Jackson v. State , 18 Tex. Ct. App. 586 ( 1885 )

Hurt, Judge.

At the March term of the district court of Brazos county Andrew Jackson, the appellant, was tried for the murder of Jerry Bussell. He was convicted of murder of the first degree, the death penalty being imposed. From this conviction and judgment thereon he appeals to this court.

Appellant insists that the court below should have instructed the jury upon the subject of manslaughter. There is no evidence in this record presenting or tending to present this degree of homicide.

The third error assigned is that the court should have granted appellant a new trial. Two grounds are relied upon: 1st. Insufficiency of the evidence to sustain a conviction for murder of the first degree. 2d. bfewly discovered evidence.

1st ground: If the witnesses for the State are credible,— and we find no reason, if we had the right, to doubt their veracity,— the evidence is amply sufficient to support a conviction for murder of the first degree.

2d ground: Hewly discovered evidence. The evidence discovered consists of facts which go simply to impeach the witnesses William Duty, Jr., and Mary Jane Duty. These witnesses testified that they were present at the homicide, and that after the shooting they left. The Beeds in their affidavits state that soon after the shooting they went to the place of the killing, and that neither William nor Mary Jane were there. In this there is no conflict, for they (the Dutys) testify that they were not there when the Seeds arrived. . But, concede that the facts contained in the affidavits of the Seeds are in conflict with the evidence of the Dutys, being simply calculated to impeach these witnesses, a new trial should not be granted.

Upon this subject Messrs. Graham and Waterman say: “ Closely allied to the preceding rule is another, that, if the alleged newly discovered evidence consists in an attempt to discredit witnesses who testified at the former trial, a new trial will not be granted.” (Vol. 1st, 496.)

We desire to make some observations on this rule. Let us suppose that the newly discovered evidence not only tends to discredit a witness, but that it is also material and competent, independent of its impeaching tendency. The fact that it impeaches a witness will not deprive the party of a new trial; but to justify a new trial it must be something more than impeaching testimony.

Again, it is claimed that a new trial should have been granted because the little girl, Mary Pearce, who was about ten years old, was so alarmed by being under arrest, and by the crowd in the court-house, that she could make no intelligent statement of the facts. This girl had testified before the examining court, and her evidence reduced to writing. When the cause was called for trial she was not present, and defendant had an attachment issued, and she was arrested and brought before the court before defendant closed his evidence. Being interviewed by counsel for defendant, it was discovered that she was so alarmed that she could not give an intelligent statement of what she saw and heard at the homicide. This is the substance of the affidavits of the counsel for defendant.

The girl was not introduced as a witness. After the trial and conviction herein, being examined again by counsel for defendant, she had regained her self-possession and made a clear statement of the facts attending the homicide. Mow upon this matter it is insisted that the court should have granted a new trial.

We do not think so, because the defendant did not pursue the rule upon this state of case. The rule is that when a material witness for a party is incapacitated to testify by being panic stricken, or by being intoxicated, a new trial should not be granted unless, when discovered, the party desiring to use the witness informs the court of the condition of the witness, so that the court may have an examination made into the circumstances of the case, and upon finding that the witness, without defendant’s fault, was not in a sitúatian to be examined, the trial might be delayed for a time, or the announcement withdrawn and the case continued until the next term. (Graham & Waterman on New Trials, 976 and 977; Mann v. Clifton, 3 Blackf., 304; Iseby v. Lovejoy, 8 Blackf., 462.) There is nothing in Hesbcew v. The State, 14 Texas Ct. App., which bears upon this question.

Another ground submitted for reversal of this judgment is that the district attorney went out of the record in his argument, and misled the jury, etc. This matter appears only in the motion for new trial. The record fails to show that defendant objected to the argument of the district attorney, or called upon the court to check him in this course of argument. The rule is that all such matters must be excepted to at the time, and reserved by bill of exceptions.

We have examined all of the supposed errors submitted by counsel for defendant, and must say that, if there be error in this record, we have not found such. The facts are few and unequivocal. A few days before the homicide the deceased (Jerry ¡Russell) and defendant had hot words at church. On the day of the homicide William Duty had employed deceased to help him chop cotton on a ten-acre lot within the field cultivated by Duty and defendant. At about 11 o’clock they ceased working. William Duty, Jr., Mary Jane Duty and deceased went from the cotton patch by the house of defendant on their way home. When they had reached within about one hundred yards of the gate, defendant, who was plowing near his house, looked up and saw them, stopped his horse and plow where they were, and walked rapidly to his house, reaching there before the Dutys and deceased. When deceased got into the lot, defendant was standing by the well. Deceased and William Duty, Jr., started on up the road, through the lot, to the other gate. As deceased got opposite the well, defendant said to deceased, “ What did you mean by talking to me as you did the other night.” Deceased replied: “I will see you some other time about that,” and started to walk on. Defendant said “You won’t see any better time than right now,” and raised his gun and fired, shooting deceased in the back, on the left side near the shoulder-blade bone. Deceased (Jerry Russell) died instantly. Upon an examination it was discovered that deceased had a derringer in the bottom of his pocket. There was no demonstration made by 'deceased of any kind, showing hostile intentions on his part. In his right hand he held his hat, when shot, and was still holding it after death. These are in substance the simple facts attending the homicide, as sworn to by William Duty and his sister.

How, if these facts are true,— and the jury, by their verdict, say they are,— defendant is guilty of murder upon express malice. For they show a calm and sedate mind, a formed design to kill,— a design formed while the mind was sedate, cool and without excitement,— such excitement as would reduce the homicide to murder of the second degree.

We have given to this record that examination commensurate with the terrible consequences to the defendant, and are constrained to hold that there is no such error apparent as will authorize a reversal of the judgment. It must, therefore, be affirmed.

Affirmed.

[Opinion delivered June 24, 1885.]