Cole v. State , 73 Tex. Crim. 457 ( 1914 )

Appellant was prosecuted and convicted of murder, and his punishment assessed at seventeen years confinement in the penitentiary.

Appellant shows that when the case was called for trial the district attorney asked leave of the court to talk with the witnesses, which was by the court granted. When the district attorney started to do so, appellant insisted that the witnesses be sworn and placed under the rule, and they instructed not to talk to each other in regard to the case, and not to talk to anyone in regard to the case other than the attorneys engaged in the trial of the case. The court called the witnesses in and complied with this request of the defendant's attorney, and further instructed them not to talk with the attorneys about the case unless in the presence of an officer, and sent the witnesses out under the rule in charge of an officer. Dan Todd is constable of precinct No. 3 in Milam County, the precinct in which the offense is alleged to have occurred, and was the first officer to arrive at the scene of the homicide, and was the officer who made the arrest. The district attorney used him to call the witnesses he desired to talk with, and talked with the witnesses in the presence of this officer of Milam County. Appellant objected to the district attorney being permitted to talk with the witnesses in the presence of Constable Todd, he being also a witness in the case. This is a matter within the sound discretion of the court, and the bills state no facts tending to show that the court abused his discretion in allowing this officer to call the witnesses for the State's counsel, and be present when the State's counsel was talking with them, one at a time, as the court had instructed the witnesses not to talk even with counsel about the case except in the presence of an officer. The mere fact that an officer in the discharge of his duties goes to the scene of a homicide and makes an arrest, and is called on to testify to what he there saw, to detail the facts as it appeared to him, would not prevent the court placing such an officer in charge of the witnesses placed under rule, nor would it be error to permit the district attorney to talk with the witnesses, one at a time, in the presence of this officer. These are matters in the discretion of the trial judge, and some injury, some abuse of discretion in the premises must he shown, otherwise such matters present nothing for review. McMillan v. State. 7 Texas Crim. App., 142; Williams v. State, 37 Tex.Crim. Rep.; Brite v. State, 43 S.W. Rep., 342.

In another bill it is insisted that the court erred in permitting the witness Lethia Adams, a girl ten years old, to testify. Her testimony in this record discloses that she has sufficient intellect to intelligently give her testimony, and to relate the transaction as she saw it. From her evidence it also appears that she knew that punishment awaited her if she swore falsely, and that she could be incarcerated in prison. Williams v. State, 12 Texas Crim. App., 127; Oxsheer v. State,38 Tex. Crim. 499, and cases cited in secs. 951 and 952, White's Ann. Code of Criminal Procedure.

While the court submitted manslaughter, we do not think the evidence raises that issue. The evidence for defendant would show that a wordy altercation occurred when deceased started at him with a drawn hatchet, when he fled into the house, secured his gun, stepped out of the house, when deceased again started towards him with his hatchet, when he fired, and deceased turned and ran. If this is true this would be self-defense, and is submitted in a way not complained of by appellant. The State's case is that deceased started to his work, when words ensued; appellant picked up a singletree, when deceased picked up a stick; appellant then ran in the house after his gun, when deceased fled from the scene; that after getting his gun, appellant pursued deceased some seventy-five yards, shooting him while deceased was trying to get away. Consequently, the evidence amply supports the verdict finding appellant guilty of murder.

The alleged newly discovered evidence would only tend to impeach the witness Maggie Smith, and presents no good ground for a new trial. Barber v. State, 35 Tex.Crim. Rep.; Franklin v. State, 34 Tex.Crim. Rep.; Watkins v. State,33 Tex. Crim. 605; sec. 1149, White's Ann. Proc.

There was no error in refusing to strike out the testimony of Mattie Smith and Janie Jones. Their evidence was upon a material issue in the case, and the fact that Constable Todd was present, if he was, when the district attorney talked with each of them, would not render their testimony inadmissible.

Under the indeterminate sentence law the sentence should have been that defendant be confined in the penitentiary for a period of time not less than five years nor more than seventeen years, and the sentence is here corrected and reformed in such respect, and sentence will be so amended, and judgment entered accordingly.

The judgment is affirmed.

Affirmed.