Hickox v. State

Appellant complains of our holding against his plea, presented for the first time in this court, that the record fails to show how the District Court of Nolan County acquired jurisdiction to try the case upon an indictment which had been returned in Upton County. There being no possible doubt of the jurisdiction of the District Court of Nolan County over the subject matter of this case, and none raised as to the fact or the regularity of a change of venue, and no sort of plea to the jurisdiction of the person of appellant when the case was called for trial in Nolan County, we adhere to our former conclusion that the uniform presumption of regularity would obtain. In addition to said presumption, however, we call attention to what was not mentioned in our former opinion, viz: the fact that in this transcript, over the certificate of the clerk of the District Court to all the matters therein contained, appears a statement that there was a regular transfer of all orders and things had and done in this case from the District Court of Upton County to the District Court of Nolan County, and no objection or exceptions either by the state or the defendant to the jurisdiction of this cause in Nolan County. No contest is here made of the truth of this statement which we suppose to have been made by the clerk of the District Court in lieu of an extended copy of the transcript referred to in Art. 570, 1925 Cow. C. P. (old Art. 635, Vernon's C. C. P.), there being nothing in the rules laid down on page 24, Vol. 142 S.W. Rep., referring to the contents of transcripts on appeal to this court, which would require that the orders, etc., on a change of venue, be incorporated in such transcript on appeal. Such transcript is primarily for the information and satisfaction of the trial court who finds pending on his docket a felony case in which appears no exceptions or complaint of the regularity of the change of venue which brings the case upon his docket. See Cyc. Vol. 12, p. 251. Being so satisfied, and there being no contest over the matter, the trial court would proceed to try the case.

We think the cases cited by appellant in reference to the transfer of misdemeanor cases originating by indictment, not applicable and especially under facts such as appear in the record before us.

It appearing to the satisfaction of the trial court that all matters pertaining to the change of venue were regular, and there being no complaint in the trial court where upon presentation of such complaint any mere irregularity might be considered and remedied if possible, we hold appellant's complaint in this regard without merit. In the Bird case, 91 S.W. Rep. 790, the question of the validity of the transfer of a misdemeanor case was raised first in the trial court. It was made to appear that no order of transfer had been made. We find nothing in the other cases cited by appellant showing how or when the question as to the validity of the order of transfer, or the absence of the order of transfer, was raised.

Appellant renews complaint of the admission of Neville's testimony. It is referred to in our former opinion as bills of exception Nos. 19 and 20. The testimony objected to in bill No. 19 was that of Neville who said that he had a conversation with Schrier (deceased) and right after the conversation he and Schrier went to the west side of the building (referring to the garage building where the killing took place) and got some water from a hydrant. We confess our entire inability to see how this testimony, which would seem but leading up to and showing the location of the parties at the time of the fatal encounter, could be held to impinge on appellant's theory of a killing in defense of himself or Tom Hickox. The theory of self-defense, if any in this case, was in no way affected by the question as to whether Schrier was in one part of the building or another. The testimony complained of in bill of exceptions No. 20 was that of Neville, who stated in substance that while he and deceased were standing by the hydrant mentioned, the hand of deceased being on the shoulder of witness, young Tom Hickox came up, shook hands with witness, and then turned to deceased and said, "What did you beat up my little brother for?" To which deceased replied that he did not beat him up, and Tom said he was a damn liar, he did. That appellant was not present at this time.

The court in approving the bill certifies that he admitted the testimony because it was part of the res gestae; that while deceased and Tom were quarreling, as set out, appellant came in, walked around them, and shook hands with Neville, whereupon deceased spoke to appellant and said, "Mr. Hickox, speak to Tom, I don't want to have any trouble with him." No blows passed between deceased and Tom up to this time, and appellant was present when Tom struck deceased and the physical encounter began. We must again confess our inability to see how the inadmissibility of this testimony can be determined or affected by anything we said in Archer v. State, 263 S.W. Rep. 305, or Wooley v. State, 64 S.W. Rep. 1054. In the latter case Phillips and his wife swore that on the morning of the homicide and prior thereto deceased told them he was going to Griffiths' to look for work, and was going through Wooley's field. Deceased was shot at the edge of Wooley's field. Appellant claimed that he went to the field to shoot a hawk and was there attacked by deceased who was at an unusual and unexpected place, and that he shot deceased in self-defense. Manifestly proof that deceased, unknown to the accused, had told parties that he was going to the unusual and unexpected place on a peaceful and lawful mission when and where appellant claimed he was attacked by deceased and had to defend himself, would likely be appropriated by the jury to the detriment of the defensive theory. So in Archer's case, supra, wherein we held incompetent statements of the deceased prior to the fatal difficulty indicative of a peaceful purpose on his part in going to where the encounter took place, we said:

"An examination of these authorities will reveal that in so far as they here apply they uphold the rule that, if one charged with murder knew or was informed prior to the homicide of the motive, purpose, reason, declarations, or acts of deceased, proof of the same is admissible if it tends to solve any issue in the case; that a defendant can only be bound so far as matters reasonably appeared to him at the time he acted; that proof of deceased's undisclosed reason or motive in being where he was, or in going to the scene of the homicide, or proof as to his real destination, if unknown to defendant at the time he acted, is not admissible against him where it tendsto affect his defensive theory."

The point in said two cases just mentioned, and that in the testimony here being discussed, seems wholly at variance. In both the Wooley and Archer cases, supra, deceased informed other parties, prior to going to the locality where the fatal encounter took place, that he was going upon a peaceful mission and purpose; the facts in testimony as to what occurred thereafter being wholly at variance with the proposition that deceased did go there for a peaceful purpose. We held that these matters of undisclosed purpose on the part of deceased were inadmissible. In the case before us it appears entirely immaterial whether deceased was in one part of the garage or another at the time he was approached by Tom Hickox and the quarrel between the two began. Wherever they were would not affect hurtfully the defensive theory. The fact that they were quarreling when appellant walked in, and that following the appeal made to appellant by deceased to speak to appellant's son, the latter struck deceased, following which appellant shot, as he claimed, in defense of his son, was a part of the transaction and res gestae thereof.

Being unable to agree with any of the contentions made in appellant's motion, same will be overruled.

Overruled.