Gaines v. State , 95 Tex. Crim. 368 ( 1922 )

This appeal is from a judgment condemning the appellant to suffer death for the offense of murder.

A branch postoffice in the city of Dallas was robbed and in the transaction George Street, an employee in the postoffice, was killed. The appellant was indicted by the Federal grand jury at Dallas, Texas, for robbery, and by the State grand jury for the murder of Street. He was arrested in the State of Indiana and by order of the Federal judicial authorities there was placed in the custody of the United States Marshal of the district in which Dallas is situated that he might be tried in the Federal court. He was by the consent of the Federal authorities placed in the custody of the sheriff of Dallas County that he might be tried in the State court for the offense of murder. He applied to the United States district judge for release upon the proposition that the State authorities were without jurisdiction of his person. Upon the trial of the habeas corpus proceeding involving this question appellant was remanded to the custody of the State authorities. Upon the entry of this order by the Federal judge he gave notice of appeal. These transactions are by bills of exception brought before this court, the appellant contending, first, that he having been brought to Texas to undergo trial for the Federal offense, he was not amenable to trial in the State court in the absence of extradition proceedings; second; that the Federal authorities having first acquired jurisdiction of him, the State courts were not authorized to try him, and; third, that he having given notice of appeal from the decision against him in the habeas corpus proceeding, his trial in the State court should have been postponed upon his motion until the appeal was decided against him. The case of Dominguez v. State, 90 Tex.Crim. Rep., 234 S.W. Rep., 79 and Blandford v. State, 10 Texas Crim. App., 640, to which appellant refers as supporting his contention that extradition is necessary, in our opinion are not in point. They relate to the right of the United States government to try one extradited from a foreign country for an offense other than that named in the extradition proceedings. The right of a person extradicted under these circumstances falls under the treaty relations of the United States government and the foreign country. The principles controlling that character of extradition have no force in the transfer of offenders from one State to another. Ham v. State, 4 Texas Crim. App., 645; Kelley v. State, 13 Texas Crim. App., 158; Underwood v. State, 38 Tex. Crim. 193. The matter in hand, however, is not one of extradition. The United States government found the appellant, who is charged with an offense against its laws, within its jurisdiction and brought him to Texas for trial. The Federal authorities were under no obligation to surrender him to the State, but having done so, he is not in a position to complain. He having offended against two sovereigns, it did not lie with him to choose the jurisdiction within which he should be tried. Willoughby on the Constitution, Vol. 2, page, 1204; Franklin v. United States, 216, U.S., 559; 54 Law Ed., 615; Grafton v. United States, 206 U.S. 333; 11 Ann. Cas. 640; Ex parte Mason,105 U.S. 696; Funk v. State, 84 Tex.Crim. Rep.. We think this conclusion is not in conflict with the cases to which the appellant refers, viz: United States v. Tarble, 80 U.S. 397; Ex parte Johnson, 167 U.S. 119; Ex parte Chance, 58 S.W. Rep., 110; Taylor v. Taintor, 16 Wallace, 368; Ableman v. Boothe,62 U.S. 506; Jurgio v. Brush, 140 U.S. 291; Lambert v. Barrett,159 U.S. 660; Rogers v. Peck, 196 U.S. 436. Provision for appeal from a decision of the United States court in a habeas corpus proceeding brought in the United States court to contest the right of the State to restrain one of his liberty, has been made by acts of Congress and procedure for the appeal prescribed. See United States Statutes, Arts. 764-5-6. The effect of such proceeding, when the question is whether the detention is in violation of the Constitution, laws and treaties of the United States, is to stay the hand of the State court; but its power to proceed is deterred only so long as the proceedings are pending in the courts of the United States. United States Ann. States. (Flood Co.,) Vol. 1, page 954; In Re Shibuya Jurgio, 140 U.S. 291.

In the instant case the bill of exceptions in which the appellant makes complaint of the refusal of the trial court to postpone his trial pending a decision of his appeal to the United States Supreme Court, advises us that the habeas corpus proceeding was heard, the relief prayed for denied and notice of appeal given to the United State Circuit Court of Appeals, "which appeal was allowed." The evidence heard on the motion to postpone the case in the trial court is not set out and we are not fully informed concerning what impelled the trial judge to overrule the motion to postpone. Under such circumstances we must presume that the things that the trial court did it had the right to do. In other words, in the absence of something showing its error in the record, we must presume its rulings correct. We apprehend that the mere notice and allowance of appeal from the decision of the United States district judge would not suspend the power of the State court to proceed with the trial, unless the appeal was perfected, and in support of the judgment denying the postponement, the presumption that it was not obtains. We, therefore, do not feel justified in reversing the judgment to await the decision of the United States Circuit Court of Appeals, or of the United States Supreme Court, in the absence of an affirmative showing that the appeal was perfected and prosecuted in accord with the procedure provided for that purpose.

