Adams v. State , 19 Tex. Ct. App. 250 ( 1885 )

Willson, Judge.

About 2 o’clock A. M., March 10, 1885, in the town of Eagle Pass, -Maverick county, the defendant, with a pistol, shot and killed a woman named Josefa Galindo. He was immediately arrested and confined in jail. On June 1,1885, the grand jury returned into court an indictment charging him with the murder. On June 5, 1885, the cause was called for trial, when the defendant presented an application for a continuance, alleging the absence of testimony material to his defense, which application being overruled by the court, the trial was proceeded with and resulted in the conviction of the defendant of murder in the first degree, and the assessment of the death penalty.

It is assigned and earnestly insisted upon by defendant’s counsel that the court erred in refusing the defendant’s application for a continuance. This action of the court is properly presented in the record by bill of exception, and demands consideration. It is shown by the application that on the 2d day of June, 1885, the day after the indictment was returned into court, the defendant by his counsel filed with the clerk of the court interrogatories and notice for the purpose of obtaining the depositions of four witnesses alleged to reside in the State of Coahuila, in the United States of Mexico. On the 3d day of June, 1885, the State by its attorneys waived service of notice and interrogatories, and also time, and on the next day filed cross-interrogatories, and on the same day the clerk issued a commission to take said depositions, and delivered it to defendant’s attorney, who immediately proceeded with it to Piedras Negras in Mexico, near to which place said witnesses resided, and placed the same in the hands of B. Pridgen, the consul of the United States at that place, and paid said consul the fees for taking said depositions, and said consul promised forthwith to take and return the same, but the same had not been taken and returned when the case was called for trial.

On the 3d day of June, 1885, the next day after filing said interrogatories and notice, defendant’s counsel made and filed with the clerk an affidavit stating that the testimony of said witnesses was material to the defendant; but said affidavit did not set forth the facts necessary to constitute a good reason for taking the depositions of said witnesses, nor did it state that defendant had no other witness, whose attendance on the trial could be procured, by whom he could prove the facts he desired to establish by the depositions. The application for continuance was controverted as to diligence by the State in due form, the grounds of the traverse being that the affidavit above mentioned was defective, and that the commission to take depositions had been delivered to an officer who was not lawfully authorized to execute the same. No objection was made to the sufficiency of the application in other respects, and in such other respects we think it is in strict compliance with the statute.

As to the affidavit, which constituted the basis of the defendant’s right to a commission to take the depositions, it is manifestly and substantially defective. It does not in a single particular comply with the statute. (Code Grim. Proc., art. 764.) At common law depositions in criminal cases are unknown. It is only by virtue of our statute that they can be taken and received in evidence, and hence, when a defendant seeks to avail himself of this mode of making proof, he must comply at least substantially with the requirements of the statute. (Johnson v. The State, 27 Texas, 758.) Failing to do so, he fails to use the diligence in obtaining his testimony which the law exacts from him. The affidavit required by article 764, Code Criminal Procedure, is a material requirement of the statute, and constitutes the very foundation of the defendant’s right to take depositions. To make and file such affidavit is as essential to due diligence, in our opinion, as it is to apply for process for a witness who is within the jurisdiction of the court. This being our view, we hold that the court did not err in holding that the defendant had not used due diligence to obtain the depositions.

As to the authority of the consul to take the depositions, we are of the opinion that that officer has such authority, by a fair and reasonable construction of our statutes. It is not expressly conferred upon him by our Code of Criminal Procedure (Code Grim. Proc., art. 760), nor is it expressly denied to him. In fact there is no express provision of our Code of Criminal Procedure which prescribes the rules for taking depositions where the witness is beyond the limits of the United States. In civil cases, the provisions of the statute are ample, and the officers who are authorized to take depositions without the United States are designated, and among them is named a consul of the United States. (Bev. Stats., art. 2226.) By article 762 of our Code of Criminal Procedure it is provided that “ The rules prescribed in civil cases for taking depositions of witnesses shall, as to the manner and form of taking and returning the same, govern in criminal actions, when not in conflict with the requirements of this Code.” In the case of Pauska v. Daus, 31 Texas, 67, it was held by our supreme court that an objection made to depositions, that they were taken and returned by an officer not authorized by law, was an objection to the manner and form of taking and returning depositions. If this decision be correct, and we are not disposed to question its correctness, then the authority of the officer relates to the manner and form of taking and returning the depositions, and comes within the scope and meaning of ' article 762 of the Code of Criminal Procedure, and makes article 2226 of the Revised Statutes apply to depositions in criminal cases in so far as to empower a consul of the United States to take such depositions; because said article 2226 is not in conflict with any provision of the Code of Criminal Procedure.

But notwithstanding the application for continuance was properly overruled because due diligence to obtain the absent testimony had not been exercised, still, if upon the trial the evidence adduced disclosed the materiality of such absent testimony, and that it was probably true, it would be matter addressed to the discretion of the court, to be considered in passing upon defendant’s motion for a new trial.

