Giles v. State

On August 1, 1911, by complaint and information filed that date, appellant was charged with slandering a certain married woman by language given in substance in the complaint and information, alleged to have been uttered on July 26, 1911, of having sexual intercourse with a certain man. The appellant was found guilty and fined $100.

The State proved that appellant uttered the slander of the said married woman, substantially as alleged. The State further proved the falsity of the charge by both the man and the woman who were charged with having sexual intercourse. In addition, the State proved by seven or eight witnesses, some men and some women, that they each knew the reputation of said married woman for chastity and virtue and that it was good. The slanderous language, by the State's witness was shown to have been uttered by the appellant in the presence of one of the State's witnesses and two other witnesses who were introduced by appellant. The appellant testified, denying having used the language. While both of the other witnesses testified, neither testified that he did not use the language. However, one of these witnesses of the defendant testified that in December, 1910, he saw the said slandered woman meet Henry Clements in the alley back of her house and they lay down together in the alley. This witness had just been tried for slandering this woman and acquitted. He had testified on that trial. The State introduced three witnesses, who testified that they were present on the trial of that witness and heard him testify therein and that he testified therein that he never saw Henry Clements and said slandered woman together at any time in his life.

One of appellant's witnesses, who was present at the time appellant used the slanderous language, testified that on a night in December, 1910, he and the other witness of appellant, who was present when the appellant uttered the slanderous language, were together and saw the slandered woman come out in her back yard and place a letter under a board under the yard fence about six inches from the closet. As soon as she went back they went and got that letter, and produced and identified it on the stand, this witness swearing that it was for said barber Henry Clements, and that they watched the next night and the said barber went and placed a letter under the same board for said woman and that as soon as he left they went and got that letter, and produced and identified it on the stand. One of these witnesses swore that the night was dark when they saw these two claimed letter transactions. The other witness swore the same, except that he swore that the night they saw these letters placed and procured them was clear and bright, the moon was shining and he could see clearly. The slandered woman, when testifying, was shown the letter which it was claimed she placed under the board and she denied writing it or placing it under the board. On the testimony of these two witnesses, however, both letters were introduced in evidence. The State proved by Murphy, one of its witnesses, that appellant came to him, called him aside and told him that he, the witness, had been subpoenaed, as a witness, and that he, the witness, would have to swear that he saw Norville (who was working for us at the time) have an act of carnal intercourse (with said slandered woman) on the counter while he, the witness, was hiding under the counter and the witness told him he would not do it, as it was not true. While the appellant testified, he did not dispute this witness.

If the slandered woman wrote the letter that appellant's two witnesses claimed they saw her place under said board, which she denied writing, and it was for said Henry Clements, it would have shown that she at some time had had sexual intercourse with said Henry Clements. The letter on its face is not addressed to anyone, nor has it her or any other signature thereto. Neither was the letter, claimed by said two witnesses to have been placed under said board the next night by Henry Clements, addressed to anyone or signed by anyone.

Appellant made a motion to continue the case on account of the absence of said Henry Clements. He states in his application that ever since he had been charged with this offense he had been trying to ascertain the whereabouts of said witness. What efforts he had made and what he had done in this way, are not stated in the application. He further states therein that he never learned the whereabouts of said witness until on Sunday, August 6th, and that he then learned that the witness was in Abilene, Taylor County. He does not show that he made any effort on Sunday to procure any process whatever for this witness. Perhaps it was not necessary to do anything on Sunday. He then states in his application that on Monday August 7th, what time in the day is not stated, he properly applied for a subpoena to Taylor County for said witness, but he does not state that any was ever issued, or that any was ever placed in any officer's hands, or sent to any officer for execution. No subpoena appears in the record, hence, we conclude that no subpoena was ever issued, or placed in any officer's hands for execution. The judgment shows that the case was tried on August 9th and the motion for new trial shows that it was tried on August 9th. It seems, though this is not made certain, that the motion for a continuance was filed and acted upon on August 7th. At any rate, the record shows with reasonable certainty that the case was tried on August 9th. In the application for continuance the appellant states that he expected to prove by Henry Clements that he received several letters from the slandered woman during the year 1910, and that they were placed under a board near the closet in the back yard of said slandered woman; that the letter his witnesses identified as having been placed under said board by him was written by him and placed under said board, and that the statements made in said letter are true, and that said Clements received other letters like the one that his said witnesses claim they saw the slanderous woman place under said board, and that said letter was genuine and written by her and that she had told said witness that she had written that letter. No questions of that kind were asked this woman when she testified on the trial. She was only asked if she had written that letter which was shown to her which she denied writing. The application does not show the distance from Benjamin, the county seat of Knox County where the case was tried, to Abilene in Taylor County, where the witness Clements was claimed to be, nor how long it would take to send process there, have him served and have him attend as a witness. Doubtless he could have been procured readily within two days.