The witness Scrivnor admitted upon examination that he had been convicted of several felonies in the State. Objection was made to his testifying upon the ground that he was an incompetent witness. This objection was overruled and exception reserved. Explaining his action, the trial judge said that he had been advised that Scrivnor had been pardoned by the Governor showing the pardon and the restoration of citizenship would be introduced in evidence, and in fact, it was introduced. Under these circumstances, we think there was no harmful error. It is true that the demand for the best evidence that a witness has been convicted of a felony may be waived and that parole proof of his conviction will suffice to disqualify him, but in the instant case, if the court had sustained the objection the prosecution would have had a right to introduce the pardon and then renew the proffer of the testimony, and this, in substance is what was done. With the pardon in evidence, the witness was not disqualified. The fact that the State, by its questions, waived the proof of conviction by the certified copies of the judgment, did not deprive the State of rehabilitating the witness by showing the pardon. Hunnicutt v. State, 18 Texas Crim. App., 498.

The witness Long testified that he found certain things in a house on Jennings Avenue in Fort Worth. The point made against this testimony is that it was violative of the constitutional provisions, State and national, against unreasonable searches and seizures. From Long's testimony, it appears that he was a postoffice inspector of the United States, that he with others went to a house — No. 2733 Jennings Avenue — and searched the premises without a search warrant. The house was unoccupied and vacated. There were newspaper men present. The house was in great disorder; the bed clothes were strewn around and papers and books and things lying upon them; papers were torn into pieces and thrown in front of a burner or gas stove, part of which had been burned and part of which were unburned; there were various pieces of laundry slips showing that laundry had been delivered to the house. These laundry slips were exhibited by the witness. The table was set with dishes upon it, and all of them were dirty. Everything had the appearance of a hasty departure. To this proof objection was made on the ground that it was hearsay, and that it was obtained by unreasonable search. This bill does not reveal the relation of the evidence to the other matters in the case. However, taking account of the nature of the case, we have examined the statement of facts, from which we understand that the appellant, about a week or two before the robbery, had rented the house at No. 2733 Jennings Avenue, Fort Worth, Texas; that the house was occupied thereafter by the appellant and his wife, and George Meyers and his wife; that on the day after the robbery, the witness Dowdy visited the house and, in the capacity of a transfer man, took from it a trunk and some suit cases, he at the time finding two women at the house. The baggage was taken to the Santa Fe depot and checked to Houston, and subsequently identified as the property of the appellant. At least, the checks were found in his possession, and articles indicating that he was the owner of the trunk were found therein.

The evidence shows that the house was rented from Mrs. Boone; that George Meyers, one of the participants in the robbery, was present and acted with the appellant in renting the house. This took place about the 20th of December. Mrs. Boone visited the house about the 8th of January and saw the women there who corresponded with the description given by Dowdy of the women from whom he received the trunk and suit cases. Apparently at the time that the house was entered by Long, it had been abandoned or vacated by the appellant. The robbery had been committed and he had fled the county. According to the witness Long, the house had been vacated.

Such articles as were obtained from the house and described in evidence appear to have no bearing upon the case adverse to appellant. There were some pieces of paper and some laundry slips, but the contents of them is not shown to have been of any harmful effect. It was shown from other evidence that the appellant had rented the house; that he had occupied it and had abandoned it. After it was abandoned, it was entered by the witness Long and others. In view of this condition, we hardly feel justified in discussing the law of searches and seizures. If that question be discussed, however, it would seem that the information obtained by the postoffice inspector, he not being a state officer, would not preclude the use of the facts acquired by him by the state authorities in trying the case. It is said by the United States Circuit Court of Appeals in the companion case of Rowan v. The United States:

"The circumstance that a witness introduced to prove a fact or transaction acquired knowledge thereof by unlawful conduct for which the party offering his testimony was in no manner responsible does not render his testimony in regard thereto inadmissible. It is permissible for the United States to make use of pertinent evidence wrongfully obtained when it had no part in wrongfully obtaining it. Burdeau v. McDowell, U.S. Supreme Court, June 1, 1921; Adams v. New York, 192 U.S. 585."

