Caldwell v. State

Willson, Judge.

1. We think no error was committed in any ruling of the court in admitting testimony objected to by the defendant. The paper found on the premises of the deceased was proved to be in defendant’s handwiting by expert testimony. The orders used as standards of comparison were sufficiently established as writings made by the defendant. The book was found in defendant’s house, and it was proved that the same belonged to and was used by him to write in, and that the writing found on deceased's premises was upon a leaf taken from said book. Without discussing in detail the several assignments of error relating to the admission of evidence, we will merely say that, in our opinion, no illegal testimony was admitted against the defendant. That he was the author of the writing found on the premises of the deceased was, we think, legally and satisfactorily established. Code Crim. Proc., art. 754; Heacock v. The State, 13 Texas Ct. App., 97; Walker v. The State, 14 Texas Ct. App., 609; Haynie v. The State, 2 Texas Ct. App., 168; Long v. The State, 10 Texas Ct. App., 186; Speiden v. The State, 3 Texas Ct. App., 156.

2. It was uot error to refuse to permit the defendant to reproduce the testimony of Dr. Mayfield given on a former trial of the cause. Dr. May-field was living, was a resident of this State, and had been attached as a witness in the cause. If defendant was surprised by the testimony of Dr. Dillard, and desired to contradict it by the testimony of Dr. Mayfield, who was not in attendance upon the trial, he should have applied for a continuance or postponement of the cause. He certainly, under the circumstances shown, could not be allowed to reproduce the testimony of said witness.

3. It is shown by the evidence most conclusively that the homicide was murder in the first degree. It was a deliberate assassination. The issue of murder in the second degree is not raised by the evidence, and the court properly declined to submit the law of murder in the second degree to the jury. Blocker v. The State, 27 Texas Ct. App., 16.

4. We see no error in the charge upon the issue of alibi. It is sufficient and correct under numerous decisions of this court. Gallaher v. The State, ante, 247.

5. Counsel for defendant have earnestly and ably insisted on this appeal that the evidence is insufficient to sustain the conviction. We are constrained to hold the evidence sufficient. While it is circumstantial, it is, to our minds, most cogent and convincing, and fills the measure of the law. It shows that defendant had a motive to kill the deceased. Deceased was a material witness for the State in a theft prosecution then pending against defendant. A short time before the murder the defendant stated that deceased would not appear as a witness in said prosecution.

At the place of the murder, and about where the murderer stood when he fired the fatal shot, a threatening writing was found tacked to the fence. This writing was not there a short time prior to the murder, but was found there on the same night of and after the murder. It was shown to be the handwriting of the defendant, and the paper was a leaf taken from a blank book owned by the defendant and found in his house on the next morning after the murder. Tracks of two persons were trailed from the place of the murder, and these tracks went in the direction of defendant's house. The tracks of one were identified as the tracks of defendant’s brother, who lived at defendant’s house, and the other tracks corresponded with defendant’s feet. At defendant’s house a gun was found which had the appearance of having been recently discharged; also, shot were found in said house similar to those found in the body of deceased; also paper was found in said house similar to wadding found at the place of the murder, which had been discharged from the gun used by the murderer in committing the crime. It was further proved by those who arrested the defendant that he attempted to evade arrest by concealing himself.

We have recited the main inculpatory facts, and we think they establish the guilt of the defendant beyond reasonable doubt, and to the exclusion of any reasonable hypothesis save that of his guilt.

The judgment is affirmed.

Affirmed.

Hurt, J., absent.