Morris v. State

Appellant was indicted and convicted of murder in the first degree, his punishment being assessed by the jury at death.

In the first bill of exceptions appellant complains that the court erred in not granting his application for continuance. The application is based upon the absence of thirteen witnesses. All of these appeared and testified, according to the certificate of the judge, except the witnesses J.M. Evans and Mrs. G.W. Leonard. As to the witnesses Evans and Leonard, the application discloses that one resided in Milwaukee, Wis., and the other in the State of Colorado. The record does not show that appellant made any effort to take the deposition of the witness Leonard, nor is there any evidence that she would probably be within the jurisdiction of the court at the ensuing term. There is no showing whatever as to the witness Evans. However, appellant offers as an excuse why he did not seek the depositions of Evans that he did not know at that time his residence was in the State of Colorado. The application does not allege what appellant expected to prove by the witness, and hence in this respect is defective. By the witness Mrs. Leonard the application shows defendant expected to prove that while she was searching a box belonging to Mrs. Patrick she found a sheet covered with blood, and also the imprint of an ax, made by blood on said sheet. The application does not show the pertinency of this testimony, nor does it show that appellant had any connection with the bloody sheet, or that anyone else had. We do not think the testimony is at all material, and, in our opinion, the court properly overruled the application for continuance.

Appellant complains the court erred in not entertaining his motion for change of venue. The court qualifies the bill as follows: "When the case was regularly reached and called for trial, the State announced ready. Defendant consumed considerable time in preparing and presenting his motion for continuance. This being overruled, the court proceeded to impanel the jury. Upon the impanelment forty-eight persons were examined, out of which not more than six were excused on account of any character of disqualification. That the jury was obtained from the remainder of the panel, appellant not having exhausted his challenges. That the jury was impaneled, and defendant had pleaded to the indictment, when for the first time the motion for change of venue was presented." We do not think the court erred in refusing to consider the application for change of venue after the organization of the jury and appellant's plea to the merits. Carr v. State, 19 Texas Crim. App., 635; Sims v. State, 36 Tex. Crim. 154; White's Ann. Code Crim. Proc., art. 617. However, appellant insists his application for change of venue should have been considered, because it was on file prior to the announcement of ready, and the court should have taken judicial cognizance of it. We do not agree with this contention. Pleas must be introduced by appellant or his counsel in the due order of pleading, and after the announcement of "ready" and jeopardy accruing he could not be heard then to plead to the venue.

Appellant complains the court erred in permitting State's counsel in argument to refer to what had become of two hats belonging to deceased. This evidence had been theretofore excluded upon objection by appellant. The court immediately informed counsel the evidence had been ruled out, and ought not to be commented upon. Appellant's contention is that the court should have severely reprimanded counsel. We think the action of the court eliminated any harm that could have occurred by virtue of the argument of counsel. Furthermore, appellant did not tender a special charge to the court instructing the jury to disregard the argument. For a discussion of this question, see Pearl v. State, ante, page 189.

By bills numbers 4 and 5 appellant complains that the court erred in permitting the State to introduce the evidence of J.B. Diffey and Claud Witherspoon, taken upon the examining trial, where their evidence was reduced to writing. The objection was that they did not swear to the same after the evidence had been reduced to writing; and, further, it was not confronting defendant with the witnesses against him, as required by the Constitution. The qualification of the trial court to the bills, and in fact the bills themselves, show that appellant requested the court to postpone the case until he could obtain certain witnesses; that the State then, in open court, agreed with appellant's counsel, if he would permit the State to introduce at the examining trial evidence of the two witnesses objected to, defendant could have the use of the testimony of the other witnesses whose absence was complained of. This agreement was made by appellant's counsel in open court, and in the presence of defendant. Subsequently, the written testimony of the witnesses having been admitted without objection at the time, and after the trial, and appellant had forfeited his life, for the first time in motion for new trial he complains, and presents the bills of exception. We know of no rule in this court authorizing us to review the admission of testimony, where no bill was reserved to its admission at the time same was introduced. It matters not whether the agreement made by appellant for its introduction was valid or invalid; for, if appellant should insist the testimony is inadmissible, such insistence must be made at the time of its introduction; otherwise he can not be heard to complain, and ask the reversal of the case on account of his own laches.

Bill number 7 complains that the court erred in hearing argument upon motion for new trial in the absence of defendant. The bill shows appellant's counsel presented the motion for new trial during defendant's absence, but at that time no objection was made on that account. This occurred on May 28; and on May 31st appellant presented for approval a bill of exceptions complaining that the court erred in permitting counsel to argue the motion in his absence. The qualification of the judge shows there was no suggestion of the desire on defendant's part to be present when the motion was heard and counsel argued the same; that the court entered no order upon the motion at that time, and the same was pending on the 31st day of May. The judgment of the court shows appellant was present by counsel and in person at the time said motion and argument thereon was heard and the motion overruled, and, no bill of exceptions showing the contrary, the judgment will control. We do not think there was any error in this matter of which appellant can complain. Gonzales v. State, 38 Tex.Crim. Rep..

He complains because the court failed to charge the law of robbery as a motive to the crime. This omission could not hurt appellant; for had it been given it would have been against his interests, and certainly is a matter of which he can not complain. The evidence does not raise the issue of alibi.

In many respects this case is similar to Pearl v. State, ante, page 189. The evidence established by the most cogent circumstances the guilt of appellant, and points with unerring precision to the fact that appellant alone committed the offense in order to get possession of deceased's property. A part of said property was found in his possession after the crime. The jury have inflicted upon appellant the death penalty, which is fully sustained and justified by the evidence.

No reversible error appearing in the record, the judgment is in all things affirmed.

Affirmed.

[Note. — Appellant's motion for rehearing was overruled without a written opinion. — Reporter.]