Benson v. State , 38 Tex. Crim. 487 ( 1897 )

Appellant was tried and convicted of murder in the first degree, for killing Greorge Canady, and his punishment assessed at death.

Appellant submitted a motion to quash the indictment. We have repeatedly passed upon a similar indictment to the one presented in this case, and held it sufficient. See Caldwell v. State, 28 Texas Crim. App., 566, and cases there cited.

A motion was made to quash the special venire. The explanation of the trial judge and affidavits of the clerk show that the motion was not well taken. The statute pertaining to this subject was complied with, and is as follows: "Whenever a special venire is ordered, all the names of all the persons selected by the jury commissioners to do jury service for the term at which such special venire is required shall be placed upon tickets of similar size and color of paper, and the tickets placed in a box and well shaken up, and from this box, the clerk in the presence of the judge in open court, shall draw a number of names required for such special venire, and shall prepare a list of such names in the order in which they are drawn from the box, and attach such list to the writ and deliver the same to the sheriff." Code Crim. Proc. 1895, art. 647. All of these things were done by the clerk, as shown by his affidavits. The motion to quash the service of the special venire is not well taken. It is not insisted that the names of the parties summoned to serve as special veniremen were not served upon the appellant. A certified copy of the writ, as well as the names of the persons summoned, were served on appellant. There is nothing in this motion worthy of our consideration.

Appellant presented a motion to continue the case, for the want of the testimony of one Henry Hughes. There is no diligence shown as to this witness. The indictment as returned on the 9th of September, 1897. The defendant was then in custody. Process was not applied for to the district clerk of Fort Bend County until the 23d of September, and was not issued by him until the 24th of September. It appears that said process was mailed to J.D. Bryant, of counsel for defendant, at Houston, Texas, who did not deliver the same to an officer until the 25th of September; so that the officer only had four days within which to serve said witness before the day of trial — the 28th of September. Diligence would have required appellant to have issued his process as early after the 9th of September as possible; but no excuse is shown here for the delay. For aught that appears, the witness in the meantime may have left Harris County, although he was a resident of said county. Concede, however, that the diligence was sufficient as to this witness; we are inclined to believe, on examining the record, that, if he were present, he would not testify to the facts stated in the application. But even if he did so testify, in the light of the testimony, we could not regard the facts expected to be proved by him probably true. Again, the inquiry was made from a number of witnesses as to the presence of this absent witness at the homicide, and no one, either for the State or the defendant, intimates that he was present or was known in that community. In fact, he was never heard of by any witness on the stand, either as a stranger, or by name, as being present or in that county. We are of opinion that he was evidently a myth.

As to the witnesses resident in Robertson County, we make the same observations in regard to the diligence used for them as heretofore in reference to the witness Hughes. Besides, these witnesses were character witnesses, and a continuance will not be granted for this character of testimony except under peculiar circumstances. Appellant, however, introduced testimony as to his good character, which was not controverted at all.

The State introduced Cora Canady, Mrs. George, Canady A.B. McGee, Ben Swisher, George Cone, and J.F. Canady, who testified to the conduct and remarks of the deceased soon after he received the mortal wound. This testimony was evidently admissible for the purpose of laying the predicate for the introduction of the dying declarations of the deceased. Everything stated by each and every witness was pertinent to that subject. By the testimony of these witnesses, it was established beyond any controversy that the deceased was rational, and that he believed he was going to die, and that very soon. This evidence was necessary in order to render admissible the dying declarations of the deceased, which were made within fifteen or twenty minutes after he received the fatal wound. This course of procedure is to be commended.

Appellant objected to the introduction in evidence of the dying declarations of the deceased. The predicate was amply established; that is, that the deceased was rational, and believed he was going to die, and that very soon. Again, under the circumstances of this case, if not dying declarations, his statements were evidently part of the res gestae, and we hold upon both grounds that they were admissible.

Appellant excepted to the following charge of the court to the jury: "The State has introduced evidence to show that the witness George. Johnson made to the witness Cone statements different from his statement on the stand as a witness as to where he was at the time of the alleged shooting. This testimony of the witness Cone is not to be considered as tending to show the truth of the facts by him sought to have been stated by the witness Johnson, but is to be considered as affecting the credibility of the said witness Johnson, or the weight to be attached to his testimony, if considered by you at all." Appellant has no ground upon which to complain of this charge. It is correct in every particular, except that portion which intimates that the jury might not consider the testimony of Cone. This is favorable to the appellant, for it was the duty of the jury to consider Cone's testimony in passing upon the credit to be given to the testimony of Johnson.

The question raised by appellant as to the legality of the term of the court at which this trial occurred has been settled adversely to appellant in the case of Nobles v. State, ante, p. 330.

In motion for new trial, appellant insists that the evidence is not sufficient to sustain the verdict, because of no proof that deceased, Canaday, is dead. This was a cool, deliberate murder, if the testimony of the witnesses for the State is true. That the deceased died from his wounds is placed beyond any question. We deem it unnecessary to discuss the testimony.

We are of opinion that the trial below was fair and impartial, the defendant being awarded all his rights. The court instructed the jury in regard to murder in the first degree, murder in the second degree, manslaughter, and self-defense. This, perhaps, was correct, but we are impressed with the opinion that defendant coolly and deliberately intended to kill the deceased if he failed to take back certain remarks he had made; and if the court had refused to submit manslaughter, or instructed the jury that appellant would be guilty of murder if he intended and did kill deceased, because he did not retract certain statements, we would not have reversed the judgment because of such instructions. But, as before stated, all the degrees of murder, manslaughter, and self-defense were submitted to the jury, fairly and liberally to the accused. The jury believed the State's theory, convicted appellant of murder in the first degree, assessing his pnuishment at death, and we see no reason for disturbing their finding. The judgment is affirmed.

Affirmed.