Menefee v. State , 67 Tex. Crim. 201 ( 1912 )

At a previous day of the term the judgment herein was reversed and the cause remanded for reasons set forth in the original opinion. The State has filed a motion for rehearing in which it is contended the court was in error in directing that upon another trial if the facts were the same as upon this trial, and appellant filed his motion for change of venue, it should be granted. We have reviewed the matter in the light of the zealous contention of counsel for the State, but see no reason for changing the views expressed. We deemed it then unnecessary and still deem it unnecessary to go into a discussion of the question. If a motion to change the venue should be made upon another trial, the facts may be different, conditions may be different, or they may be the same, and it is, therefore, unnecessary to discuss those matters in the light of a required reversal upon other questions.

It is also insisted the court erred in holding that appellant proved by several witnesses he was at home in bed at the time of the homicide and had no connection with the killing, and that this finding of the court is not supported by the record. It is stated also in the motion that no witness except appellant's wife testified that he was at home in bed at the time of the homicide. Upon that question the record discloses that Mrs. Menefee testified: "It was about 11:30 o'clock that he went to bed. Dr. Menefee did not leave the house that night at any time after that. He slept in the bed with me that night. During that night the telephone rang two or three times, or maybe more, but I remember that it rang several times." Mrs. Sturdivant testified as did Mrs. Cobb that during the night on different occasions appellant was called over the telephone in response to inquiries touching his professional services in their families. This covered the very time when the State was contending that he was lying in wait for the deceased. Whatever counsel or the court may say with reference to this testimony, the alibi testified by these witnesses covers the time when the State was relying upon his presence at another and different place, to wit, the place of the homicide.

It is also contended that the court erred in holding that it is a "conceded fact" that there were but two shots fired, because the record contains evidence tending to show that there were three shots fired, and various and sundry circumstances were proved bearing upon that issue such as gun-wadding directly in line between the dead body and the corner of the church from where the State contends appellant fired the shot into the back of deceased's head, and other matters of that sort. Perhaps the expression "conceded fact" may have been a little strong, though the writer does not think so. With reference to this question Marvin Sanders, a State's witness, testified "about the time it is said Frank Glasgow was killed I heard two shots right close together, just about like you would snap your fingers. I would estimate that I was about 125 feet from the church. These two shots I heard were just like a man shooting a double barrel shotgun." John White testified as follows: "My house is situated on the east side of Church Street and directly south and the second building from the Presbyterian church. I was at home that night. Sometime during the latter portion of the night I was awakened by the report of two guns in rapid succession. Those shots were as near together as they could be to be distinguishable from each other. So far as I could say there was no difference in the sound of those reports." W.F. Garrett testified that he lived at 107 South Church Street, which is the Alton hotel; that is the first house south of the Presbyterian church. "I remember the night Frank Glasgow is said to have been killed. I was at home that night. I was sleeping in the east room down stairs. I heard two shots fired that night. They were very close together, about like that (snapping his fingers). I was awake at the time." H.M. Slaughter testified as follows: "What I thought I heard at the time was two gun shots in quick succession. Just about like that (snapping his fingers). Very close together. The first one followed the second one before the noise of the first had gone away. I was awake at the time, and in the Sanders boarding house. Sanders boarding house is a little southwest of the Presbyterian church and is something like 175 feet away, or maybe a little farther." The same witness being examined by the court testified: "Those shots I heard just seemed like a dead noise to me, and it sort of cleared up and the sound got off, is the best I could tell about. It sounded to me like two shots but it was so close together it sounded like all the same noise." Being crossed, this witness testified: "To the best of my judgment it sounded like two shots. I did say, in answer to you at first, that the best I could make out there was two explosions, and that is my statement now, that it sounded to me like right close together about like you would snap your fingers." Will Farmer testified on the morning Glasgow was killed, "I was at my bakery. My bakery is on Franklin Street, and Mr. Glasgow was killed at the church on Elm and Church Streets. I could not say hardly how far my bakery is from the church. It is about a block though. At the time that Mr. Glosgow was killed I was standing in the back door of my bakery. The back door of the bakery is located on this alley back of Grahams' store, about half way between Franklin and Elm Streets. What attracted my attention was that I heard a loud explosion, at least I took it to be an explosion, and I thought it was a safe blown open or something like that in Martin-Bragg's dry goods store. The Martin-Bragg dry goods store is between me and the place where Frank Glasgow was killed. There is a row of building all along on both sides of Franklin and Elm Streets. Most of those stores on Elm Street are two stories high. That whole block is built up with brick buildings. They are all between me and the church." Chas. Rader testified: "About 3 or 3:30 o'clock that morning I heard the report of a gun. I couldn't tell whether it was one or two reports. I was about half asleep and it woke me up." "My restaurant is on the south side of the square on Elm Street." "I remember the time Frank Glasgow lost his life. That morning I was over at the restaurant." It may be stated that the restaurant is situated about two blocks from the church in the business portion of the city on the same side with the church. The church is the scene of the homicide.

