Pierson v. State , 21 Tex. Ct. App. 14 ( 1886 )


Menu:
  • White, Presiding Judge.

    This is a companion case to that of Bob Pierson v. The State, 18 Texas Court of Appeals, 524. A joint indictment charged appellant and his brother, Bob Pierson, with the murder of J. C. Stovall, and, upon a severance, Bob was tried first and convicted of murder of the second degree, with a penalty assessed of thirty years in the penitentiary; the convic*55tion in this case being for murder of the first degree, with a life term in the penitentiary affixed by way of punishment.

    1. A motion for change of venue was made by defendant in this case, based upon the statutory grounds “that there exists in the county where the prosecution, commenced, so great a prejudice against him that he can not obtain a fair and impartial trial.” (Code Crim. Proc., Art. 578, sub-div. 1.) Seven compurgators supported by their affidavit the affidavit made by the defendant.

    Our statute provides'how an application for change of venue may be controverted, as follows : “ The credibility of the persons making affidavit for change of venue, or their means of knowledge, may be attacked by the affidavit of a credible person, and the issue, thus formed, may be tried and determined by the judge, and the application granted or refused, as the law and the facts shall warrant.” (Code Crim. Proc., Art. 583.) With this statute as his authority the district attorney, by motion, resisted the application, and in support of his motion, and as parts thereof, filed two affidavits, the first being signed by seventeen private citizens, and the second by six deputy sheriffs of Travis county. In these affidavits it was alleged “ that there does not exist in Travis county, Texas, where the above stated cause was commenced and is now pending, so great a prejudice aginst Tom Pierson, the defendant in said cause, that he can not obtain a fair and impartial trial; that the means of knowledge of defendant’s compurgators (naming them), being all the persons upon whose affidavits the change of venue is sought in this case by the defendant, are imperfect touching the prejudice alleged to exist in Travis county, Texas, against the defendant, Tom Pierson; and their conclusions that the defendant, Tom Pierson, can not get a fair and impartial trial in Travis county, is not true in fact, and their means of knowledge, and their information upon the question of a prejudice against Tom Pierson in said county, is not sufficient to authorize the making of said affidavits.”

    Defendant demurred to these controverting affidavits; first, in so far as they tendered an issue of “no prejudice,” upon the ground that the law did not authorize, nor permit, such an issue to be tendered ; and second, because the affidavits, in so far as they attempted to attack the means of knowledge of the compurgators, were too general, were negative only, and averred no affirmative fact. The demurrer was overruled, and the court *56held that the burden of proof rested upon the State to establish “no prejudice.”

    No error is perceived in the action of the court in overruling the demurrer. In the absence of any statutory declaration as to what shall be the requisites of the controverting affidavit's, we are not prepared to say that a general denial, under oath, of the sufficiency of the means of knowledge of the compurgators, would not be such an attack upon their knowledge as would authorize the issue of “prejudice” or “ no prejudice,” and the introduction of evidence upon that issue. This whole-question was ably discussed by Judge Hurt in Davis v. The State, 19 Texas Court of Appeals, 201. He says : “But where the affidavit of some credible person is made, controverting the credibility or the means of knowledge of the compurgators, an issue is formed; and,¡ until this be done, there being no issue between the parties, there is nothing to be tried and determined by the judge. But when this is done, upon whom rests the burden of proof ? We think upon the applicant—the defendant. This, however, is a nice question. The affidavit controverting the defendant’s supporting affidavit being made, ‘ the issue thus formed shall be tried and determined by the judge, and the application granted or refused as the law and facts shall warrant.’ The judge must try and determine the issue formed in the manner directed in said Article (583), and this shall be done as the law and facts shall warrant. What facts P Those adduced on the trial of the issue thus formed; and by Article 584 the facts adduced on the trial of this issue must, to authorize this court to revise the order refusing a change of venue, be reserved in a bill of exceptions. If the credibility of the supporting affiants is, by the proper affidavits, made the issue, the evidence must be confined to this issue; and so with regard to the means of knowledge, if that be the issue formed. Just what facts are admissible under the last issue (that relating to the means of knowledge of the supporting affiants) presents an exceedingly difficult question. We believe that, under the issue, the defendant would have the right to prove the existence of the prejudice by any witness, besides the affidavit of his compurgators ; and, on the other hand, the State would have the right to prove that no such prejudice did in fact exist. The supporting affiants could thoroughly be tested, as to their means of knowledge, by either party.”

