Wilkins v. State , 35 Tex. Crim. 525 ( 1896 )

Appellant was convicted of murder in the first degree, and his punishment assessed at death, and he prosecutes this appeal. The State having announced its readiness for trial, the defendant presented his first application for a continuance for the want of the testimony of one Dean, alleged to reside in Hunt County. The testimony of Dean, as set out in the application for a continuance, is material. But in passing upon the action of the court in overruling the motion for a new trial based upon this matter, we look to the fact as to whether the testimony was probably true. After reading the statement of facts carefully, we are of opinion that, if Dean had been present, no juror would have believed him if he had testified to the facts set out in the application. The testimony in the case, and all of the circumstances, and the quasi confession of the defendant, render it absolutely certain, to out minds, that his testimony is not probably true; and the court did not err in refusing to continue the cause. The process to Hunt County for these witnesses was returned "Not found." Appellant states that he accompanied him to Cleburne on the morning after the homicide, the same morning of his arrest. No person was found who had seen Dean.

After the State had introduced its evidence, and rested, the attachments for M.M. Wright and Allen Hunter Wright were returned, showing that the said witnesses were in bed, sick, and could not attend the trial, whereupon counsel for the appellant made an additional application to continue the case on account of the absence of the testimony of these witnesses. This was refused, and appellant reserved his bill of exceptions. We learn from the record the facts expected to be proven by these witnesses. However, their affidavits were procured and filed, and they contradict most emphatically the facts that they knew anything about the matters proposed to be proven by them. Let it be conceded that the court erred in not permitting the appellant to file an additional application to continue the cause, the subsequent facts developed show that the defendant could not have been injured by this ruling. If the continance had been granted for the testimony of these witnesses, it is evident that upon another trial they would not have sworn to the facts stated in his application, but would have traversed his affidavit in this respect. Hence there could have been no injury in this matter. There was no error in permitting the County Attorney to file the affidavits of the absent witnesses, M.M. Wright and Albert Hunter Wright.

The State proved by two witnesses, W.A. Stewart and H.F. Long, the confessions made by the appellant, to which the defendant reserved his bill of exceptions. The exception made to the introduction of these confessions is as follows: "To this evidence the defendant objected, which was by the court overruled, to which ruling of the court the defendant excepted in open court, and tenders this, his bill of exceptions, and asks that the same be approved and signed," etc. There is no ground of exception or objection stated. This is too general to require a revision of the action of the court in admitting the confessions. It is the duty of the counsel to specifically point out the objection. This was not done, hence it will not be considered by this court. The confession of the appellant may have been admissible under certain circumstances. Whether the predicate was properly laid or not, we are not called upon to say, for there was no objection to the predicate. Appellant proposed to prove some facts and circumstances which remotely pointed to the theory that perhaps some one else had killed the deceased. The facts proposed to be proved were too remote, and the court did not err in rejecting this evidence. It was not pretended, nor offered to be proven, that the party or parties alleged to have assaulted the deceased about a year before were in the county at the time the deceased was killed, or had been seen in the county for months previous to the killing. The witness, Taylor, states that he had never heard or seen any of said parties since a very few days after the assault. See, Kunde v. State, 22 Tex.Crim. App., 65; Henry v. State (Austin term, 1895), 30 S.W. Rep., 802. The charge of the court is objected to because it instructs the jury that "all murder committed with express malice is murder in the first degree;" and "the law declares that all murder committed in the perpetration or attempted perpetration of robbery is murder in the first degree." The last sentence is objected to because the indictment in this case only charges this defendant with murder with malice aforethought, and nowhere charges this defendant with murder in committing or attempting to commit the offense of robbery. The contention of the appellant in both particulars has been decided against him. See, Sharpe v. State, 17 Tex.Crim. App., 486; Giles v. State, 23 Tex.Crim. App., 281. There was no error in defining robbery, because it is settled that under the indictment charging murder with malice aforethought the accused can be convicted of murder in the first degree if it were in the perpetration or attempted perpetration of robbery. It was the duty of the court to define robbery.

In the motion for a new trial the following charge given is assigned as error: "You will not regard any statement made by any of the witnesses to the effect that the defendant tried to escape from the sheriff, and that he shot at the sheriff while trying to escape, as evidence in this case; nor will you regard any statement made by the defendant at that time, if any, as evidence, unless you believe the same tends to connect the defendant with the killing of G. Taylor. If you do so believe, then you may consider it evidence for that purpose only, and give it such weight as, in your judgment, you may believe the same entitled to receive." There was no objection to the evidence upon which this charge is predicated such as we can consider. There may have been a predicate laid by the State for its introduction as original criminative evidence. It certainly tends cogently to establish the guilt of the accused, but the charge complained of leaves the fact of such tendency to the jury. The fact that it was limited to this purpose, and not allowed to be considered by the jury as contradictory of appellant's testimony, is a matter of which he cannot complain. The same observations apply to the charge as to the property of the deceased found in the possession of the appellant on the next morning after the homicide. Both of these charges are most remarkable, but they are not presented to us in such shape as to make it appear that they were injurious to the appellant. On the contrary, they are more favorable to appellant than he was entitled to. The deceased was murdered on Thursday night. The next day, by sunup, appellant was in Cleburne, some twenty-two miles distant, and in possession of the mare and other personal property of the deceased, trying to dispose of the mare and saddle. These facts demonstrate that he had possession of the fruits of the robbery, and no intelligent jury could have failed to use them as powerful criminative facts against the accused. We do not understand upon what ground the court instructed the jury that they might pass upon the competency and pertinency of such evidence. They were among the strongest facts proven; but he gave the jury the right to disregard them, if they wanted to, instructing the jury, however, that if they did believe that the same "tends to connect the defendant with the killing of G. Taylor, * * * give it such weight as, in your judgment, you may believe the same entitled to receive, and for that purpose only." The appellant testified in the case. His confessions and conduct when arrested and before, showing that he was in possession of the fruits of the murder and robbery, were very powerful facts tending to contradict his version of this transaction. The evidence in this case, though circumstantial, to our minds establishes the guilt of the accused beyond any sort of doubt. The criminative facts were all fully proven. They were of such character as to lead to the conclusion of guilt to a moral certainty. The deductions from them were not strained; they were natural, reasonable, and certain. There was no basing of presumptions upon presumptions, but all the facts necessary to the conclusion of guilt were clearly established, and they had but one tendency, and that was the guilt of the accused, pointing with unerring certainty to his guilt and in no other direction. The facts in this case are much stronger than those in the case of Gonzales v. State, 19 Tex.Crim. App., 394 — a case of circumstantial evidence, in which this court approved the verdict. Again the circumstances show that though in the perpetration of robbery, the killing was a deliberate assassination. But be this as it may, it was murder in the perpetration of a robbery, and hence murder of the first degree. The judgment is affirmed.

Affirmed.

[NOTE. — The appellant filed a motion for rehearing which was overruled without a written opinion. — Reporter.]