This, as far as the writer ascertains from the statement of facts, is the evidence in regard to the number of shots fired. The State also placed in evidence the statement of Jim Fox made to Sheriff Freeland that he had shot Glasgow, at the same time handing the sheriff his double barrel shotgun, both barrels of which showed to have been recently fired. There were two shells found at the scene of the homicide. It also appears from the record that Fox had bought seven shells containing BB shot from one of the witnesses who testified in the case, and when he surrendered the gun he also surrendered five shells containing BB shot, being the same shells that he bought from the witness. The two shells found at the place of the homicide were of the same character of shell, and the wadding found on the ground came out of the BB shells. Perhaps it would have been better to have said it was a "proved fact" instead of a "conceded fact" criticised by the State's motion for rehearing. That is a small matter, however, to discuss in this opinion. There can be no question under this record that there were but two shots fired and that Fox fired those two shots. In this connection it may also be stated that appellant did not own a shotgun. This was shown by the evidence of his family who testified on the trial, and it was also shown by the witness that appellant owned none, and was in the habit of renting guns when he went hunting. And no witness showed that appellant had rented a gun, or had in his possession a gun at the time, or that he had purchased any shells, or had any shells, and his wife and children testified that he did not have any. While it is but a deduction from the facts, it might be suggested that if Fox had a gun and appellant had a gun, and they already had shells, it would be a little strange that Fox would wake up a man at midnight in order to make a purchase of shells. The writer is still of the opinion that it is a proved, even an undisputed fact in this record, that there were but two shots fired, and the evidence shows that Jim Fox fired both shots.

It is contended that the court was in error in holding that the evidence of the witness Odell should have been excluded on the ground that it was privileged communication. The original opinion so held. This quotation is made from the testimony of the witness Odell: "I am a lawyer, and understand my business here to be professional, or I should not have been here. I understand the object of Dr. Menefee seeking an interview in regard to professional matters. At the time I was discussing these matters I was doing it from the standpoint of a lawyer in giving him the best advice I could." It might be further stated that Mr. Odell had this conference with Dr. Menefee at Menefee's suggestion as his attorney in regard to a certain matter, and, as Mr. Odell says, he would not have been present conferring with Dr. Menefee except he understood he was being professionally called in consultation by Dr. Menefee.