In order to determine whether or not the absent testimony is of a character which would entitle the defendant to a new trial, we must first examine the evidence adduced on the trial. We will briefly state the substance of that evidence as we find it in the record. Three days before the homicide, the deceased, in the presence of witnesses, accused defendant of having seduced her under a promise of marriage. He did not deny the accusation, but asked her if she could prove it. She answered that she could prove it by his letters. She importuned him to marry her, which he refused to do. Defendant lived by himself in a house which was surrounded by a high yard fence, there being a gate in the fence in front of the house. In front of his house was a street, and around his premises the ground was open, there being nothing to obstruct the vision for some distance. On the night of the homicide the stars were shining brightly. A witness who resided about one hundred and forty steps from defendant, and on the same street, testified that he was standing in his yard in full view of the street and of defendant’s premises when the first shot was fired; that five shots were fired, all in the direction of defendant’s house; that he immediately went out upon the street, and along the street to a point opposite defendant’s house, and saw defendant standing near his front gate, insjde the yard, with a pistol in his hand which he seemed to be loading, and heard defendant cry out three times, “ they are robbing me.” He went to where defendant was and found the front gate locked. He told defendant to unlock the gate, which he did. Witness then entered the yard and discovered the dead body of deceased lying upon the ground between the gate and the house. Witness asked defendant which way the robbers had fled, and he pointed to the street and in the direction of where witness lived. In a few moments another witness came into defendant’s yard, and recognized the dead body of the woman as that of Josefa Galindo, and remarked in the presence of the defendant that she was the woman that the defendant had seduced. To this remark the defendant made no reply. This last witness then asked the defendant why he had killed the woman. His reply was that she had been molesting him. all night, and would not let him sleep. Deceased was shot in the breast with one ball, which produced almost instant death. It was stated by the first witness that he was in plain view of the street leading from his house to the defendant’s, all the time from the firing of the first shot to the time that he entered defendant’s yard, and that he saw no one pass along said street during said time, and that no one could have passed along said street without his observing them. Other witnesses also, who lived in the immediate vicinity, and who were aroused by the pistol shots, and who were in a position to see any person who might leave defendant’s premises, state that they saw no person leave said premises in any direction. Defendant’s pistol showed that he had fired five shots. Three of the balls discharged had lodged in the front part of the house, one had gone through the yard fence at one side of the house, and the other had killed the deceased. All the witnesses agree that but five shots were fired. The balls lodged in the house and fence indicated that they had been discharged from a point in the front yard in the direction from the house of the front gate.

The theory of the defense was, and is, that the deceased and two men, her friends, had invaded the defendant’s premises for the purpose of doing him violence; that he rushed out of his house to defend himself, and opened fire on his assailants, and shot and killed the deceased. In support of this theory the testimony of the absent witnesses was sought. It is stated in the application for continuance, in substance, that by-the testimony of said absent witnesses facts can be proved xvhich establish, or strongly tend to establish, said theory. That the testimony sought was “material we do not question. But can it reasonably be said, in view of the evidence adduced, that it is probably true? We think not. The theory of ■the defense, to our minds, is contrary to all the evidence in the case; contrary to the defendant’s confession made immediately after the murder; contrary to reason, and extremely improbable. When asked why he had killed the woman, defendant advanced no such theory in justification of the deed, but gave as his only reason for it .that she had been molesting him and would not let him sleep. He said nothing about an attack having been made upon him. He pointed to no sign or evidence that any one had been inside his yard,— not even a track. His fence was high and his gate was locked. Is it reasonable to suppose that men and the deceased could climb the fence into the yard, and the men climb out again, and yet no indication of their entrance or exit be left upon the premises? Is it reasonable that men would enter his premises for the purpose of doing him violence, and after being shot at five times scamper away without an effort to kill or injure the object of their malice? Is it reasonable that these men could escape from the premises in plain view of witnesses, in the bright light of the stars, without being seen or heard by some one? We cannot believe it at all probable, in fact not even possible, in view of the facts proved on the trial, that the testimony of the absent witnesses, as stated in the application for continuance, is true. We do not think an intelligent jury would give to it any credence whatever. We think the evidence as developed on the trial fully justified the trial judge in refusing the application for continuance upon its merits, and that said absent testimony is not entitled to consideration in determining defendant’s motion for a new trial.

As to the charge of the court, it is, in our opinion, substantially correct, and as favorable to the defendant as the most liberal view of the evidence would warrant. It submits clearly and fairly every issue presented by the evidence, and is, in no material respect, deficient.

We find nothing in the record which would justify even a suspicion that the defendant has not had a fair and impartial trial. It is true that his trial was unusually speedy, but it cannot be inferred from this fact that it was not perfectly fair and impartial. By his own confession and by all the evidence it was conclusively shown that he killed an unfortunate, helpless woman — a woman whom he had seduced under a promise of marriage, and that he had committed this cruel murder for no other reason than to free himself from the importunities of his disgraced victim to fulfil his promise and marry her, and thereby to some extent save her from the reproach which he had brought upon her. She had doubtless gone to his house on that fatal night, and had been suffered by the defendant to enter his premises, but, renewing her importunities for justice at his hands, he determined to rid himself of her forever, and fired the shot which murdered her whom he had already degraded. The extreme penalty of death of is not too severe for such a murderer.

The judgment of conviction is affirmed.

Affirmed,

[Opinion delivered November 4, 1885.]