Holden v. State , 232 S.W. 803 ( 1921 )

On Motion for Rehearing.

[5] In his motion for rehearing appellant attacks the accuracy of some statements made by us in the original opinion with reference to the fact that appellant was not under arrest at the time he made certain statements and given in testimony. What we said in the opinion was not accurate, and any mention of the matter at all was superfluous, and should not have been indulged. The witness to whom the statements were made by appellant was a justice of the peace, and it is likely from a closer inspection of the statement of facts that he was acting as a de facto officer, in any event;- a felony having been committed in his view by appellant before the latter made the statement testified to by said witness. However, in the absence of any objection made on the trial of the case, this court would not be in a position to say that any error was committed in the admission of said testimony. The matters testified to by said witness appear to have been in most particulars stated' by appellant himself while on the witness stand. There was no sort of question in the record of the fact that appellant shot the injured party, nor of the fact that his pistol snapped. If it were necessary to discuss that matter further, we would feel inclined to hold much of said statement made by appellant to said witness as res gestas of the transaction, and therefore admissible.

[6] We confess ourselves unable to see any force in appellant’s contention that he was deprived of counsel by the action of the state. He was before the court without any attorney. The court, learning of his desire for suspended sentence, appointed counsel to prepare an application therefor for him. This ' did not justify the accused in believing that said counsel was appointed to represent him during the entire ease, nor would the fact that he may have entertained such belief justify us in reversing this case, and what we have just said would apply to the fact that the judge presiding appointed another lawyer to assist appellant in selecting a jury. One accused of crime may not go through a trial, after having the benefit of consultation and advice from counsel of his own choice, who sees fit to abandon the case when the trial is ready to begin, and thereafter assert that, because a merciful trial court appoints counsel for him to prepare some pleading or to assist him in the selection of a jury, therefore he may plead that he was thereby misled into believing that such counsel would continue their services, when, so far as we know, they withdrew when they had finished the task requested of them by the trial court, and without any possibility of misunderstanding.

We are unable to find any error complained of in said motion for rehearing, which leads us to conclude that it should be granted, and the same is accordingly overruled.