The original opinion is also criticised with reference to the holding therein that the law on murder in the second degree should have been charged. With all due deference to the able counsel who represent the State, and for whose fairness and accuracy of judgment the writer entertains the highest regard, still we can not agree with them in this proposition. The evidence so far as appellant is concerned is entirely circumstantial. The circumstances attending the meeting even of Fox and deceased are not shown, what transpired at the time of the killing is unproved, outside of the killing, the place of the killing, and the hour of the night at which the killing occurred. It is evident from the facts in this record that Fox killed deceased on account of what deceased had said and done in reference to his, Fox's wife. Just what occurred between the parties at the time this record leaves in absolute darkness and obscurity; what may have been said between them, how Fox came to kill, whether it was after a demand from him to retract what he said, and a reiteration of what he had said and done; in fact, nothing is shown as to the meeting except as before stated, it was early in the morning about 3:30 to 4 o'clock. Whether Fox was following the advice of appellant to leave the town and go away and secure employment, and was en route to the depot is not shown, and that if he was the meeting was purely accidental; but the State assumed as an uncontroverted fact that Fox and appellant were together and laying in wait for Glasgow to come along at that particular point for the purpose of taking his life. The evidence is not as conclusive as the State would seem to think. It was known to appellant and Fox that Glasgow was an officer and on duty about the time, and that duty called him in and about the city limits during the night. Had they been hunting him for the purpose of killing him it was not necessary for them to wait at this particular point, especially in view of the evidence which tends to show that there was a different route that deceased at times followed in going home, and perhaps a shorter and more practical route; at least there was another route by which he did or could go home, and had they been waiting they perhaps would have gone to the point from which deceased would diverge in going one way or the other. But, however this may be, the facts are not conclusive nor certain, but they are left in doubt and mystery; the immediate facts are unknown and unproved. All assumption and presumption, when it comes to submitting issues of fact to the jury in the charge, must be favorably given in behalf of the accused. We deemed it unnecessary to cite the cases in the original opinion, and still deem it unnecessary. We cited Mr. Branch's Criminal Law in the previous opinion where the authorities are collated. The question is one so thoroughly settled that it is deemed unnecessary to cite the cases.

Another question with reference to the charge is this: The State seems to be of the impression that the evidence excludes every other theory except that appellant was present and a principal in the transaction of the killing, and that the killing was murder in the first degree. The evidence that way is far from certain and conclusive. Of course, if appellant was present, and he and Fox remained there at that church until three or four o'clock in the morning, and then deliberately shot and killed Glasgow, it would be murder in the first degree; but the evidence must make that so apparent that all other issues favorable to the defendant must be excluded. It would be but speculation to assume that the State's theory is correct. Appellant is not shown to be present by any positive evidence, and as we understand this record the State did not have any evidence before it to prove his presence closer than 12 or 12:30 o'clock at night through the mouth of the witness Sanders. He thought he recognized appellant near the church where the homicide occurred about 12 or 12:30 o'clock, and he then recognized him he says only by means of a match lighted and used in lighting a cigarette at something like 175 to 200 feet. The writer would suggest that it would be a little difficult to recognize a man at that distance at night by means of a lighted match. But it is unnecessary to discuss that as under any possible construction of the evidence, taking the time that Sanders saw appellant at 12:30 and the time of the homicide at 3:30 to 4 a.m., there were three hours' or more time with witnesses passing the scene of the homicide in the meantime without discovering the presence of anybody. This court nor should the trial court assume as conclusive under this state of case the presence of appellant at the scene of the homicide. If he was not present and had advised Fox to do the killing, and had furnished him the means, or had done other things that led Fox to do the killing, it might have brought him within the rule of being an accomplice, provided the facts were sufficiently cogent, yet it did not make him a principal.

It is also insisted that the court should not have sustained some of the objections of appellant to the introduction of evidence. What was said in the original opinion, we think, was correct. These matters we deem unnecessary to review. The State had the right to introduce evidence which showed motive, ill will, hatred and any of those matters which would tend to show a reason why appellant was engaged in the killing, but that would not be sufficient to show his presence, and while these matters of motive may be introduced legally and correctly, yet it is not permissible to go into all the details between other parties in connection with those transactions with which appellant was not connected. The rule, we think, is well established that on trial of the main case an investigation into collateral cases, all their details and circumstances, will not be permitted. There must be a line drawn somewhere, otherwise the main case would be diverted from trying the main issue charged in the indictment to other collateral matters not included in the case otherwise than incidental.

We do not care to review these matters again. We appreciate and commend the zeal of attorneys in the presentation of their side of the case, but this court is presumed not to enter into those matters, but to as fairly and impartially decide the issues involved as is possible for a court to do, and to hold as best we can the scales of justice in equipoise and yet firmly and legally. There is nothing in this record or in the motion for rehearing, in our judgment, which would justify the affirmance of this case, and the motion for rehearing does not contain sufficient matter, in our judgment, to justify us in setting aside the previous judgment of reversal.

The motion for rehearing is overruled.

Overruled.