Walker v. State

Winkler, J.

This is an appeal from a conviction for murder in the first degree.

Mrs. Eliza Walker, the mother of the appellant, who lived on Brushy Creek, in Falls County, Texas, and about a quarter of a mile from Walker’s Tank, also in Falls County, who had been a widow about twenty years, was the owner of a stock of cattle and horses, which she had owned eight or nine years, and knew of no one claiming them adversely to her; but some of her children had been talking about suing for their father’s part. The appellant and Matt Walker were setting up a claim. Mrs. Walker sold out her cattle and some of her horses, — all but a few of both cattle and horses that ran about home, — to one George Heaton, who lived about two miles from her.

Heaton commenced gathering the stock on April 9, 1878. George Walker a son, and George Lowe, a grandson of Mrs. Walker were assisting in gathering the stock. Walker’s Tank was situated about one-quarter of a mile from Mrs. Walker’s residence, in an open country, and near enough that, when the tank is full, the water in it can be seen from the house. On the day Heaton commenced gathering the stock (April 9, 1878), in the afternoon, when he was about half a mile from Mrs. Walker’s house and about one hundred and fifty yards from the tank, riding one horse and leading another, some one rode rapidly up behind him, and shot him with a pistol in the back. His horse plunged, and he fell to the ground and expired, but not until he had called to George Lowe, who was near by, and went to him; and not until George Walker had gone rapidly on horseback from the house to where he had fallen and was lying'on the ground. This is a condensed statement from the testimony of some of the witnesses.

At the September term, 1878, of the District Court of Falls County the appellant was indicted for the murder of Heaton, and one John Walker, Sr., an uncle of the defendant, was indicted as an accessory thereto ; and the appellant was arraigned, and entered the plea of not guilty. On March 19, 1879, the appellant was tried and convicted of murder in the first degree, and adjudged to suffer the penalty affixed by law for the crime of which he had been convicted. A motion for a new trial was made, and, being overruled, this appeal is prosecuted; and appellant has assigned errors as follows : —

1. The court erred in forcing the defendant to announce at the time said cause was called for trial, because of the reasons set out in his bill of exceptions No. 1. 2. The court erred in excluding the testimony of witnesses, as shown by bills of exception from two to seven, inclusive. 3. The court erred in its charge, in this: the charge does not present the law applicable to the case as fully as it should have done. 4. The verdict of the jury is contrary to the law and the evidence. 5. The judgment of the court is contrary to the law. 6. The court erred in overruling the defendant’s motion for a new trial.

The matter complained of in the first error assigned, as set out in the accompanying bill of exceptions, maybe summarized as follows : A special venire facias had been ordered and issued for sixty persons to serve as petit jurors on the trial of the case. By the return of the sheriff it is shown that but twenty-nine of the sixty had been summoned, the return further stating that all the others whose names were on the special venire were “ not found in the county.” There is no objection taken to the special venire facias, nor to the manner of service, nor to the return of the sheriff, nor yet to the manner of service of the names of those who were summoned, upon the defendant. The naked question, then, is, did the court err in requiring the defendant to announce, there being but twenty-nine members of the special venire summoned, from which to select a jury for the trial?

The Code provides that “ where there is pending, in any District Court, a criminal action for a capital offence, the -district attorney may, at any time after indictment found, on motion, obtain an order for summoning any number of persons, — not less than thirty-six nor more than sixty, as maybe deemed advisable, — from whom the jury for the trial of such capital case is to be selected.” Code Cr. Proc., art. 548. The clerk shall issue a writ commanding the sheriff to summon the number of persons named in the order. Id., art. 549. The clerk, immediately upon receiving a list of the names of the persons summoned under a special venire facias, shall make a copy thereof, and shall furnish the same to the sheriff, who shall deliver such copy (of the names of persons summoned) to the defendant. Id., art. 553. And it is from the list of persons summoned, and not from the names upon the writ, that the jury is to be selected.

The object of the law in providing a special venire is believed to be to insure to the defendant accused of, and about to be tried for, a capital felony a fair and impartial trial, and to afford such an one proper means of ascertaining that the persons from whom a jury is to be selected possess the proper qualifications, and are not under the influence of any bias or prejudice ; and, therefore, he is not by law entitled to have the whole number ordered upon the special venire, nor, indeed, the whole number.served, to be present when the jury is to be formed ; so that there be present a number sufficient to secure a fair jury, the object of the law would be complied with, and he would have no just grounds-to ask for more than this. If the number was not sufficient for this purpose, or if the number present should become exhausted, from any cause, before the jury shall be completed, the deficiency should be completed in the manner prescribed by law. In the absence of any thing being shown to the contrary, we are of opinion the court did not err in requiring the defendant to announce under the state of case stated in the bill of exceptions. It is not shown any where in the transcript that any injury resulted, or was likely to result, to the defendant from the ruling of the court. What we have said on this subject, however, must be held in the future as i~\ subordination to the provisions-of the Revised Code, which, when it goes into effect, will furnish the rules in such cases, and those rules will be found in the Revised Code of Criminal Procedure, arts. 605-617, and in legislation subsequent thereto, if any.

