Davis v. State , 19 Tex. Ct. App. 201 ( 1885 )

Hurt, Judge.

Appellant appeals from a conviction of murder of the first degree, for the murder of James B. O’Bannon, the punishment being confinement in the penitentiary for life. We will discuss the errors in the order in which they are presented in the brief of appellant. The first, second and third assignments will be treated together, because they treat of the same matter.

The cause being regularly reached and called for trial, the State announced ready for trial, whereupon defendant filed and presented his motion for a change of venue upon the ground “ that there existed in the county of Llano, where this prosecution is commenced, so great a prejudice against him that he cannot obtain a fair and impartial trial.” This application was signed and sworn to by defendant, and was supported by the following affidavit s

“ State of Texas, County of Llano.

“ Bow comes Wm. A. Yett, H. 0. Oatman, T. J. Moore and J. B. Moss, credible citizens of Llano county, Texas, each of whom, being duly sworn, states on oath that the allegations in the above and foregoing application for change of venue, on the reverse hereof, are true.

(Signed) “ W. A. Yett,

“H. C. Oatmah,

“ T. J. Moore,

“J. B. Moss.”

To this application the following answer controverting the same was filed by the district attorney:

“ And now comes the State by her attorney and denies all and singular the allegations in defendant’s motion for a change of venue, and says that there is not so great a prejudice existing against the defendant 0. 0. Davis in Llano county as to prevent him from getting a fair and impartial trial in said county; and states affirmatively that he can get a fair and impartial trial in said county of Llano. And the district attorney states further that W. A. Yett, one of the affiants to the truth of defendant’s motion, is a relative of defendant; that H. 0. Oatman, another of the affiants to the truth of defendant’s motion for change of venue, is a tenant of said W. A. Yett; that T. J. Moore and James Moss, the other two affiants to the truth of defendant’s motion, are resident citizens of the southern portion of Llano county, and are not acquainted with the sentiment of the jurors throughout the county of Llano, Texas. That there are over fourteen hundred legal jurors in Llano county, and that defendant can get a fair and impartial trial.” This answer was supported by the affidavits of eight citizens of the county.

By article 578, Code Criminal Procedure, it is provided:

“A change of venue may be granted on the written application of the defendant, supported by his own affidavit and the affidavit of at least two credible persons, residents of the county where the prosecution is instituted, for either of the following causes, the truth and sufficiency of which the court shall determine:

“ 1. That there exists in the county where the prosecution is commenced so great a prejudice against him that he cannot obtain a fair and impartial trial.”

By article 583, Code Criminal Procedure,- it is further provided:

“ 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 shall be tried and determined by the judge, and the application granted or refused, as the law and facts shall warrant.”

To the answer controverting the application the defendant demurred : 1st. “ Because it does not attack the credibility of either of the parties supporting said motion.” 2d. “It does not attack the means of knowledge of said parties supporting said motion, and therefore is no answer to defendant’s motion.” The court overruled the demurrer, and defendant excepted and reserved his bill of exceptions.

The question presented for our determination is the sufficiency of the affidavit controverting the motion to change the venue of the case.

To the Code of Criminal Procedure, treating of the subject of change of venue, article 583 was added by an act passed February 21, 1879; and hence we can obtain no light bearing upon the question before us from adjudications prior to that date. This article had not been passed when the opinions were delivered in Winkfield v. The State, 41 Texas, 148; Crow v. The State, 41 Texas, 468; Anschicks v. The State, 45 Texas, 148, and Grissom v. The State, 4 Texas Ct. App., 374.

In Winkfield v. The State, Roberts, Chief Justice, holds that when the defendant makes application for a change of venue because of prejudice in the county against him, the prosecution can introduce in evidence counter-affidavits, showing that there is no such prejudice, as well as “affirmative” evidence of the fact of want of prejudice, and that in fact the defendant could have a fair and impartial trial.

In Salinas v. Stillman, 25 Texas, 16, it is held that counter-affidavits, or rebutting testimony, as to the grounds of an application for a change of venue are inadmissible.

In Walker v. The State, 42 Texas, 360, it was held that the application cannot be overturned by any number of counter-affidavits of a negative character; and in Buford v. The State, 43 Texas, 415, it is said: “ nor by counter-affidavits which fail to show that the statements of the application are not true, even though accompanied with an unsworn statement of the prosecuting attorney.”

And in Anschicks v. The State, 45 Texas, 148, it was held that the application cannot be overborne by such affidavits as do not attack the character of the compurgators for truthfulness or intelligence, nor show their want of information.

By comparing these opinions it will be found that the subject is left in doubt and uncertainty, especially with the trial judges. The above cases were all passed upon prior to the passage of article 583, and, as the law stood before this article was added, there was no provision made for the formation of a written issue between the defendant and the State. When the written application was made, properly supported by the affidavit of two “ credible persons,” without an affidavit controverting that of defendant, the application for the change could be contested by the State in the manner stated in the opinion of Chief Justice Roberts in Winkfield v. The State. But as this question had been left in uncertainty by the opinions in Salinas v. Stillman, Walker v. The State, Buford v. The State and Anschicks v. The State, the Legislature undertook to supply this matter by adding article 583.

