Adams v. State , 35 Tex. Crim. 285 ( 1895 )

Appellant was convicted of murder in the second degree and given 99 years in the penitentiary. Appellant filed a plea to the jurisdiction of the court in effect alleging that the homicide occurred in Greer County, and that the courts of this State have no jurisdiction over offenses committed therein. Greer County has been recognized as an integral part of the State of Texas by general legislation of this State, and this court takes judicial cognizance that it is a part of this State, and the plea to the jurisdiction was properly overruled on this ground. Moreover, appellant's bill of exceptions does not show what facts it proposed to prove in order to establish that Greer County was not a part of the State of Texas, and, in the absence of such facts offered to be proved, the court did not err in overruling the motion. The transcript contains 160 pages, the evidence upon the motion for a change of venue covering 12 pages thereof. The motion being overruled, appellant excepted, reserving his bill of exceptions. The bill of exceptions does not contain the evidence in support of and against the motion to change the venue. Article 584 of the Code of Criminal Procedure provides; "The order of the judge granting or refusing a change of venue shall not be revised upon appeal unless the facts upon which the same was based are presented in the bill of exceptions, prepared, signed, approved and filed at the term of the court at which such order was made." This law requires the evidence upon which the order refusing to change the venue of a cause is based to be inserted in a bill of exceptions, properly approved, and filed at the term of the court at which such order was made. The facts upon which the order refusing the motion to change the venue were based are not in a bill of exceptions, and therefore we cannot consider them. Blackwell v. State, 29 Tex.Crim. App., 194; Smith v. State, 31 Tex.Crim. Rep.; Lacy v. State, 30 Tex.Crim. App., 119; Miller v. State, 31 Tex.Crim. Rep.. There is nothing in appellant's motion to continue this cause on the grounds alleged by him, of excitement and prejudice then existing against him in Greer County. Miller v. State, 32 Tex. Crim. 319; Id., 31 Tex.Crim. Rep..

There are a great many special instructions requested by appellant and rejected by the court. We have considered them all carefully in connection with the charge given by the court. We have not time to discuss these requested instructions, but we believe the charge of the court, as given, applied the law to every phase of the case presented by the evidence. One requested charge, however, will be noticed. Counsel for appellant seem to think that the following theory of the case was presented by some testimony; that is, that appellant may have been justified in the first shot, and, as the deceased abandoned the difficulty, and was on the retreat, and appellant and his accomplice, Horatio Thomas, shot him afterwards, when neither of them was in any danger, that, therefore, manslaughter was presented. We do not so view the case. That the first shot was a fatal shot is positively shown, and nowhere denied. The court charged fully and liberally the law of self-defense, applying it directly to what was done by the deceased at the time of the first shot, so that, if the jury should believe certain evidence, they should acquit the defendant of all guilt in the first shot. This is not a case in which the appellant may have been justified in the first shot, but culpable in the subsequent shots. It is not a case in which he shot at and missed the deceased, or a case in which he shot and inflicted a wound which was not mortal, and the deceased abandoned the difficulty, and defendant repeated the shots when he was in no danger, but a case in which a mortal wound was inflicted by the first shot. Now, the court instructs the jury, if they believe this shot was fired under certain circumstances, to acquit the defendant. This is all to which he was entitled, if in fact, he was entitled to any charge on self-defense. We are of the opinion, however, that there was neither self-defense nor manslaughter in this case. There is no testimony remotely presenting self-defense or manslaughter, but a case in which appellant coolly, deliberately, and avowedly sought the deceased with the intention expressed of killing him if he questioned his conduct in regard to a certain yearling. Appellant was armed; the deceased was not. The deceased did question his conduct in regard to the yearling; had a right to question it. Appellant was armed, and ready to execute his threat; and, whether the deceased threw his hand to his pocket or not, the proof is conclusive that appellant was there for the purpose of killing him, and did kill him. Under this state of case the court was not required to charge on self-defense, and hence was not required to charge upon manslaughter resulting from the conduct of the deceased in putting his hand behind him, because, whether the conduct of appellant made it necessary for the deceased to resort to arms, yet the appellant's intention was to kill him if he mentioned the subject pertaining to the yearling. By reference to the record it will be seen that appellant had taken the yoke from a certain yearling belonging to one Ringer, with whom he was at enmity, and was driving said yearling. The deceased, who was a Ringer man, "as the case has it," witnessed these facts, and when they met mentioned the subject to appellant. Appellant was driving the yearling off to kill for the purpose of injuring Ringer, if not to steal the same. When the appellant saw deceased, and recognized him, he stated that he intended to kill him — repeating the statement — if he mentioned the yearling. Appellant went to where the deceased was armed with a pistol, and when the deceased did mention the subject of the yearling he shot him, inflicting a deadly wound upon him. We can find no self-defense nor manslaughter in such a case.