A continuance is properly refused always where there is a want of diligence. O'Neal v. State, 14 Texas Crim. App., 582; Hart v. State, 14 Texas Crim. App., 657; Childers v. State, 16 Texas Crim. App., 524; Hawkins v. State, 17 Texas Crim. App., 593; Timbrook v. State, 18 Texas Crim. App., 1; Barrett v. State, 18 Texas Crim. App., 64; Bond v. State, 20 Texas Crim. App., 421; Moseley v. State, 25 Texas Crim. App., 515; Stegall v. State,32 Tex. Crim. 100; Underwood v. State, 38 Tex. Crim. 193; Henry v. State, 38 Tex.Crim. Rep.. If the application is prematurely made and under circumstances tending to show that by the use of ordinary diligence between the date of the affidavit and the trial the grounds of the application might have been obviated by the appellant, it is unquestionably insufficient. Buntain v. State, 15 Texas Crim. App., 515; Lewis v. State, 15 Texas Crim. App., 647; Stouard v. State, 27 Texas Crim. App., 1; Brown v. State, 32 Tex.Crim. Rep.; Morgan v. State, 44 Tex. 511; Buie v. State, 1 Crim. App., 452; O'Neal v. State, supra; Hughes v. State, 18 Texas Crim. App., 130; Franklin v. State, 34 Tex.Crim. Rep.; Benson v. State, 38 Tex.Crim. Rep.; Holmes v. State,38 Tex. Crim. 370; McGrath v. State, 35 Tex. Crim. 413; Snodgrass v. State, 36 Tex.Crim. Rep.. The mere affirmation of diligence in an affidavit for continuance does not suffice, the facts must be stated. Henderson v. State, 5 Texas Crim. App., 134; Cooper v. State, 7 Texas Crim. App., 194; Murray v. State, 1 Texas Crim. App., 174; Cantu v. State, 1 Texas Crim. App., 402; Murry v. State, 1 Texas Crim. App., 417; Buie v. State, supra. The mere affirmation of diligence is insufficient. All the facts must be stated from which the court has to make the legal deduction of diligence. Cocker v. State, 31 Tex. 498; Henry v. State, 38 Texas Crim. App., 306.

The announcements of the several legal propositions just above stated and the authorities establishing them are correct and are taken by us from section 600, page 393, White's Annotated Code Criminal Procedure.

A consideration of the whole testimony shows to our satisfaction that even if the absent witness had been present, he would not have testified as appellant stated he expected him to, and if he had, that his testimony would probably not have been true. The court did not err in overruling the motion for continuance.

By another bill appellant complains that because the court would not permit him to ask one of the jurors, Henderson, who stated that he knew one of the State's principal witnesses and that he had known him a number of years, and they were warm personal friends, and who had stated that he did not know the defendant or his two principal witnesses. "If there was a conflict between the testimony of his warm personal friend and the testimony of some of the witnesses he did not know, would he believe the testimony of that witness in preference to other witnesses," claiming that the juror in answer to such question would have stated that he would believe the testimony of his friend in preference to witnesses he did not know; that thereupon appellant was compelled to peremptorily challenge this juror, and having exhausted his challenges, he was thereafter compelled to take as a juror another who was objectionable to appellant, and whom he would have challenged had it not been that he was compelled to use the challenge on the said juror Henderson. The court in approving this bill did so with this qualification, that the juror Henderson further stated that the fact that he was a friend of one of the State's witnesses would not prevent him from giving a fair and impartial trial. It will be seen by this bill that the appellant in no way shows that the juror, whom he was afterwards compelled to take, was in any way disqualified as a juror or was not fair and impartial or that he was injured by having to take him. He states he was only objectionable without stating how or in what way he was objectionable. This bill does not show that the court committed reversible error.

The record shows that the appellant took no bills of exceptions whatever to the charge of the court or any part thereof on the trial of the case. For the first time in the motion for new trial he makes several complaints of the charge of the court.

He requested some ten special charges which are shown to have been refused by the court. In neither of these charges does he state any reason why either or any of them should have been given. In his motion for new trial, as one separate paragragh thereof, of why a new trial should be granted, he says: "Because the court erred in refusing to instruct the jury, as requested by the defendant in his special charge No. _____ on file herein," filling each blank with the number of the change from one to eleven consecutively. Under the well established law of this State such complaints of refused charges could not be considered by this court even in a felony case, much less a misdemeanor, as this is. Berg v. State, 64 Tex. Crim. 612, 142 S.W. Rep., 884, and Ryan v. State, 64 Tex. Crim. 628, 142 S.W. Rep., 878, and authorities therein cited.

Again, it is the well established law of this State that, in misdemeanor cases, the only way this court is authorized to consider complaints of the charge of the court and the refusal of special charges requested, is by bill of exceptions taken at the time to the charge of the court in the matters attempted to be complained of and to the refusal of the court to give the special charges requested, giving in the bill therefore the specific reasons why the court erred in giving the charge complained of or as the case may be, in refusing the requested charge. Articles 717, 719, 723 Code Criminal Procedure (old); Hobbs v. State, 7 Texas Crim. App., 118; Campbell v. State, 3 Texas Crim. App., 33; Goode v. State, 2 Texas Crim. App., 520; Dunbar v. State,34 Tex. Crim. 596; Downey v. State, 33 Tex.Crim. Rep.; Cole v. State, 28 Texas Crim. App., 536; Loyd v. State, 19 Texas Crim. App., 322; Lucio v. State, 35 Tex.Crim. Rep.; Martin v. State, 32 Tex.Crim. Rep.; Wright v. State,60 Tex. Crim. 386; Jenkins v. State, 60 Tex.Crim. Rep.; Basquez v. State, 56 Tex.Crim. Rep.. It is unnecessary to cite other cases.

The evidence, if believed, is clearly sufficient to sustain the verdict. There being no reversible error, the judgment will be affirmed.

Affirmed.

ON REHEARING. June 5, 1912.