be material to his defense. There is in the motion for continuance, or in the evidence adduced on the trial, no contention that deceased was attempting to use a weapon, or appellant believed he was about to do so. It is true that appellant was not required to testify as a witness on the trial, yet in his application for a continuance he must state such facts as could or would show the materiality of the absent testimony. He states no fact that he can or expects to prove by this witness. He states no fact occurring at the time of the homicide that the testimony of the doctor, whatever it might be, would be material to his defense. Two of the witnesses named in the application attended the trial, while for a third no process had been issued, and as to the others, he states no facts that they would testify to — in no way shows that they would, or he expected to prove by them anything that would or could be material to his defense, consequently the court did not err in overruling the motion.

Polito Vasquez was not an officer of the law, and although the sheriff had requested him to look out for appellant, appellant was not aware of this fact when he went to the camp of Vasquez, and made the statements he did make. Vasquez not having taken charge of him at the time the statements were made, and did no act to lead appellant to believe or suspicion that he intended to do so, or had authority to do so the court did not err in admitting this evidence. Hiles v. State, 73 Tex.Crim. Rep., 163 S.W. Rep., 717, and cases there cited.

As bill No. 4 does not show what facts appellant expected to prove by the witness, C.G. Bass, the court did not err in the premises. The bill shows that the rule had been invoked, and Mr. Bass had been in the courtroom, and appellant stated: "We are not going to prove any facts by him; it is expert testimony," and does not disclose upon what issue in the case the "expert testimony" would have a bearing, nor upon what issue he expected to testify.

Another bill shows that "the State offered in evidence two pieces of a map fastened onto a piece of cloth or paper, purporting to be a map of McMullen County, made in 1888 by the Commissioner of the General Land Office of the State of Texas, with unidentified lines thereon purporting to indicate the location of the town of Fowlerton and other points, to which defendant objected, because said instrument was not a whole and complete map, but several pieces of paper tacked on a piece of paper; that said several pieces of paper were so disconnected as to leave nothing to show that the purported map was not half of one map and half of another; and that the same was not so identified as to make it properly admissible for the purpose of proving any fact in dispute." The court in approving the bill states that the map had been torn in half and placed back together, and it is shown that it was a map of McMullen County, made by the Land Office. Under the recitations of this bill herein copied no error is disclosed in the ruling of the court.

Several bills were taken to the testimony of Mr. Frank H. Burmeister. In one bill it is shown that this witness was permitted to testify, being a lawyer in the case, without questions being propounded to him. As this bill does not disclose any testimony he gave on the trial, of course it is impossible for us to determine that appellant was in any manner injured thereby. To bring the matter before us for review, the bill should disclose the testimony he gave, especially that portion which appellant deemed objectionable. In two other bills it is shown that Mr. Burmeister was permitted to testify that he had received a letter informing him that he had been employed by the Commissioners Court to run the boundary line of McMullen County, because the work of Mr. Goff and Mr. White had been condemned, and that property up to the time testified to by him was taxed by McMullen County. The court in approving these bills stated that Burmeister testified, independently of any letter, that he was under contract with McMullen County to do this work, and that the work had been condemned; that he had served as county surveyor for a number of years and knew the facts testified to by him. Certainly any man can testify he has been employed to do a certain character of work by the county, and had done the work. These are facts within his personal knowledge, and while the contents of the letter were not admissible in evidence, without proving its loss, yet as the witness testified in addition thereto from personal information and knowledge to the same facts, the bill presents no reversible error. The bills do not disclose in any way the materiality of the testimony, or how such testimony could in anywise be hurtful to appellant.

In the bill objecting to the testimony of Mr. Holmes, no portion of his testimony is given, and no fact testified to by him is stated, consequently there is nothing presented for review. However, we will state the court did not err in permitting him to testify, for he had not been in the courtroom, nor violated any rule of the court, and his testimony was pertinent and germane to the issues involved in this case.

In the last bill relating to the introduction of testimony, it is shown that when the witness Humphries was testifying appellant objected to certain portions of his testimony and the court said: "It goes to the impeachment of your witness," to which remark appellant objected. The court in approving the bill states, "Approved with the explanation that defendant was objecting to the testimony on the ground of irrelevancy and insisting on knowing the rule under which such evidence could be admitted." As thus qualified the bill presents no error, and appellant having accepted and filed the bill without excepting to such qualification, he is bound thereby.

There is no evidence suggesting that appellant "shot at Ike Hill for the purpose of scaring him," consequently the court did not err in refusing the special charge presenting this issue. Neither did the evidence adduced on this trial call for a charge on self-defense. There is no testimony that deceased assaulted appellant, or appellant believed that he was in any danger from Hill. All that deceased said was that if he, appellant, did not leave, he, deceased, would go and get an officer, when appellant shot him. The issue of manslaughter is not raised by the testimony. It is not even shown that there was anger or rage, and the only ground for resentment is that deceased told him he was going to town for an officer to have him arrested on account of his, appellant's, misconduct. This would not be adequate cause in law. There is no exception showing that State's counsel used the remarks in regard to which special charges were asked, therefore, the fact that such remarks were used is not verified in a way to bring the matter before us for review.

The misspelling of the word "guilty" in the verdict does not vitiate it. The verdict was certain and sufficient upon which to enter judgment.

It appears that when the verdict of the jury was returned, appellant's counsel filed a motion asking that they be given additional time to that allowed by law in which to file their motion for new trial, on grounds stated in the motion. This was by the court granted. When the motion was filed it was overruled, and appellant gave notice of appeal to this court. Subsequent to this time appellant filed an amended motion for a new trial, which the court by order entered struck from the record, on the ground it came too late, and no leave had been granted appellant to file it, to which action of the court appellant excepted, and presents the question properly in a bill of exceptions. We think appellant is correct in contending that the trial court has control over its judgments during the term at which such judgment was rendered, and had the court thought proper to do so, upon appellant withdrawing his notice of appeal, the court could have set aside the judgment overruling the motion for new trial, granted leave to file an amended motion, considered same, and took such action as the trial court deemed proper, and if the amended motion was overruled, by again giving notice of appeal appellant could have prosecuted an appeal to this court. But appellant did not take such action. After his motion for new trial had been overruled and notice of appeal given to this court, without leave of the court appellant proceeds to file with the clerk what he terms an amended motion for new trial, in which he does not ask leave to withdraw the notice of appeal theretofore given, nor in the motion does he ask that the order overruling the motion for a new trial be set aside and permission be granted to file an amended motion for a new trial. As thus presented the court did not err in striking the motion from the record, as he had granted no leave to file it. But aside from this, the amended motion not being filed within the time allowed by law, and the court not having considered same, we hardly think we would be authorized to hold he abused his discretion. Whether another motion for a new trial will be permitted to be filed after the time allowed by law has elapsed, is a matter within the sound discretion of the trial court. He can read the motion and application, and if in his opinion he deems that no matter is presented which would authorize him to disturb the judgment, he can decline to permit it to be filed, and the only question then presented to us, from grounds and allegations contained in the motion, is it shown that he has abused the discretion confided to him by law? In this case we do not think any such showing is made, and the judgment is therefore affirmed.

Affirmed.

ON REHEARING. May 6, 1914.