By reference to the several bills of exception referred to in the second assignment of errors, it will be seen that the State’s witness George Wyers had stated, on cross-examinatian, that he was friendly to the deceased, and did not think he had made any threat against him. Defendant’s counsel then asked the witness whether, or not, the deceased was-prosecuting him (the witness) for theft of horses. The question was objected to on the part of the State, and the objection was sustained. 2. The defendant offered a witness, and asked him whether, or not, he (the witness) had heard George Wyers threaten to kill the deceased; to which the counsel for the State objected, and the court sustained the objection. The matter in the third bill of exceptions is the same as that of the second, the only difference being that another witness was offered to prove the same fact. .5. Defendant introduced a witness in his behalf, and asked the witness, whether, or not, she had heard George Lowe, a State’s witness, say that George Wyers, another State’s witness, had told him (Lowe) what to say when examined as a witness on the trial; which being excepted to, the objection was sustained, on the ground, as stated in the bill, that no predicate had been laid for the testimony by previous inquiry as to such statements of the witnesses Lowe and Wyers on their examination. The sixth presents the same legal proposition as the fifth. The seventh is the following : “ The defendant introduced a witness, who testified that, a day or two after the killing, he (the witness) saw a negro named Ben, in McLennan County, eight or nine miles from where the homicide was committed, who had two pistols, and witness purchased one, etc. Defendant then asked the witness what Ben said when he purchased the pistol from him.” On objection, the court refused to permit the question to be answered.

The questions raised on this assignment of error were: 1. Was it competent for the defendant to prove that one of the State’s witnesses had threatened to take the life of the deceased prior to the killing? 2. Had the proper predicate been laid for contradicting or impeaching the two State’s witnesses Wyers and Lowe, mentioned in bills of exception five and six. The subject of the seventh needs no further notice than to say the testimony was too clearly inadmissible to admit of argument.

The first question must be answered in the negative. It is not admissible for one on trial for a homicide to prove that another person had previously threatened to take the life of the deceased. This precise question was settled in the case of Boothe v. The State, 4 Texas Ct. App. 202. The issue of the trial was the guilt or innocence of the defendant on trial. Evidence is admissible if it tends to prove the issue, or constitutes a link in the chain of proof; and ■this seems to be the limit, and excludes all evidence of collateral facts, or those which are incapable of affording any reasonable presumption or inference. as to the principal fact or matter in dispute; and for the good reason stated for the rule by Mr. Greenleaf, that such evidence tends to draw away the minds of the jury from the point in issue, and to excite prejudice, and mislead them. 1 Greenl. on Ev., sects. 51, 52. The case does not involve the questions of principals, nor is there any feature of the case which makes the defendant’s guilt depend upon the ■conduct of the witness Wyers.

As to the second proposition: Whilst it is one of the recognized modes of impeaching the credit of a witness to show, by proof, that he has made statements out of court contrary to what he has testified at the trial, yet it is only in such matters as are relevant to the issue that a witness can be contradicted ; and it is the general rule that this can only be done—in case of verbal statements — by directing the attention of the witness to the time, and the place, and the person to whom he has made the supposed contradictory statements. 1 Greenl. on Ev., sect. 462. We are of opinion the defendant did not bring himself within the rule, either by proper interrogation of the witnesses whose testimony he proposed to discredit, or by showing the materiality of the supposed contradiction.

The third supposed error is, in effect, that the charge ■of the court did not fully present the law of the case. By the brief of counsel, the supposed defect in the charge is applied to the question of alibi, and it is argued that the charge does not explain the full meaning and legal effect ■of this defence.

The ninth paragraph of the charge is as follows : ‘ ‘Amongst •other defences set up by the defendant is what is known in legal phraseology as an alibi; that is, that if George Heaton was killed as alleged, that the defendant was, at the time of such • killing, at another and different place from that at which such killing was done, and, therefore, was not and could not have been the person who killed Heaton, if he was killed. Now, if the evidence raises in your minds a reasonable doubt as to the presence of the defendant at the place where George Heaton was killed (if killed), at the time of such killing, you will find him not guilty.” Counsel cite Boothe v. The State, 4 Texas Ct. App. 202, in support of the position that the charge is defective. To our mind, the authority cited does not support the proposition. The charge objected to comes up to the requirements of a charge on alibi, as laid down in Boothe’s case, especially when read in connection with what follows the paragraph complained of.

