Barkman v. State , 41 Tex. Crim. 105 ( 1899 )

DAVIDSON, Presiding Judge.

was convicted of murder in the second degree, and his punishment assessed at ten years confinement in the penitentiary.

Appellant attacked the indictment on the ground that he was not present when the grand jury was impaneled. This matter was investigatéd by the court, and it was shown, in substance, that he was in jail in Bed Biver County when the grand jury presenting the indictment was impaneled. He made a request of some of the officers to carry him to Bowie County, and also for his brother to have him conveyed to that county by the opening of the term of the District Court. No request was made to the district judge, the only party who had authority in the premises. The law provides that the accused may.be present when the grand jury is impaneled, to the end that he may challenge the array or any member of the panel. But where he is confined in jail, and desires to be present, he or his counsel must make that wish known to the district judge. This was not done, and for that reason there is no merit in this contention. He also made a motion to compel the State to disclose ■ the names of ■parties whom he alleges agreed to pay money for the employment of ■private counsel to prosecute him. The same question was presented in cause Ho. 1658 (Barkman v. State [decided at the present term], 52 Southwestern Reporter, 69), and for the reasons assigned in that •opinion this motion is held not well taken. C. A. Hooks was introduced in behalf of the State, and, after stating he was justice of the peace and held the inquest over the body of one S. P. Damon, he stated that defendant was not present, and that Perry, the deceased in this case, testified as a witness before him on that inquest. Hooks was then permitted to narrate before the jury the testimony of Perry .given at the inquest over the body of Damon. This evidence was permitted to go to the jury on the question of motive, Perry being "the only witness who testified at said' inquest in regard to the killing •of Damon. Objections were reserved by appellant to this testimony ■on the grounds (1) that it was immaterial, (2) that it was irrelevant, and (3) that he was “not present.” Grounds of objection that admitted testimony is immaterial and irrelevant will not be considered by this court, unless the testimony is inadmissible for any purpose. If ■admissible for any purpose, such general objections will -not be sufficient. That defendant was not in fact present at the inquest presents perhaps an objection for consideration. The fact that Perry’s .statement was made under oath is not more binding than if not made Tinder oath. Usually this character of testimony is hearsay. It' is always permissible, where that question is at issue, to prove motive, and in this case we are of opinion the State had the right to show that Perry was an adverse witness to appellant at the inquest, and it would be immaterial as to how defendant gained this information. If in fact he was aware of the adverse testimony of the deceased Perry, it would be permissible to prove that Perry was such adverse witness. The more important question is whether or not appellant was aware of the fact that Perry had testified adversely to him oh ;said inquest, the question at issue being motive. The bill itself fails to show that appellant was ignorant of the testimony of Perry. In •order to make this bill complete and subject for revision, it should have shown that defendant was not apprised of said testimony. The •theory of the prosecution was that appellant killed Perry because of the fact that he had testified adversely to him at the inquest held •over the body of Damon, whom appellant ■ was charged with killing. The court states that the testimony objected to was introduced alone' on the question of motive, and it was shown on this trial that appellant was aware of such testimony, and on account thereof made threats against the life of Perry. Therefore the objection that “he was not present” is not a valid one. Tisdale, who was foreman of the grand jury presenting this bill, testified for the State that he heard Armsworthy and Hickerson testify before the grand jury, and that neither of them stated that the witness Bill Mathis was in the 16 to 1 Saloon when defendant shot and killed deceased. State’s counsel asked if he had been requested to pay particular attention to the witnesses in regard to whom they would swear were present at the killing of deceased: In reply he stated that the district attorney requested him to find out from the witnesses before the grand jury the name of every person who was present when the killing occurred. To this request defendant objected, on the ground that it was hearsay. This bill is very indefinite; but, if it was intended to impeach these two witnesses in this manner, the ruling of the court was erroneous. Hyden v. State, 31 Texas Crim. Rep., 401. But it will be observed that this objection was not interposed to the testimony that these parties failed to state in the grand jury room that Mathis was present at the time of the shooting. The objection urged was to the statement that the district attorney requested him to ascertain from the witnesses who came before the grand jury the name of every person who was present when the killing occurred. As presented, we do not believe this bill shows such error as requires a reversal of this judgment. The clothing worn by deceased at the time of the homicide was introduced in evidence over appellant’s objection. This clothing was sufficiently identified to show it was the identical clothing worn by deceased when appellant shot him, and in practically the same condition. There was no error in admitting this testimony. Hart v. State, 15 Texas Crim. App., 202; Levy v. State, 28 Texas Crim. App., 203; Jackson v. State, 28 Texas Crim. App., 370.

We do not believe there is any error in the sixth bill of exceptions reserved to the argument of one of State’s counsel. If the argument was improper at all, it was eliminated by the court, who instructed the jury to disregard it. It may be further noted that the bill shows said remarks were in reply to arguments and statements of defendant’s counsel in which, they discussed the .character of defendant at length.

Appellant made an application for continuance. The diligence as to John and Henry Herron is entirely insufficient. . The parties were out of the State, and had been for some time prior to the meeting of the court. It seems they had enlisted in some regiment of United States volunteers. Ho interrogatories had been applied for or filed. While • the witness Morris was not beyond the State, so far" as the record shows, when the court docket was called on the 23d of May, he- not being present, process was not asked for him. As to the witness Houston, the State’s testimony shows that he was not present, and did not hear the conversation between appellant and Hardin alluded to by appellant in his application. It does show that Joe Barkman, appellant’s brother, came up about the time the conversation between defendant and Hardin terminated. Joe Barkman was present at the trial, but was not placed upon the stand as a witness. If the conversation occurred, Joe Barkman could have testified to that portion of it he may have heard, and he certainly could have testified to the fact that Houston was present, if true. We do not believe there was any error in overruling the motion for continuance.

The criticism of the seventeenth paragraph of the court’s charge we think is hypercritical. It is evident from reading the charge that ■the court was not limiting the consideration of adequate cause to the relative size and strength of the parties ; nor was it a charge on the weight of the testimony. How this could have injured appellant we do not understand. Criticism is also made of the charge because the jury were informed that they could consider the acts of the deceased coupled with his words, but did not inform them that they had a right to consider his acts alone; and the effect of this charge was to exclude a consideration of his acts, unless coupled with his words. We do not believe the charge justifies this criticism. That portion of it reads as follows: “Now, if from the acts of the said O. D. Perry, if any, or from his words coupled with his acts, if any, there was created in the mind of the defendant a reasonable apprehension that defendant was in danger of losing his life or suffering serious bodily injury at the hands of said Perry, he would have the right to defend himself. * * * If you further believe from the evidence that, at the time or just before he did so, it reasonably appeared to him [defendant] from some act of said 0. D. Perry, or from some words spoken coupled with his acts, if any, in the light of all the facts and circumstances known to and surrounding him at the time, viewed from the defendant’s standpoint, that it was then the purpose of the said 0. D. Perry to take the life of him [defendant], or do him some serious bodily injury,” etc., then acquit. We believe this charge does authorize the jury to consider the acts of Perry disconnected from any words he may have used. We have examined the court’s charge in the light of the testimony and the criticisms urged against it, and do not believe any of them are justified. Finding no reversible error in the record, the judgment is affirmed.

Affirmed.