Polk and Watts v. State , 35 Tex. Crim. 495 ( 1896 )

HURT, Presiding Judge.

Conviction for murder in the first degree, and punishment assessed at confinement in the penitentiary for life. The indictment in this case was presented April 7th, 1893. This case was called for trial on the 5th day of November, 1895, but the trial did not begin until the 6th day of November, 1895. Appellants moved the court to continue the cause for the want of the testimony of a number of witnesses, setting forth the evidence expected to be obtained from said witnesses. In the application they state that said witnesses had all been subpoenaed on the 20th day of April, 1893, and that at a former term of court all of said witnesses were present. For Navarro County, there are three terms of the District Court for each year. The first term begins on the first Monday in April; the second, on the first Monday in July; and the third, {he fourth Monday after the third Monday in September. At the time this indictment was presented the Act of 1889 was in force. When this case was called for trial the Act of 1893 was in force, which Act went into effect the first Monday in June, 1893. As above stated, the bill of indictment was presented on the 7th day of April, 1893. The June term of 1893, the August term of 1893, the January term of 1894, and the June term of 1894, and three other terms of the court, intervened between the filing of the bill and the term at which the cause was tried. Now, it will be noticed that the application states that the witnesses had been subpoenaed on the 20th day of April, 1893, and were present at a former term of the court. The term at which they were present is not stated. It may have been the June term, 1893, or some other. We are not informed. This demonstrates that there was no diligence used to obtain the presence of these witnesses, and disposes of the motion to continue the cause. Appellant requested th°e court to instruct the jury “that the State must, in all cases, identify the defendant or defendants, as the case may be, and point them out to the jury as the parties who committed the offense that is under investigation.” There is no question but that the appellants in this case were the parties about whom all of the witnesses were speaking when they were alluded to. We presume that appellants desired the court to intruct the jury that they must believe, or that it must be proved beyond a reasonable doubt, that these defendants were the parties engaged in the shooting, or in the murder. When we turn to the charge of the court, we find that by the fifth paragraph thereof the jury were required to believe “beyond a reasonable doubt, from the evidence, that the defendants, or either of them, * * * in Navarro County, on or about the 20th day of January, 1893, did unlawfully, and with malice aforethought, shoot with a pistol, and kill, Rufus Jamison.” This required the proof to show that these parties were the parties who killed the deceased, and no jury could find, beyond a reasonable doubt, that they killed the deceased, without believing that these parties were the parties who did it, because the court instructed the jury to find, before conviction, “that the defendants, or either of them, acting by themselves or together with Mack Hughes,” committed the crime. The charge upon this subject, when taken in connection with the charge upon alibi, amply presented the only issue in the case. Upon alibi the court charged “that each of the defendants claims that at the time of the shooting of Rufus Jamison, if he was shot, he, the said defendant, was at another and different place, and not at the place of the shooting. Now, if you believe this claim to be true, or have any reasonable doubt as to whether it may not be true, then you will find such defendant or defendants not guilty.” There was no error in omitting to charge upon circumstantial evidence. There was positive evidence of the parties’ participating in the main act, the killing; and, if not, the facts were in such close juxtaposition as rendered such charge unnecessary. The dying declarations of the deceased were admitted in evidence over the objections of the defendant. The objection was that there was hope of recovery remaining with the deceased when he made the declarations. It is true that immediately upon receiving the wound the deceased remarked to Mack Hughes that he would get even with him. But a very short time afterwards he stated to his companion that the wound was mortal. He continued to make this statement'up to the time of his death. It is not questioned but that he was sane and rational. It is not pretended that questions were propounded leading him to make any particular statement. We are of opinion that the declarations were admissible. It is contended by appellants that the evidence is insufficient to support the conviction. A number of witnesses swear to facts which, if true, establish the guilt of the appellants beyond any question. Anumber of witnesses swear to facts tending to show an alibi for each defendant. . There was a conflict in the testimony, and the jury settled it against appellants, and we cannot disturb their verdict. The verdict of the jury is objected to because of its form. It reads: “We, the jury, find the defendants, Biz Watts and Austin Polk, guilty of murder in the first degree, and assess their punishment at life imprisonment in the State penitentiary.” Just such a verdict as this was approved by this court in Mootry v. State, ante p. 450, decided at the present term of this court. The judgment is affirmed.

Affirmed.