That the verdict and judgment are contrary to the law and the evidence are positions not supported by the record. It is true that the precise question, who it was that rushed up behind the deceased and fired the fatal shot in his back, depends upon circumstantial evidence, and to which we shall have occasion to recur hereafter. There is no room for controversy that the defendant was so situated as to have enabled him to place himself in position to do the deed, or that he entertained malice against the deceased, and had repeatedly threatened to take his life; and although the mother of the Walker family had endeavored to reconcile him and compromise the trouble about the property, he had refused to be conciliated; and, the law having been correctly charged by the judge, we are unable to say that the verdict and judgment are contrary to the law and the testimony.

There remains to be considered the sixth and last error assigned, to wit: that the court erred in overruling the defendant’s motion for a new trial. This subject presents two important features: first, the evidence of the identity of the defendant; and, second, the alleged newly discovered evidence disclosed in the affidavits filed in support of the motion for a new trial.

The tangible points in the evidence of identity of the defendant are about these: George Walker, a brother of the defendant, says he saw the deceased at the herd; some one trotted up behind him and shot him. Witness was on the gallery, in open view, and saw Heaton fall from his horse when shot. The party who did the shooting galloped off east; he was riding a dark-colored horse. Witness went to deceased, who was on the ground, lying on his side. He lived about fifteen minutes after witness reached him, and then died. He was shot in the back,—had a bullet-hole in his back. George Lowe was with the herd, and ■about fifty or one hundred yards from Heaton when he was shot. Witness said, on cross-examination, that Heaton was killed about four o’clock, p. m., and witness saw no one there except the assailant and Heaton. He could not tell the color of the person who did the shooting, and asked the deceased who did it; “ he said it was a negro, riding a black horse, and he did not know him. When I first o-ot to Heaton, he reached out his hand to me and said, ‘ George, I am shot; a negro did it.’ ” Abner Walker lived in the same neighborhood, and Heaton knew him well. 1 The defendant owned a black horse ; witness knew him and the horse well. On reexamination, the witness said: “I saw the person who shot Heaton; Heaton’s back was towards the party who did the shooting. Didn’t see Heaton look back. Heaton’s horse jumped when the pistol fired, and he fell at once. I did not see Ab Walker that day. I was looking at the party firing.” Another witness testified that, about two weeks before Heaton was killed, Heaton had gone to town, and defendant said he was going to kill him that evening; and said that the witness ought to help him (the defendant), because his (witness’s) wife was equally interested. Witness declined. About three weeks before that, the defendant proposed to him (witness) that, if he (the witness) would get a negro to kill Heaton, he (the defendant) would then kill the negro. Witness says he declined. Speaking of the time of the killing, he states that the defendant wore his mustache and a little goatee at the time.

We extract from the testimony of an important witness for the State, George Lowe, on whose testimony reliance is placed to identify the appellant as the person who shot the deceased, giving his testimony in the language of the statement of facts : “When Heaton was killed, I lived with my grandmother, Mrs. Walker. Defendant is my uncle. I was herding horses for Heaton on the day he was killed; they were the horses he bought from Mrs. Walker. I was employed by Heaton, was herding about one quarter or one-half mile from Mrs. Walker’s, and about one hundred yards from the tank. Heaton was coming to the herd, riding along toward me, leading one horse. Some person ran up behind him and shot him. His (Heaton’s) horse pitched and threw him off. Heaton called me, and I went to him; he was lying down. He was alive when I left him ; I went to the house. Uncle George Walker came to where Heaton was. The assailant was riding a brown horse; I think I had seen him before; he looked like old John Walker’s brown mare. John Walker is uncle of defendant. The man who killed Heaton was black; had mustache and goatee. His beard was about the size of defendant’s; don’t know exactly how he wore it. The man that killed Heaton was about the size of defendant; he had on a black hat or white hat; don’t remember which. Next time I saw defendant he had mustache and goatee, just as he had when Heaton was shot. I thought I saw Abner come by me about eleven o’clock the morning Heaton was killed. It looked like the same man who killed Heaton. Abner lives about one and one-half miles from the tank. The man that shot Heaton rode like Abner Walker, — looked like him; he shot him with a nickle-plated pistol. (Cross-examined.) The man that killed Heaton had on dark clothes. Saw him before he shot. It is an open country about the tank; some brush about a mile from Big Creek. I saw Heaton before on that day, at Mrs. Walker’s, in the morning; don’t know the time ; saw him nowhere else, only when he was killed. The man who killed Heaton went toward Big Creek, where he came from. Heaton was killed between four o’clock and sundown; the sun was between two and three hours high. It was a white man who shot Heaton, but he was blacked ; he was right black, from putting blacking on him. * * * The man that killed Heaton I took to be the same that passed me in the morning. He was black when he passed me in the morning. I was about one hundred yards from the man that passed me in the morning. Heaton’s horse pitched around before he fell off. I went to Heaton and asked him what was the matter, and he said he was shot; said nothing else to me. I did not hear George Walker ask Heaton who shot him. I have not conversed with George Wyers about this case. The person who killed Heaton was about ten steps from him (Heaton) when he fired, and was riding in a lope.”