Row let us examine article 583. The State has the right to controvert the application; but in what manner? How must this be done? The manner is plainly pointed out in this article. This must be done by the affidavit of some credible person that the general reputation of the supporting affiants is bad (see Willson’s Grim. Forms, Ro. 639); or by the affidavit of some credible person that their means of knowledge are not sufficient to support and justify the statements contained in their said affidavits. (Willson’s Cr. Forms, 640.) (While we do not intend to hold that Willson’s Forms must be strictly followed, we, however, believe them to be admirable precedents, and that, if adopted, a great deal of trouble would be avoided.) The credibility or means of knowledge of the persons making the affidavit being thus attacked, an issue is formed between the defendant and the State. What is the issue or issues?

Defendant, the applicant for the change, affirms that there exists such prejudice in the county against him that he cannot obtain a fair and impartial trial. To this he makes an affidavit, which is supported by the affidavit of at least two credible persons. Now, if there be no affidavit of a credible person made controverting the affidavit of the defendant’s supporting affidavits, the change must be granted, because there is no issue between the parties. 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 — 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, and this shall be done as the law and facts shall warrant. What facts? Those adduced on the trial of the issue thus formed; and, by article 584, the facts adduced upon 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 affidavits 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 this issue, 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.

We come now to consider the sufficiency of the affidavit controverting the affidavit made in support of defendant’s motion for change of venue. Is it sufficient ? Does it controvert the credibility of the compurgators? It does not; and hence there was no issue formed and no trial could be had upon this matter.

Does it controvert their means of knowledge? It states that Yett is a relative of defendant. Suppose he is; certainly he may be a credible person. Oatman is alleged to be a tenant of Tett. He, too, may nevertheless be a credible person. It is alleged that Moore and Moss “ were resident citizens of the southern portion of Llano county, and are not acquainted with the sentiment of the jurors throughout the county.” A person may reside in any portion of a county, and still have the very best means of knowing the sentiment of the people of the county in regard to certain matters. This affidavit does not directly deny the means of knowledge, and, if inferentially, the inference is quite vague and uncertain. Strange, indeed, that this was not done in a clear and direct manner, leaving nothing to inference.

We are of the opinion that the affidavit is fatally defective, and that there was no issue formed to be tried and determined by the judge. This being the case, the exceptions or demurrer to this affidavit should have been sustained.

But to the bill of exceptions to the order of the court overruling defendant’s demurrer, the learned judge appends this explanation:

“ The parties whose affidavits were attached to the application for change of venue were all examined by the counsel for defendant and State, as well as five or six other witnesses; and, after full examination into the matters alleged in the application, and the means of knowledge of affiants thereto, it was overruled by the court.”

Now, while the court may have erred in overruling the defendant’s exceptions to the answer controverting the supporting affidavit, the defendant and the State, without any objections upon the part of defendant, went fully into this matter by examining the compurgators and a number of other witnesses, not only in regard to the existence of prejudice, but as to the means of knowledge of the supporting affiants. Appellant might have objected to the introduction of any evidence until a legal issue was formed; but this was not done, and it does not appear that any incompetent evidence was received upon the trial of the issue, though not formed according to article 583.

We are not able to perceive in what manner the rights of appellant have been affected in this matter,— at least, not to such extent as would require a reversal of the judgment.

Fourth assignment:

It appears by bill of exceptions that, after the persons summoned as jurors had been sworn to answer questions as to their qualifications, the court called each juror separately and tested his qualifications by asking him the questions prescribed in article 631 of the Code of Criminal Procedure, and interrogating him as to all disqualifications and causes for challenge prescribed in article 636,. except challenges Eos. 3, 4 and 5; and when, after full examination by the court, it was found that no cause of challenge existed, each juror was passed to the State for challenge for cause, and, not being challenged by the State, was passed to defendant for challenge for cause, when the defendant by counsel claimed the right to (by his own counsel) interrogate each juror as to cause of challenge, for each cause which might exist. The court refused to permit this, stating that he would further examine such juror as to any particular cause for challenge which defendant might suggest, and for which he desired to challenge the juror, and permit defendant to produce evidence aliunde to show that any cause for challenge existed. To which ruling defendant objected and challenged each juror for cause generally, which was overruled by the court, and defendant again excepted.

It will be seen from the bill of exceptions that the court interrogated each juror as to all disqualifications and causes for challenge contained in article 636, except Eos. 3, 4 and 5, “and after a full examination it was found that no cause of challenge existed.” Eow it is not contended that the questions propounded by the court were not amply sufficient, and calculated thoroughly to test the competency of each juror. Eor does it appear that counsel for defendant desired to propound any question to the jurors, or either of them, which was refused by the court. The simple question presented is, whether the defendant had the right, by his counsel, to examine the jurors? We are of the opinion that, within proper limits, the safer practice would be to permit counsel to make the examination. But this matter is within the discretion of the court, and, if not abused, we will not reverse its action in the premises.

