Scott v. State , 23 Tex. Ct. App. 521 ( 1887 )

Hurt, Judge.

The errors assigned upon the record relate to the overruling of the application for a change of venue, for a continuance of the cause, and to the admission of testimony and the charge of the court.

1. The sworn application for a change of venue, supported by the affidavits of three compurgators, sets up the existence of such prejudice against the defendant in Bexar county as will deprive him of the privilege of a fair and impartial trial. The counter affidavit, filed by the district attorney, attacks the means of knowledge of these compurgators, by showing that their residence in the county and acquaintance with its citizens are not such as to qualify them to speak in the matter whereto they depose. We think it is sufficient to raise the issue inquired into. This affidavit was supported by the oral testimony of no less than seven representative citizens of the county. No testimony in rebuttal was offered by the defendant. Had there not been sufficient evidence introduced to satisfy the mind of the court, it might of its own motion have called additional witnesses. We do not think, however, as is urged by appellant’s counsel, that it was the duty of the court to have called the compurgators and have examined them touching their means of knowledge. In the overruling of the application we find no error. (Carr v. The State, 19 Texas Ct. App., 631; Davis v. The State, Id., 201; 21 Texas Ct. App., 277, 14.)

2. That this court can not consider an assignment based upon error in overruling an application for a continuance, unless the record contains a .bill of exceptions thereto, is well settled practice. (Lucas v. The State, 19 Texas Ct. App., 79; Young v. The State, Id., 536; James v. The State, 21 Texas Ct. App., 353.)

3. In Clanton v. The State, 13 Texas Court of Appeals, 139, it was held that a witness might be impeached by showing that he has made statements before the grand jury in conflict with his testimony on the trial. That decision expressly overrules Ruby v. The State, and we still think the doctrine laid down in Clan-ton’s case the correct one. The court did not, therefore, err in permitting the questions complained of in bills of exceptions numbers 1, 2 and 3. (19 Texas Ct. App., 267.)

4. The charge of the court is full, fair and pertinent upon the law of alibi, and is helped by special instructions given at the instance of defendant, which, it may be remarked, are in some particulars more favorable than he was entitled to claim. After a careful examination of this unusually lengthy record, we find no error of law requiring reversal.

Under circumstances detailed in the statement of facts, Frank Harris disappeared from his temporary home in the family of Carroll Brannon, in Bexar county, on the sixteenth day of September, 1884; and since that time, as found by the verdict rendered in this case, he has been seen no more among the walks of living men. Nearly two years thereafter, a cave, so sequestered from view that its very existence was almost unknown, gave up the decomposing remains of a human being. By one of those seemingly fortuitous chains of circumstances with which Omniscience sometimes aids the imperfections of human reason, these fleshless bones and faded shreds of clothing have been made to take on the veritable form of Frank Harris. Motive, opportunity, and other strong inculpatory facts, pointed out the appellant as one of the actors in the crime. These facts have been brought to bear upon the trial in such a manner as to fasten upon him the murder, and to attach to him its consequences. The evidence is circumstantial, but of more than usual cogency. It is in some respects, and particularly with regard to the defense of alibi, somewhat conflicting. But the jury, as it was their province to do, have passed upon the conflicting questions, and out of them have returned a verdict which sustains the theory supported by the witnesses for the State. It only remains for us to determine whether or not this testimony supports the verdict found. We are of opinion that it does, and hence decline to disturb it.

Opinion delivered June 11,1887.

‘The judgment is affirmed.

Affirmed.