Appellant challenged a number of jurors for cause, which were overruled, and he saved his bill of exceptions. The answers of said jurors, in connection with the qualification of the court to the bill of exceptions, show that those of said jurors as had formed any opinion in the case had done so, not from having heard any witness state the facts, but from rumor and hearsay; and they further declare that, notwithstanding any opinion then entertained as to the guilt or innocence of appellant, they could give the appellant a fair and impartial trial on the evidence in the case. Under the rule laid down in the case of Suit v. State, 30 Tex.Crim.

App., 319, the jurors so challenged by appellant were competent, and the court did not err in overruling said challenges.

It appears from the bill of exceptions that the sheriff summoned the original venire, and also a number of jurors, as talesmen. This he had no right to do, nor were they brought forward on the special venire; but it appears that when the sheriff was ordered to summon talesmen he brought in some of these same jurors who had been originally summoned by him, though not on the special venire. There was no suggestion in this action of any corrupt motive on the part of the sheriff in originally summoning these men, and we see no error in the sheriff's summoning and bringing them into court when he was authorized to summon talesmen on the exhaustion of the special venire. Nor was there any error in the refusal of the court to have the sheriff re-sworn to summon the talesmen, as he had been previously sworn in that regard. There is nothing in appellant's objection to being placed on trial for want of service of a true copy of the indictment in the case. The first copy served, it appears, was not a true copy; but another was served on the same day, and within the time required by law, before he was brought to trial. With reference to service of the special venire, he was served on Saturday, the 7th inst., and on the following Monday he was brought to trial. This was in accordance with the statute allowing him one entire day's service of the venire before his case should be tried.

Appellant assigns as error the refusal of the court to permit him to prove by the witness Byers that he (Byers) was present when Dr. Lewis examined the wound through the body of the deceased, and that he took out of said wound what looked to witness like stringy blood; and that Dr. Lewis said at the time that it was thread from the clothing of deceased, which had been carried into the wound by the ball. In the explanation of the court to this bill of exceptions it is shown that the witness, Dr. Lewis, was present, and tinder the rule. This appears to us to be hearsay testimony; but, concede that it was not, the record shows that he was subsequently examined, and that he testified that he took the pieces of thread from the clothing out of the wound of the deceased. Inasmuch as said witness was present and examined on this point, there was no error in rejecting the testimony.

The appellant also assigns as error that the court permitted S.H. Tittle, the sheriff, to testify that on Saturday, while appellant was in jail under this charge, he gave a note and mortgage to secure it with a bill of sale on the two horses spoken of by the witnesses, Blocker and Vanleer. The appellant claims that this testimony was not admissible, because at the time he was in jail, and had not been duly warned by the sheriff. As we understand it, this was not a confession, but appears to have been an independent act of appellant, executed in the course of a business transaction. The mortgage itself, if not executed under some further duress than the mere fact of being in jail, was such a contract as appellant was authorized to make. It was authorized to go to record, and could have been introduced as evidence in this case. No objection was made, as we understand it, to the character of the testimony as being parol when the writing should have been produced. But, concede that the execution of this note and mortgage on the horses was in the nature of a confession, yet the evidence shows that within a day or two previous the appellant had been duly warned by the sheriff. Maddox v. State., 41 Tex. 205.

Appellant also assigns as error that he asked the witness, Thomas, on cross-examination, when on the stand, if he (Thomas) had not run off before the shooting of Mack Muse, to avoid a prosecution for insulting Ringer's wife. The object sought was to show that Thomas, who engaged in the shooting with appellant, had animosity against Ringer, and, as deceased was a Ringer man, also had animosity against him. The bill of exceptions, however, does not disclose what the witness, Thomas, would have testified, and so, failing in this, the exception taken cannot avail appellant. Buchanan v. State, 24 Tex.Crim. App., 195; Walker v. State, 19 Tex.Crim. App., 176. This judgment is affirmed.

Affirmed.