Under the thirteenth subdivision of article 636, if the juror answers that there is established in his mind such a conclusion as to the guilt or innocence of defendant as will influence him in his action in finding a verdict, he shall be discharged. But if he answers that such conclusion will not influence his action in finding a verdict, he shall be further examined by the court, or under its direction, as to how his conclusion was formed. Here we see that upon the most important matter relating to his competency, the court is expressly given the power to examine the juror. And if this examination is not sufficiently full and pertinent, certainly counsel for defendant would have the right to suggest questions calculated to elicit the real truth. We do not think that section 10 of the Bill of Bights has been impinged in this matter.

We are informed by bill of exceptions that, some time after the homicide, defendant was confined in the Sherman jail on the charge of theft; that the witness Ligón, being informed by the authorities of Grayson county that they had a man in custody supposed to be Davis, went to Sherman to ascertain if said man was in fact Davis, and if so to bring him to Llano county to answer the charge of murder in this case. When Ligón reached Sherman he went to the jail and there had a conversation with defendant as follows: Ligón says, “ I had a conversation with defendant in jail at Sherman. I pointed him out and called him C. 0. Davis. He said his name was not Davis, that his name was Thomas Simpson.” To which the defendant objected because at the time he was in custody; which objection was overruled, and these facts were admitted in evidence.

Defendant being in custody, whether upon this or any other charge, his confessions or statements were not admissible against him. (Taylor v. The State, 3 Texas Ct. App., 387; O'Connel v. The State, 10 Texas Ct. App., 367.)

Appellant denied his name and gave another as his true name, which was false. From this several inferences may be drawn; but that most unfavorable to defendant, that this was done to prevent identification and thus mislead Ligón, and by this means prevent him from taking him to Llano county to answer for the killing of O’Bannon. From this conduct the inference is that, as defendant denied his name, and falsely represented that he bore another name, therefore he was guilty of the murder of O’Bannon. While such a conclusion might be drawn from this conduct, it would certainly be strained, and very weak and flimsy. When viewed in the light of the other facts, this conduct of defendant, though suspicious, is very light and frivolous indeed, and we cannot believe that it had the slightest tendency to induce the jury to find the defendant guilty. And while this confession was not admissible, defendant being in arrest, still we do not think it at all probable that he was injured thereby, it being overwhelmingly proven by other evidence that he was the man who killed deceased.

Again: by the bill of exceptions it appears that defendant being in custody of O’Bannon upon a charge of misdemeanor, at the time and for a half hour previous to the homicide, he made certain statements and remarks to O’Bannon and others. Appellant objected to the introduction of these remarks because he was in arrest. These remarks were made prior to the homicide, and were not confessions. It would be a monstrous rule to hold that a prisoner could murder his keeper or the officer in charge of him, and because he was a prisoner his acts and declarations, before and at the time of the killing, could not be adduced in evidence against him. To state the proposition demonstrates its unsoundness.

Eighteenth assignment:

Upon the subject of express malice the court charged the jury that “The deliberate shooting of another with cool, deliberate mind and formed design, if resulting in death, would be upon express malice.” . . . Appellant objects to this charge because it omitted “unlawful; ” for, it is urged, that a cool, deliberate killing with formed design is not of necessity murder of either degree; that, to make it so, the homicide must be unlawful; and in support of this proposition we are referred to the case of an officer executing a convict, coolly and deliberately, or, to a party who may exercise -his right of self-defense in the same manner, without being guilt}'- of any offense. These propositions may be true, but we must construe the charge as a whole, and if, when so construed, there be no error, it should be sustained.

Applying this rule to the charge on this subject, we believe it is correct. The jury were told in the first paragraph “ That every person of sound memory and discretion, who shall unlawfully kill any reasonable creature in being, with malice aforethought, either express or implied, shall be deemed guilty of murder.” How it is altogether improbable that the omission of the word unlawful in that part of the charge relating to express malice induced, or was calculated in the slightest degree to induce, the jury to believe that they were authorized to convict, though the killing be lawful by reason of the right of self-defense.

We are of the opinion that, when viewed as a whole, there will be found- no error in the charge because of this omission.

Defendant, by counsel, requested a charge on the law of self-defense, believing that given by the court defective, “ because it hinges the necessity to kill upon the facts developed on the trial, and not as they appeared to defendant at the time.” We have examined the charge of the court with reference to this objection, and are of the opinion that, under the facts of this case, it will be found correct. It is not, we think, obnoxious to the objections urged by-appellant.

We have also closely examined all of the points raised in the record, though not insisted upon in the brief, and fail to discover such error as will require a reversal of the judgment. It is therefore affirmed.

Affirmed.

[Opinion delivered October 31, 1885.]