    Under this exposition, of the law and practice in such matters, we see no error in the ruling complained of in this instance. *57True, the court imposed the burden of proof in this case upon the State instead of defendant, but of this it cannot be possibly conceived how the defendant could be heard to complain. And, for the same reasons as above stated, the court did not err in admitting the testimony of witnesses introduced by the State to prove the issue formed, over objections of defendant, as shown by his bills of exceptions upon that point.

    2. It is insisted that the court erred in holding the proposed juror, Kirby, competent, he, the juror, having heard the previous trial of Bob Pierson, upon almost identically the same state of facts. This precise question was determined in Thompson v. The State, 19 Texas Court of Appeals, 594. In that case the proposed juror had heard the previous trials of appellant’s co-defendants, and had made up and formed an opinion as to their cases, and thought the result-reached in those cases (convictions) was all right, but he stated that he had no opinion of the guilt or innocence of the defendant in that case, and could give the defendant a fair and impartial trial in that case. (Acts Nineteenth Legislature, p. 91). It was held that “the mere fact that a juror has heard the evidence on a prior trial of the same case will not disqualify him. (Parchman v. The State, 2 Texas Ct. App., 228; Wade v. The State, 12 Ct. App., 358.) There must be established in his mind a conclusion of the guilt or innocence of the accused, and this conclusion must be such as will influence him in his verdict. * * * A mere impression, though derived from the evidence (heard on a former trial), does not disqualify a juror unless it would influence his finding.” (Rothschild’s case, 7 Texas Ct. App., 520; and see acts Nineteenth Legislature, p. 91; Code Crim. Proc., Art. 636, sub-div. 13.)

    3. The venireman Houghton stated, as a reason why he thought he was disqualified, that he was one of the compurgators to the defendant’s application for change of venue. He was held competent by the court, and the State accepted him as a juror. The juror protested that, if he was required to act as a juror, and defendant should be acquitted, he would be blamed; whereupon the court stood him aside without defendant being asked to excuse, accept or reject him. Defendant excepted to the ruling, whereupon the State’s counsel proposed to have the juror brought back and impaneled. He was subsequently, and before the panel was complete, brought back and tendered to defendant,' and defendant’s counsel was asked if he would have the venireman sworn as a juror. His reply was, “defendant *58stands mute,” and the court again finally discharged the juror. Under the circumstances, defendant has no ground of complaint. He could have had the juror had he so desired, and if he has been deprived of a valuable juror, he has no one to blame but himself. The rule invoked from Earley’s case, 1 Texas Court of Appeals, 249, with regard to silence of accused when required to waive error, is not applicable to the facts here presented. There was no possibility that injury had - been done the defendant when the juror was again tendered to him.

    4. It is not error to refuse to permit a defendant to challenge a juror peremptorily after he has exhausted his twenty peremptory challenges, as was sought to be done by appellant in the case of the juror Wahrman. (Thompson v. The State, 19 Texas Ct. App., 594; Kennedy v. The State, 19 Texas Ct. App., 619.)

    5. Objection was made, and exception reserved, to the admission of the testimony of Gagnan and Tomberlin, as to declarations made by the wounded man to them as soon as they reached him, which was in about five minutes from the time they heard the shots fired and the cry for help,—time to run about one hundred and twenty yards. These declarations, made under such circumstances, come clearly within the rule of res gestae, and were admissible. (Warren v. The State, 9 Texas Ct. App., 619; Booth v. The State, 4 Texas Ct. App., 202; Stagner v. The State, 9 Texas Ct. App., 441; Williams v. The State, 10 Texas Ct. App., 528; Hobbs v. The State, 16 Texas Ct. App., 517; Brunet v. The State, 12 Texas Ct. App., 521; 91 N. C. 518. See also Bob Pierson’s case, 18 Texas Ct. App., 524, where this same evidence was held admissible.)

    6. Dying declarations were proven by two witnesses, Doctor t Swearingen and the justice of the peace, Von Rosenberg. The former was a physician called to minister to the sufferings of the wounded man; the latter was sent for as an officer to take his dying statement. Doctor Swearingen saw him the next morning after he was shot. He found him rational and thought him conscious of approaching death. The witness thought so, and because he, deceased, asked witness his opinion of the case, and when witness gave him his opinion, the dying man concurred in it, Doctor Swearingen said to him : “You know, doctor, that this character of cases are usually fatal, as well as I do,” and he said : “Yes, I am satisfied it will kill me.” We think that a sufficient predicate was laid under the requirements of the stat*59ute (Code Crim. Proc., Art. 748), for the admission of this witness’s testimony as to the dying declarations. (Hunnicutt v. The State, 18 Texas Ct. App., 499.)

