Clay, Jr. v. State

Appellant was convicted of murder, the jury awarding him thirty years confinement in the penitentiary.

This is the second appeal, the former appeal being reported in 78 Tex.Crim. Rep., 180 S.W. Rep., 277. The facts are not materially different from those on the former appeal, and it is thought unnecessary to make a statement of the evidence.

When the case was called for trial appellant moved for a continuance. The court stated to him he would allow him fifteen or twenty minutes in which to prepare the application. Appellant demurred to this, and finally counsel were permitted to go to their office with a view of preparing the application. After being gone from fifteen to thirty minutes they returned to the courtroom and dictated the application to the court stenographer. The court states in the bill prepared by counsel that when the fifteen or twenty minutes offered counsel in which to prepare and present the application were declined by counsel, he informed counsel that they might state it orally and then reduce it to writing. This was declined, and the court then tendered counsel the court stenographer to whom he might dictate the application. This was declined, and counsel went away to his office to prepare the application. After being absent a while he returned and finally dictated in the courtroom an application for a continuance. The court qualifying appellant's bill states that this took about an hour and thirty minutes. To this qualification to the bill of exceptions prepared by appellant's counsel objection was urged, and the court requested to write out a bill, which he did. Appellant objects to all this, and says he has not been treated fairly in the preparation and presentation of this matter. When he excepted to the qualification of his bill as stated and requested the bill finally prepared by the court, it was incumbent upon him, if he did not like the bill prepared by the court, to interpose his objection and prepare one and prove it up by by-standers. The court states that his bill was prepared at the request of counsel, and it so shows in the record, and having accepted the matter in the situation it is placed in the record, appellant is in no condition to complain. He had his remedy if he did not like his treatment by the court in preparing a bill setting out the matter as he desired it set out and as he believed justified by the facts, and proved up by by-standers, showing his view of the situation at the time. We find no reversible error in this matter.

Another bill presents an application for continuance on account of the absence of two witnesses stated to be eyewitnesses to the homicide who had removed from San Augustine to Milam County. The other two witnesses were citizens of San Augustine County. This killing occurred on June 19, 1915. This process was not issued until January, 1917, a few days prior to the trial. This process, it seems, was not returned. There is an utter want of diligence in the issuance of process. Counsel for appellant states that they had just been appointed, were young men, and had not familiarized themselves fully with the case, and that prior to their appointment as counsel appellant had been defended by other attorneys, and it may be inferred from the record that they were no longer connected with the case. If process had been issued prior to this time and the witnesses had attended or not attended, as the case may be, these matters should have been shown. But the question of diligence is one of importance in this case, especially in view of the fact that practically all of the absent testimony would be but cumulative of that given on the trial. It may be stated, however, this does not appear to be a first but a subsequent application.

Appellant reserved exception to the introduction of evidence going to show that a few moments before the homicide there was a difficulty between deceased and Clyde Roberts, and that deceased slapped Roberts and Roberts struck deceased, causing him pain and bloodshed. Deceased, Perkins, applied to an officer who was on the ground for protection against Roberts, or for the arrest of Roberts, and the officer did arrest and take Roberts from the ground. When this happened the State's theory was that appellant became enraged about it and made threats to kill deceased because he "turned in" Roberts to the officer. All of the parties named except the officer were negroes, and it was the 19th of June celebration. In connection with appellant's outraged feelings at the conduct of deceased in having Roberts arrested, he went to where deceased was and trouble ensued between them, and appellant, under some of the testimony, exhibited a pistol, and parties then took appellant away a few steps and in pulling him or carrying him away he lost his hat. He went back to get his hat, or at least returned to the place where he had had the difficulty with deceased, and the shooting occurred. The State's evidence goes to show he went back for the purpose of shooting and did shoot deceased just as soon as he returned to the place where deceased had a refreshment stand. Appellant's theory was that he went back for the purpose of getting his hat and that deceased reached for and obtained a shotgun which was at the refreshment stand, and he then shot. Appellant's contention is that the court was in error in permitting evidence of the trouble between deceased and Clyde Roberts. We can not agree with this contention. If appellant became outraged on account of the fact that deceased, who was a negro, had a white officer to arrest another negro at their celebration, and made this a personal matter with the deceased, the trouble between deceased and Roberts formed a predicate for appellant's subsequent action, and, of course, became relevant and material to understand the reasons and motive of appellant in doing what he did. There was no error on the part of the court admitting this testimony. Nor was there any error in refusing special requested instructions withdrawing this testimony from the jury.

Finding no reversible error in the record the judgment is affirmed.

Affirmed.

ON REHEARING. June 13, 1917.