Luttrell v. State

Appellant was convicted of murder in the first degree, and his punishment assessed at confinement in the penitentiary for life, and he appeals.

The case was filed in the Dallas branch of this court on October 1, 1897, and was submitted on the 20th of April, 1898, at the Austin term. The record is written with a pen, and contains 436 pages; 215 pages thereof being the statement of facts. This record should have been condensed into not exceeding 200 pages; 50 pages of which would have been sufficient for the statement of facts, showing every essential feature of the case to be passed on by this court. We consider it a just subject of criticism that this court has, by this method of practice, been compelled to go through much unnecessary matter, consuming time that should have been devoted to other subjects. It serves but very little purpose in making a statement of facts to embody every word and sentence each witness may have uttered on the stand. All that we desire is a proper presentation in the statement of facts of the salient features of the case; and where witnesses agree on any given point, it would be a very easy matter to state what one witness testified on the question, and then state that others, naming them, sgree with such witness. If a fact is not traversed, or is conceded, such should be stated; and where witnesses testify on immaterial points, not important to be considered in any bill of exceptions or charge of the court, such might be well omitted. Of course, this does not apply to cases in which it is insisted that the evidence does not support the verdict. In al such cases the record should be full. We make these remarks because the record is unnecessarily large and unwieldy. But these observations apply equally in many cases that come to this court, and we may be compelled in self-defense, when such records come up, to adopt a rule requiring the parties to restate and condense the record.

On a night in September, 1893, one Ed Doggett (a young blacksmith, about 20 years of age), on his way from the business part of the city of Greenville to his home, a short distance from the square, was shot and killed on one of the public streets of said city, the slayers evidently being concealed in a lumber yard fronting on Stonewall Street. At the January term, 1894, the grand jury of Hunt County returned an indictment against defendant and one John English for the murder. The venue in the case was subsequently changed to Collin County on the ground of the existence of prejudice against appellant in Hunt County. The case pended there for several terms of court, and was eventually dismissed on the part of the State, because of its inability to procure testimony to secure the conviction of appellant. Subsequent to this the State discovered other testimony, and the parties were again indicted in Hunt County on January 30, 1897. At the following July term the case was called for trial. A trial was had, which resulted in the conviction of appellant. On the trial the state offered the positive testimony of an eyewitness to the homicide, and this evidence was strongly reinforced by circumstances testified to by other witnesses. The motive assigned by the State for the homicide was to the effect that appellant and John English, a short time prior to the killing, attempted to rob the First National Bank of Greenville, and that deceased was either cognizant of same, or had knowledge of some fact in connection therewith that would lead to the identity of Luttrell and English as the guilty parties; and that on said account appellant and his codefendant conspired together, and in pursuance thereof shot and killed deceased. Defendant entered a plea of not guilty, and relied on the weakness of the State's case, and also on the plea of alibi. On the trial, appellant filed a motion to change the venue of the case on the ground of prejudice against him, and on the ground that there was a secret formidable combination against him; and in this connection he also insisted that, the court having formerly changed the venue on a previous indictment to Collin County, the question of a change of venue was res adjudicata, and that it was the duty of the court to recognize this, and change the venue of the case. With reference to the latter proposition we have this to say: That the former change of venue, made in 1894, of an indictment and case then pending against appellant in Hunt County, on the ground of prejudice then existing against him, could not be an adjudication of the question on the new indictment for the same transaction (the old one having been dismissed), presented in the District Court of Hunt County in 1897, three years later. It was a new indictment, presented long subsequent to the change in the former case, and under new conditions. The court in such case might take cognizance of the former change, and it might afford some evidence of the existence of prejudice formerly; but it could not be considered res adjudicata as to the overruling the application on this ground. The State controverted the appellant's motion for a change of venue on the ground of prejudice and formidable combination, and in connection therewith the court explained that the parties at a former term of the court (defendant being present) had agreed that the court would authorize a continuance of the cause at that term if they would not make motion for a change of venue at the succeeding term of the court. This was claimed to be an estoppel on the appellant, but we can not so consider it. On the motion the court heard testimony pro and con, and we are not prepared to say that the court abused its discretion in refusing to change the venue.

Appellant made a motion for the continuance of said cause. Clearly appellant was lacking in diligence, and on this ground the court was justitfied in overruling the motion.