    Von Rosenberg testified that, just before he wrote the declaration which was admitted in evidence, he was called into the room of the dying man, and as he went round his bed the deceased looked up and said: “Rosenberg, I cannot live, and I want to make my dying statement,” whereupon the witness wrote down his declaration as follows : “'It was Tom Pierson that shot me while I was on my return from Felix Smith’s last night. Bob Pierson was with him. Tom was riding a sorrel, blaze face horse. They had no occasion to shoot me. I had not spoken to them a word, nor had I done anything to either of them.” This declaration was signed by the dying man. A proper predicate under the statute was fully shown for the admission of the declaration also. The statement that “ they had no occasion to shoot me ” was not a mere inference or opinion of the wounded man, and inadmissible on that account. In Wroe v. The State, 20 Ohio State, 460, where the dying man stated that “it was done without any provocation on his part,” and in Payne v. The State, 61 Mississippi, 161, where the statement was : “John Payne ought not to have shot him; that he shot him without any cause whatever,” it was held in each case that the statement of fact, and not inference or opinion, was admissible in evidence.

    7. Appellant’s counsel, in their brief, after stating many supposed objections to the charge of the court, ingenuously remark: “We may be hypercritical in our criticism of the charge.” Our examination of the charge, in connection with the objections, has convinced us that the criticisims are hypercritical. It is sufficiently full and explicit, and appellant’s counsel should have requested instructions upon the points which, in our opinion, needed amplification or further explanation. No additional instructions were asked.

    8. Objections are made to the closing speech before the jury on the. part of the State, and the supposed objectionable remarks are presented in full in the bill of exceptions. These remarks were made in reply to arguments used by defendant’s counsel. It is candidly stated, in connection with this exception that, “during the argument of one of the counsel for defendant, he-stated as a fact that Bob Pierson had been convicted and given *60thirty years in the penitentiary by a verdict of the jury, appealed his case to the Court of Appeals, where it was affirmed; that he was now in the penitentiary, paying the penalty for his crime, and that he, counsel, believed from the evidence in this case, that there was a conspiracy on the part of Bob Pierson’s family and friends to force a conviction of defendant and some other person, to the end that such convictions might be used with the executive, in an effort to obtain clemency for Bob Pier-son, or words of this substance; and further, by Mr. Sheets, that the murder was a most dastardly and cowardly one; that the defendant was incapable of committing an act so cowardly, and he appealed to the jury to look into defendant’s face for evidence of courage and consequent incapacity to commit such a crime.”

    Prosecuting counsel, in a masterly manner, took up the gauntlet thus thrown down, and ably, eloquently and with telling force, presented the State’s side of the collateral issues thus forced upon the prosecution. We are not prepared to say that his remarks were not entirely legitimate, independent of the provocation and invitation thus given by the defense. If the defendant wishes to invoke the rule of confinement to the record, they, themselves, must keep within the record. When they voluntarily go outside, they at least invite, if they do not render it necessary, that the prosecution should follow. Appellant’s counsel characterized the deed as a most dastardly and cowardly murder, and requested the jury to look into defendant’s face for evidence of courage and incapacity to commit such a crime. Answering this argument the reply was: “ Whoever saw that face (pointing at defendant) that could ever forget it? No, gentlemen, no. As the pistol flashed, there was a circle of light in his front, and through it gleamed the eyes of the assassin sitting there (pointing at defendant) in this court room.”

    This reply was called for, and was legitimate. As stated above, if the remarks excepted to were not legitimate primarily, they were most clearly so, and entirely within the bounds, as answers to the above arguments of defendant’s counsel.

    We have discussed all the questions raised by distinguished counsel in their able brief in this case. They have done all, perhaps, that legal skill and ability could do for an unfortunate client whose guilt of murder in the first degree has been satisfactorily established by means of fair and impartial trial, in *61which no reversible error has been committed. It only remains for us to affirm the judgment, and it is accordingly in all things affirmed.

    Opinion delivered March 7, 1886.

    Affirmed.

Document Info

Docket Number: No. 1993

Citation Numbers: 21 Tex. Ct. App. 14

Judges: White

Filed Date: 3/7/1886

Precedential Status: Precedential

Modified Date: 9/3/2021