Thurmond v. State , 27 Tex. Ct. App. 347 ( 1889 )

Hurt, Judge.

This conviction is for murder in the second degree, with fifteen years imprisonment in the penitentiary assessed as punishment.

The indictment was presented in the district court of Victoria county. That court, of its own motion, sent the case to De Witt county. After this order was made, but on the same day, appellant moved to vacate it, and requested the court to send the case to some other county, upon the ground that there existed in De Witt county a combination of influential persons against him, etc. This motion was overruled and appellant excepted.

In this there was no error. The change of venue being made by the court on its own motion, and not at the request of the appellant, when the cause was called for trial in De Witt county, if there existed any ground for a change of venue from that county, appellant could bring it forward; he was not deprived of this right by the order made in the first instance.

The witness Brown testified to confessions of appellant, The State introduced several witnesses who swore that his reputation was good. Appellant objected on the ground that the witnesses did not qualify themselves to speak to his reputation, etc. The facts were that the sustaining witnesses for years lived in the same neighborhood with Brown, and so lived until eighteen months before the trial, at which time Brown moved to Victoria. Under these, facts the witnesses were competent to speak to the reputation of Brown, notwithstanding he had moved out of their neighborhood and had been in Victoria for eighteen months.

We also hold that Wertheimer, Ed Sitterlee, Cahill, and Louis Sitterlee show themselves competent to speak to the character of Albrecht.

Appellant’s sixth assignment is: “That the court erred in failing to instruct the jury upon the law governing impeaching testimony.” We do not think, unless it be under extraordinary or peculiar circumstances, that it would be necessary or even proper for the court to charge the jury upon this matter. Such a rule was announced in Henderson’s case, 1 Texas Court of Appeals, 432, but the rule has never been enforced indiscriminately, and its correctness as a general one is, to say the least of it, questioned in Rider’s case, 26 Texas Court Appeals, 334.

The witness Albrecht swore that he saw the killing j that Owens, and not appellant, shot and killed deceased, and that appellant was not present when the killing occurred. The State proved by several witnesses that Albrecht’s character for truth was bad. Appellant offered to prove that, on the examining trial and at other times, he swore to the same facts. Objection by the State was sustained, and defendant reserved his - bill. In this there was no error. (1 Whart. Ev., 570, 571.) Williams v. The State, 24 Texas Court of Appeals, 637, is not in point.

The eighth assignment is that the court erred in failing to instruct the jury that, if they believed that Owens killed deceased, or if they had a reasonable doubt whether or not Owens killed deceased, they should acquit defendant. The cases cited in support of this proposition are not in point, except Black v. The State, 1 Texas Court of Appeals, 368, and in that case the charge was requested and refused. In King v. The State, 9 Texas Court of Appeals, 515, it is held that if the reasonable doubt is applied to the whole case, that will suffice,

Hinth assignment: “The court erred in failing to charge all the law relating to the necessity of corroborating a witness who wa,s an accomplice.” The court’s charge upon this subject was full, correct and applicable.

The tenth assignment is that the court erred in charging the jury “that they might convict defendant if they believed from the evidence that the witness Owens killed deceased, and that defendant was present, and, knowing the unlawful intent of Owens, did aid him by act or encourage him by word or gesture in the commission of the offense.” The objections to this charge are, first, that there is no allegation by the State of this state of facts. Answer to this: None were required. Second. That there was no evidence warranting this charge. Answer: There were cogent facts demanding this charge.

Opinion delivered March 16, 1889.

Eleventh assignment: ‘‘The court erred in refusing to give the following at the request of defendant: ‘You are further instructed that, if you believe from the evidence that the witness Owens was testifying to save himself from punishment or moral obliquy of guilt, then his testimony can not be convicted upon, unless corroborated as the evidence of an accomplice.’”

There was no error in refusing this charge. In fact, the charge of the court is correct in every particular, being a clear and pertinent application of the law to every phase of the case.

There was no error in overruling the motion for new trial. The witness Owens was very strongly corroborated by the attending circumstances, as well as by the testimony of several witnesses to distinct facts, quite corroborative in their character.

We have found no error in the matters complained of by appellant, nor any other for which the judgment should be reversed, and it is affirmed.

Affirmed.