Morris v. State

LATTIMORE, Judge.

— Appellant Appellant was convicted in the District Court of Victoria County of murder, and his punishment fixed at death.

Without dispute in the record it is made to appear that on the date alleged in the indictment appellant shot and killed Oliver Marshall with a shotgun. The shooting took place in the late afternoon and seems to have been witnessed by no one. Physicians who examined the body of deceased said from the number of shot entering close together, the shot must have been fired at close range. The only defense was that of insanity and much evidence was heard pro and con on this issue.

Appellant asked for a continuance to obtain the testimony of several men who had been confined in jail with him subsequent to the date of the alleged homicide. The application stated that subpoena was issued for these witnesses on the 29th day of November 1922. Counsel had been appointed to defend appellant a number of days prior to this time. The application does not state the length of time the absent witnesses had been in jail with appellant. Same sets out the facts which would be given in testimony by the absent witnesses and upon which it is stated they would base their opinion that appellant was of unsound mind. The absent witnesses were not served with process. In the qualification of the learned trial judge to the bill of exceptions based on the refusal of the continuance, it is stated that diligent inquiry was made by him of the officers having said process and that they stated they could not find or hear of the witnesses in the county. It is not shown whether said absent witnesses had been discharged from jail, or whether they had been convicted for some felony, or whether they were fugitives from justice. The affidavits of none of them are appended to the motion for new trial. We seriously doubt the diligence shown and are not inclined to think the testimony expected from them of that materiality which would justify us in concluding that the trial court abused his discretion in refusing the motion for new trial based on the overruling of the application for continuance. We observe from the record that six witnesses who were in jail with appellant were introduced as witnesses on his behalf on the question of his mental unsoundness, as well as a number of other witnesses.

Appellant’s bills of exception Nos. 2 to 15 complain of various rulings of the trial court in the admission and rejection of testimony claimed to affect the issue of insanity. We have carefully reviewed each of these bills of exception and are of opinion that they present no error. The questions raised would be of no benefit if set out at length here and would furnish no aid to the profession and present no new ruling as far as we are able to perceive. The preservation of the various grounds of error contained in these bills of exception reflect the. careful and commendable effort on the part of learned counsel appointed to represent the appellant.

Bill of exceptions No. 16 presents no further fact than that a witness for the State was permitted to testify that he knew certain doctors and that they were connected with the Insane Asylum at San Antonio. The matters contained in said bill of exceptions going no further than this, seem to present no error. Nor are we able to perceive injury in the contents of bill of exceptions No. 17 which complains of the refusal of the trial court to allow a witness for the defense to testify that a doctor from San Antonio had stated to the witness that he did not know that he was summoned for the defendant, but thought he was summoned for the State.

■ Appellant sought to have given a special charge on monomania but we find no evidence calling for the giving of such charge. In our opinion the charge of the trial court was particularly full and fair in presenting the law applicable to every phase of the issue of insanity.

That an attorney who was a witness upon the hearing of the motion for new trial was excused from the rule would seem to be no violation of the discretion of the trial court.

The court heard the evidence offered in support of appellant’s motion for new trial and concluded that same did not justify the granting of such motion. It was claimed that evidence that the parents of appellant were of weak minds or of unsound minds, was newly discovered. The brothers and sisters of appellant were witnesses in his behalf and must of necessity have been cognizant of the facts set up in the affidavits appended to the motion for new trial. We further observe that said affidavits were taken by appellant’s attorney which is contrary to the rule announced by many decisions of this court.

The extreme penalty inflicted by the jury in this case has caused us to give it careful consideration. Deceased had bought the land on which appellant’s family were tenants and thereafter feeling bad grown up in their minds against deceased. Appellant made a written confession of his guilt in this case, setting out in detail some of the causes upon which he based his dislike of deceased. There seems practically no reason for the killing except an evil and cruel disposition. The only possible defense would seem to be the one which was interposed by appellant’s counsel. A number of witnesses testified in support of the defense of insanity, and also a number of persons who had known appellant for many years, some of- them all his life and some for a shorter time, testified that in their opinion he was of sound mind. As stated above, the learned trial judge very fully and fairly submitted this issue and the jury have determined it against appellant.

Finding no error in the record, the judgment will be affirmed.

Affirmed.