Carpenter v. State , 98 Tex. Crim. 307 ( 1923 )

Appellant was convicted in the District Court of Cottle County of manslaughter, and his punishment fixed at two years in the penitentiary.

Appellant was a share-cropper tenant of deceased. Trouble and bad feeling existed prior to the day of the homicide. Appellant had a field of sorghum cane. Just before it was ready to cut for hay, he left the premises and was gone for some weeks and while away, deceased cut said cane. The men disagreed about payment for the cutting and deceased objected to the removal of division of the cane hay until the cutting was paid for. As part of the rental contract deceased furnished to appellant a wagon and team.

On the day of the homicide appellant and one McDonald with their wives and a child or two of each were removing part of the sorghum cane mentioned froth the field. They seem to have loaded one wagon with the cane and on this the two women and some children were leaving the field. The wagon in use by appellant and McDonald was forty or fifty yards from the one on which were the women, the latter being the wagon owned by deceased. About this time deceased came by and observed them in the act of removing the cane. After some words with appellant, deceased and his son drove down to where the other wagon was, and deceased there removed the pin from the doubletree of the wagon and took the taps off the rear wheels of said wagon and threw them in his own wagon which he then entered and started to leave the field. As deceased drove away appellant came rushing up to the wagon in which the women were and fired at deceased twice with a gun, the second shot taking effect in the head of deceased and killing him. Appellant claimed that just before he fired deceased put his hand in his pocket and that he thought deceased was going to kill him. The eighteen-year-old son of deceased who was with him at the time said that his father had nothing except his pocket knife in his pocket.

Appellant sought a continuance because of the absence of his wife. It was the third application. In such case it must be averred that the testimony desired from the absent witness can not be procured from any other source known to the accused. The truth of this averment addresses itself to the sound judgment of the trial court in passing upon the motion for new trial. In the instant case the facts desired from the absent witness consisted of statements alleged to have been made by deceased as he was taking the taps from said wagon. It appears from the record that Mrs. McDonald, the woman who was with the wife of appellant, was a witness for the defense and testified fully to the statements made by deceased at the time he took the taps from the wagon; also it appears that the twelve-year-old son of appellant was available as a witness on this point but he was not used by the defense; also that a son of Mr. McDonald nine years old was available, he, too, not being used. In view of these facts we conclude the refusal of the motion for continuance presents no error.

The trial court correctly refused to strike out, upon motion of appellant, the State's affidavit controverting the application for a continuance. There a case has been before continued by the accused because of the illness of a witness, the State may be permitted to traverse the allegation of a subsequent application by the defense and to support same by proof of the fact that the condition of the absent witness is such as that future attendance is improbable, and also support an allegation that there are other witnesses present from whom the same testimony can be obtained. Attaway v. State, 31 Tex.Crim. Rep.; Roquemore v. State, 54 Tex.Crim. Rep.; Lane v. State, 28 S.W. Rep., 202.

The court below ordered a special venire of seventy-two men and directed that they be drawn from the list of regular jurors prepared by the jury commissioners for that term. Some of the veniremen were summoned in one way and some another. All were present when the case was called for trial. This fact renders it unnecessary for us to discuss any irreguarities in the manner of service, — which question might become difficult had the juors not appeared. Brown v. State, 87 Tex.Crim. Rep.. Cottle County not being under the jury wheel law, there could be no objection to having veniremen drawn from men selected by the jury commissioners to serve as jurors for the term. Taylor v. State, 87 Tex.Crim. Rep.. That another special venire list was drawn from the same number of jurors so selected by the jury commissioners, presents no objection available to appellant.

No error was committed in allowing the son of deceased to testify that when shot, his father had nothing but a pocket knife.

Appellant's bills of exceptions Nos. 5 to 14 inclusive present his various objections to testimony of matters transpiring at times other than that of the homicide, the general theory of the objections being that same were prejudicial and harmful to appellant. Unless for some possible reason suggested by the record a harmful result may have been likely from the admission of testimony objected to as immaterial, irrelevant and prejudicial, a case should not be reversed for its admission. The conviction herein was for manslaughter with the lowest punishment affixed. By the evidence it is established without dispute that deceased after removing the taps from the wagon above referred to, had gotten into his wagon and was going away from the spot when appellant shot him. The only possible excuses or justification offered were, first the rage of appellant at the conduct of deceased, and, second, the fact that deceased put his hand to his pocket as testified to by appellant. The verdict of the jury reflects the fact that they concede to appellant that uncontrollable passion which reduces a homicide to manslaughter. The mercy of the jury caused them to give to appellant the lowest penalty. There is nothing causing us to entertain any belief that the jury were influenced to appellant's harm by any of the matters objected to in the bills of exception under discussion, and we conclude no error appears in any of them even if the matters objected to were subject to the complaints, which however we do not believe to be the fact.

The complaint that the court submitted murder to the jury in the charge, has no substantial foundation. The decision of such questions is for the jury. Doss v. State, 43 Tex. Crim. 551; Williams v. State, 90 Tex.Crim. Rep..

Finding no error in the record, the judgment of the trial court will be affirmed.

Affirmed.

ON REHEARING.