Counsel for the State in his argument before the jury, among other things, said: "If the defendant is guilty I know you will hang him, because you swore you would. You wouldn't be on this jury if you didn't do it. If you do not think he is guilty, turn him loose, but do not compromise in this case. It is one or the other, and every man in this country will get on his knees and thank God you had the courage to hang him." Continuing, he said: "Now gentlemen,' I will leave it with you. I just want to say this, you might as well tear up the statute books or burn them if a man wouldn't convict him on this testimony." Upon making these utterances State's counsel was promptly reprimanded by the trial judge and the jury was immediately told that the remarks were highly improper, should not have been made, and that the jury must disregard them and consider them for no purpose whatever. The impropriety of counsel expressing his opinion concerning the guilt of the accused on trial has often been asserted by this court. See Pierson v. State, 18 Texas Crim. App., 563; Branch's Ann. Penal Code, Sec. 565, and cases cited. However, such argument when it invokes a prompt reprimand from the court, accompanied by an instruction to the jury to disregard it, has not, so far as we are aware, been regarded as authorized a reversal. Precedents appear to the contrary. Young v. State, 19 Texas Crim. App., 536. See Rose's Notes on Texas Reports, 2d Ed., Vol. 5, page 502. See also House v. State, 19 Texas Crim. App., 239; Beeson v. State, 60 Tex.Crim. Rep.; Borrer v. State,83 Tex. Crim. 200. Speaking generally, the improper remarks which have been regarded as so obviously hurtful as to render the court impotent to withdraw them are remarks which puts some new and damaging fact before the jury, or remarks which are in defiance of some mandatory provision of the statute. Examples are found in bringing to light the former convictions, and references to the failure of the accused to testify. These examples are not exclusive, but are instances illustrating the character of arguments that are within the scope of the rule stated. See Hatch v. State, 8 Texas Crim. App., 418; Branch's Ann. Tex. Penal Code, Sec. 371; also Miller v. State, 45 Tex.Crim. Rep.; Branch's Ann. Tex. Penal Code, Sec. 374, 375 and 376. Counteracted by the trial judge as they were, we do not regard the remarks such as to justify a reversal of the judgment.

Complaint is made in a bill of exceptions of the fact that there was received in evidence certified copies of pardons which restored the capacity of the witness Scrivnor. The bill as qualified shows that no objection was made, which obviates further discussion of the question.

The witness Long was in the postoffice building soon after the robbery and found buried in the cement under a window sill a bullet which he afterward extracted. This bullet was introduced in court and was of the same caliber as that fitting a pistol which appellant had placed in possession of a pawn-broker after reaching Indianapolis, which pistol was also identified as having been in possession of one of the confederates in the robbery. According to the witness Long, the bullet passed through part of the facing or sill of the window before entering the cement, and he testified that a line projected from the place where the bullet was, and following the course indicated by its entry into the cement and its passage through the window sill, would showthat it was fired from the northwest corner of the lobby of the building, and that it was not fired from the window of the building. This was objected to upon the ground that it was hearsay, which objection we think is not tenable. See Moore v. State, 96 Tennessee, 206; Ency. of Evidence, Vol. 5, page 497.

It is claimed that it was an experiment not made in harmony with the rules requiring that substantially the same conditions exist as those prevailing at the time the shot was fired. It is doubtful whether the testimony would be classified as an experiment. If so, we think there would be no valid objection to proving that the line was drawn as indicated by the witness and reached a point designated in his testimony. 53 American St. Rep., 377; Wharton's Crim. Ev., Art. 783a; American Law Rep., Vol. 8, page 21-59; Mason v. State, 85 Tex.Crim. Rep..

The question occurs, does the language used by the witness, viz: that it showed the shot was fired from the northwest cornerof the lobby, classify the testimony as an opinion which would be inhibited under the general rule against opinion testimony? See Branch's Ann. P.C., Sec. 131. We believe the statement mentioned would not be condemned by the rule against opinion testimony but that it is rather characterized as a shorthand rendition of the fact, viz: simply a means of informing the jury that the line projected by the witness reached the point mentioned. See Wharton's Crim. Ev., page 960. Even however, if the evidence trenches upon the rule against opinion testimony, we are not prepared to hold that its admission was such error as would have been harmful to the accused. This we say for the reason that we fail to discern its materiality from the bill of exceptions, while from the statement of facts we learn that the fact that the bullet so found in the building was one of the circumstances corroborating the State's theory that the shots were fired by the assailants in committing the offense. We are not able to find from either the bill of exceptions or the statement of facts that the location from which the bullet may have been fired would serve to injure the accused. The evidence was definite and direct that he was armed with a pistol, agreed to join others in committing the robbery, that he was present and took part in the robbery, that he fired his pistol and that others did so. He was, therefore, under the undisputed evidence a principal offender both under the phases of our statutes defining principals as those who being present give aid or encourage those who commit the criminal act as well as those who agreeing to the offense are present, whether taking part or not. The evidence leaves no question but that the use of firearms by those taking part in the robbery was contemplated in advance and that the shots were fired pursuant to the common design, and that in consequence of the shots the deceased lost his life.

Scrivnor, an accomplice witness, testified to the formation of a conspiracy to commit the robbery, and that he and appellant and others were parties to the agreement, appellant at that time going under the name of George Wheeler. All the participants were armed. In the commission of the robbery Street was shot and killed and another postoffice employee was wounded. The fact that the robbery was committed and that the tragedy occurred was proved by witnesses who were present in the postoffice at the time the robbery took place. The State furnished direct evidence aside from that of the accomplice that the appellant was present, taking part in the assault and firing his pistol, and that one of the shots fired killed the deceased.

We find no weakness in the evidence, nor fault in the procedure which warrants a reversal of the judgment. It is, therefore, affirmed.

Affirmed.

ON REHEARING. May 16, 1923.