Mitchell v. State

This case was affirmed at a former day of this term, and is before us on appellant's motion for rehearing. It is urged in said motion that the application for continuance, made when the case was called for trial, should have been granted, because of the absence of Mrs. Alma Williams. Again examining the record in reference thereto, we find that said application contains no showing of any diligence whatever to secure the presence of said witness. The instant trial began January 26, 1920. The indictment shows to have been returned September 4, 1918, a year and a half before this trial. No subpœnas are attached to the motion, or appear in the record, and the only statement in said application as to diligence, is that "said witnesses had been duly subpœnæd." It is not stated that she was in attendance upon court at any time, nor that she had ever before disobeyed process, nor when the subpœna was issued. It is the plain duty of one asking for a continuance to place in the application such allegations, or make such showing, as that the trial court and this court may know what diligence has been used. Massie v. State, 30 Texas Crim. App., 64; Isham v. State, S.W. Rep., 594; King v. State, 30 Texas Crim. App., 64; Isham v. State, 49 S.W. Rep., 594; King v. State, 67 Tex.Crim. Rep., 148 S.W. Rep., 325.

Appellant states in his motion, that said application was the first one, but no such statement anywhere appears in the record. On the contrary, the bill of exceptions reserved to the action of the trial court in overruling this application, states that it was a second application. This Court has held that in the absence of some affirmative showing that the application for continuance is the first one, it will be presumed to be a subsequent application. Branch's Ann. P.C., Vol. 1, Sec. 313.

Error was also urged originally upon the ground that the trial court should not have permitted the State to put on one of appellant's counsel as a witness, and to prove by him that the carbon copy, which Miss Dierlam, the official court reporter had identified as a true statement of the testimony of the deceased witness, Mrs. Jordan, was a true copy of the statement of facts as agreed to by both parties and approved by the court upon the former trial. Neither as originally presented, nor in this motion, are we cited to any authority upholding this contention. The fact that the witness was an attorney of the accused was not a valid objection. Section 345, Branch's Penal Code, Vol. 1. Miss Dierlam, the official court reporter, had earlier testified that she took down the testimony of the deceased witness upon a former trial, in shorthand; that she had searched for her original notes, but that they were lost; that she made a careful and accurate transcription of said notes of the former trial, and that the copy showed her, which was the same one shown the witness Jackson, attorney for appellant, was an exact carbon copy of such transcript, and she stated, after having read the statement, that the matter refreshed her memory, and that also by referring to her independent recollection, she was able to state that the same contained a true statement of the deceased witness. In this condition of the record, we do not think it error to permit the witness, Miss Dierlam, and the witness Jackson, to testify that the copy identified was a true copy of the statement of facts, in so far as the testimony of Mrs. Jordan went. The original stenographic record was lost. If it had been in existence, Miss Dierlam's statement of its contents would have been uncontrovertible. If the copy did not speak the truth, appellant had every opportunity and right to assail same. No error appears in overruling this objection.

We have reviewed the facts of the case, and adhere to our former ruling that the rejection of the testimony of the witness Walts was harmless error.

It is further insisted that the evidence was not sufficient to support the verdict, because of the lack of testimony showing that the breast-yoke with which appellant struck the fatal blow, was a deadly weapon, or such weapon as was reasonably calculated to produce death; and further, that the weight of said breast-yoke was not shown. The court duly defined to the jury a deadly weapon, and required them to believe that it was such a weapon, and that from its character or the manner of its use, etc., by appellant, it was reasonably calculated to inflict death, and no exception to this charge appears in the record. In this same connection, and as a part of said definition, the court specifically told the jury that if the instrument used was one not likely to cause death, it would not be presumed that death was intended. The breast-yoke was that of an ordinary farm wagon. Appellant admitted that he struck deceased one blow on the head with same, further admitting that he may have used both hands. The blow was such as to render deceased unconscious, and he never at any time recovered consciousness before his death the day following. The physician said this blow caused the death of deceased; that it was a tolerably large wound, and cut through the flesh and muscles to the bone, and it seemed to him to make a dent on the skull. No requested charge on the character of the weapon was asked, or can be found in the record. Our Statute, Art. 1082, Branch's Ann. P.C. states that if the death of deceased unquestionably resulted from the injury inflicted by the accused, the case is one of homicide. The trial court submitted both grades of homicide in a manner apparently satisfactory to the accused. With this charge before them, and probably remembering that the State's testimony showed that at the time appellant struck the deceased, the wife of the latter had hold of his hands, and was pulling him away from where appellant was, the jury declined to believe, or find him guilty of any lower grade of homicide than murder. The question, what is a deadly weapon, is one of fact for the jury, under appropriate instructions of the court, and unless it affirmatively appear that there was no evidence supporting their finding, or that such finding is against the weight of the testimony, we will uphold the action of the trial court in refusing a new trial based on the insufficiency of the testimony.

The motion for rehearing will be overruled.

Overruled.