Appellant objected to the testimony of the witness Jack Williams to the effect that Neal Fitts sent for him one night to help catch a horse out on the prairie, and that Will Fitts and a negro told him that a couple of men had ridden up to the lot, and put guns in their faces, and asked where he (witness) was. This testimony was hearsay, and its relevancy was not shown. We do not think it was admissible. The State was permitted to show by Jack Williams (who was an important witness in matters pertinent to the homicide and the connection of appellant therewith) that P.C. Arnold, an attorney for defendant, attempted to bribe him (witness) to leave the country. Defendant objected to this testimony — First, because it was hearsay; and, second, because it was calculated to unduly prejudice the action of the jury against defendant. These objection were overruled, and the court, in approving the bill, states that it was shown that Arnold was at the time Luttrell's attorney, and was acting as such in the transaction. If appellant was shown to have been connected with or had authorized the action of Arnold, said testimony would not only have been admissible, but would have been very damaging to appellant. But aside from the fact that he was the attorney of appellant, there is absolutely no testimony tending to show that he was authorized by appellant to bribe, or offer to bribe, said witness to leave; and we apprehend that it will not be seriously contended that authority to bribe a witness comes within the scope of an attorney's employment to assist in the defense of the case. In the absence of some testimony or statement in the bill of exceptions showing some authority on the part of defendant's counsel to bribe a witness, it can not be presumed that such authority was given. However beneficial the absence of a witness may be to a defendant in any given case, in the absence of some proof of authority, any attempt on the part of counsel to get ride of a witness must be attributed as of his own motion; yet it can not be gainsaid that such testimony coming before a jury must necessarily be fraught with injury to appellant on trial. In the absence of proof of authority, the jury would nevertheless be apt to believe that the lawyer did not act on his own responsibility, but that there must have been some suggestion from the defendant, and so, without proof, visit upon defendant the sin of his counsel. This is not a new question in this court, but it has always been held that, before testimony of this character is admissible in any case, there must be proof of some connection or of some authority conferred by defendant; otherwise, the testimony as to such defendant is purely hearsay. Favors v. State, 20 Texas Crim. App., 156; Barbee v. State, 23 Texas Crim. App., 199; Nalley v. State, 28 Texas Crim. App., 387. The State introduced evidence to show that the State's witness Melton had a good reputation for truth in the community in which he lived. This was objected to by defendant on the ground that no attempt had been made by defendant to impeach said witness. The court, however, certifies that said testimony was offered after defendant had tried to impeach Melton, not only by contradicting his evidence, but by introducing in evidence proof that he had been charged to be, and was in fact, guilty of theft, etc. It seems permissible to sustain a witness who has been assaulted by proof showing that he has been in jail, or been charged with other criminal offenses, by evidence supporting the general reputation for truth of such witness. Farmer v. State, 35 Tex. Crim. 270; Whart. on Ev., sec. 491. There was no error in the action, of the court permitting the witness Barker to refresh his recollection by the testimony taken down by him in the grand jury room. There was no error in the court permitting the introduction of the State's witness J.W. McGinnis when admitted, not permitting his testimony as to conversation with defendant. It was not necessary to lay a predicate, as for the impeachment of defendant as to these matters. It was original evidence against him. We do not believe it was permissible to allow the State to prove by the witness J.W. McGinnis that the city marshal of Greenville, W.R. Velvin, had arrested him on the previous day. No connection whatever is shown between witness' arrest and any issue presented in the case against appellant. But, inasmuch as here was testimony tending to show that Velvin was a friend of defendant, it was calculated to suggest that the arrest of McGinnis, whose testimony was material, and appears to have been recently discovered, was instigated by some animus on the part, of Velvin against him because he was a witness against defendant.

In all, twenty-nine bills of exception, were reserved, but we have discussed all that we regard as material as involving questions likely to occur on another trial. We would here, however, suggest that a number of bills are taken to the argument of the district attorney. Some of the language attributed to him appears to be outside of the record, and of a character calculated to inflame the minds of the jury unduly. It is suggested, also, in some of the bills, that during the time those remarks were being made the court was off the bench (perhaps in an adjoining room), and separated by the crowd from the jury and counsel. The court, however, does not appear to agree to this latter suggestion. Of course, we take it that in the proper administration of law the judge ought to be and is present during the entire trial. As to the remarks of counsel, we are not prepared to say that we would reverse the case on that ground. As stated, however, some of the remarks were of an intemperate character, and should have been promptly restrained by the court. On another trial we take it that such conduct will be avoided. On account of the admission by the court of the illegal testimony before discussed, the judgment is reversed, and the cause remanded.

Reversed and remanded.