Another witness, fixing the time at about nine o’clock on the morning after the killing, in the town of Marlin, says the defendant stopped near him about thirty seconds ; and says : “ I saw a dark, dirty, greasy appearance around about his neck, darker than he is. Defendant is a dark-skinned man. I have been engaged in blacking for amusement, when a boy, and have been blacked. The appearance was as if it was blacking, not well washed off.” This witness said, on cross-examination, that he was seventy-one years of age, and could not read without glasses, but could see as well as ever at a little distance. He says defendant went immediately to Welle’s shop.

The witness Welle testified that, on the morning after the killing, the defendant ivas at his store m Marlin, when a party who had gone to the scene of the homicide arrived in town, and were coming down by Read’s Hotel,- towards witness’s store,. W,e here quote from the testimony of this witness, as found in the statement of facts : “ Defendant, as-these parties came in sight, stepped into my store and asked for a drink of whiskey, and drank it. I turned and looked at the man, and turned back ; he was taking another drink; he stepped out at the back door, remained a few minutes, and came in and took a third drink. He then asked if I had flour. I showed him some in a dipper; he took some in his hands and rubbed it over the back of his hands, twisting his hands over each other. He asked me if I had better flour. I cut open a sack, and defendant took up some flour and rubbed it over his face. He looked, excited; he bought no flour that day.” The testimony on this branch of the case is conflicting, and in many respects irreconcilably contradictory; and almost every proposition-attempted to be proved by the State has been attempted to-be disproved by the defendant, and the credibility of the witnesses attacked and attempted to be impeached.

In such a state of the evidence, the law makes it the duty of the jury to determine the weight of the testimony and the credibility of the witnesses who have testified before them. On this branch of the investigation, the instructions-given to the jury properly informed them as to their duties and powers under the law, as follows : “ You are the sole and exclusive judges of the credibility of each and all of the witnesses, and the weight to be given to their testimony, and you will give such credit to them, and such weight to-the evidence adduced before you, as in your judgment they should have. When testimony,is offered for the purpose-.of impeaching witnesses, either by attacking their general reputation for truth and veracity, or by seeking to show that they have made statements elsewhere inconsistent or in conflict with those made on the stand, you are still the judges of the credibility of all the witnesses, — of those whose testimony may be thus attacked, and of those w!io are offered to impeach them, — and will, in view of all the-evidence, give to them, and each of theca, such credit, and to their evidence such weight, as in your judgment they should have.” On the subject of the conclusiveness of circumstantial evidence in order to warrant a conviction, the jury were instructed as follows: “If, on consideration of the evidence, there is any reasonable hypothesis consistent with the facts proved to your satisfaction, and inconsistent with the guilt of the defendant, he should be acquitted.”

But it is insisted that a new trial should have been granted on account of important testimony discovered since the trial; and the defendant has filed his own affidavit, and those of Catharine Walker, Caroline Church, and George Lowe supporting it.

Two of the affiants testified on the trial, — one for the State and one for the defendant; the other did not testify. The main features of the testimony were, first, to show ill-feeling on the part of the State’s witness Wyers toward the deceased, and an interest in procuring the conviction of the defendant, and also to contradict the State’s witness Lowe, who identified the defendant as the perpetrator of the deed. We have already seen that it would not be a good defence for the accused to prove threats or ill-will on the part of another towards the deceased. A new trial will not be granted in order to procure testimony to impeach a witness. The affidavits of the persons who are offered in support of the motion do not bring the defendant within the rules of law which authorize the granting of new trials on account of newly discovered testimony, nor show that the supposed new testimony would be likely to change the verdict on another trial. If the proof had shown, or should show, that the defendant had attempted to hire an assassin to take the life of the deceased, and then himself kill the hired assassin, the tendency would be rather to show a more depraved mind and heart than the testimony adduced on the trial. Taking into consideration the facts surrounding this unfortunate transaction, — that the witnesses were, many of them, relatives of the defendant and of each other, and that the parties mostly lived in the same vicinity, and that upon the testimony, under appropriate instructions from the judge, the jury found the appellant guilty, and the court before whom the witnesses testified has refused to set aside the verdict, and because we are unable to say, from an inspection of the whole of the testimony, that it is not sufficient to support the finding of the jury, — we see no error in refusing a new trial, although the testimony is, in some important features, circumstantial.

From a careful examination of the whole case, as disclosed by the record, aud in the light of the able brief of counsel for the appellant, we find no such error in the proceedings as would, in law, authorize a reversal of the judgment, and it is affirmed.

Affirmed.