Wyres v. State , 74 Tex. Crim. 28 ( 1914 )

Appellant has filed a lengthy motion for rehearing in which he reiterates each ground in the motion for a new trial. However, he has filed an argument in support of some of the grounds, and these only we deem it necessary to discuss, as the others were passed on in the original opinion, and while appellant contends we were in error in each of them, yet he cites no authorities in support of such contentions. However, he cites us to the case of Julius Kunde v. State, 22 Texas Crim. App., 65, which he claims supports his contention that the statement made by Bounce Baty while in jail under arrest should have been admitted in evidence. In the Kunde case it is held that it is permissible to show that another committed the crime, and this proposition of law we have never questioned, and do not now question it, where the inculpatory facts are such as are proximately connected with the transaction, by any legal and legitimate testimony, and if any legal and legitimate testimony had been excluded by the court tending to show that another and not appellant committed the offense, of course it would be error. But the mistake that appellant makes is that evidence rejected was legal evidence. In Kunde v. State, supra, it was held: "It was error to refuse to permit the defendant to reproduce the testimony of the deceased witness, E.T. Rhodes. By this testimony defendant proposed to show acts and declarations on the part of his codefendant, Taylor Kunde, occurring shortly prior to the murder, which acts and declarations tended strongly to show malice on the part of Taylor Kunde towards Drennon, deceased, and a motive on his part to commit the murder." This court followed that opinion in the case of Robertson v. State, 63 Tex.Crim. Rep., in holding that when a witness is dead his testimony at a former trial could be reproduced, and we think it is a sound proposition of law, and the case of Dubose v. State, 10 Texas Crim. App., 230, is also the law, and this decision has been followed by this court since it has been rendered. But the error in appellant's contention is that the statement that Baty made which he desired to have the witnesses testify to was made while Baty was in jail under arrest charged with this offense. When Baty is placed on trial would any one contend that this testimony would be admissible against him? We think not, for the statute prohibits it. Appellant in his argument insists that the statement was res gestae of the transaction, and if so, of course, it would be admissible, but in the record before us there is nothing to sustain this contention, and the court in approving the bill states: "The bill is allowed with the following explanation that the statement sought to be proved by the witness was made, if at all, long after the homicide, and while the said Bounce Baty was in jail under indictment for the same offense with which the defendant Buss Wyres is charged." Appellant criticises that part of the original opinion where we said, "Bounce Baty was at this time under arrest and in jail under indictment charged with this offense, and he was not competent to testify to these matters for appellant, as he, Baty, could not so testify," and said we are in error in stating that Baty was under indictment at this time. Appellant accepted the bill of exceptions, as approved by the court, which so stated, as shown by the quotation above, and in it the judge does affirmatively state that the statement was not res gestae of the transaction, was made "long after the homicide, and at a time when Baty was in jail and under indictment for this offense."

And when one accepts a bill thus qualified, under all the decisions, he is bound thereby. (Hardy v. State, 31 Tex. Crim. 289; Levine v. State, 35 Tex.Crim. Rep.; Brown v. State, 32 Tex.Crim. Rep..) Appellant also refers us to the case of Pace v. State, 61 Tex.Crim. Rep., 135 S.W. Rep., 379. In that case the appellant offered to prove by Bryon Kyle that he had a conversation with Cain in which Cain admitted that he did the killing. At the time Cain made the statement to Kyle lie was not under arrest, and had not been indicted for the offense, consequently the testimony was admissible as in the Kunde case, but neither of the cases are authority for the admission of a statement made by one in jail while under indictment for the offense. And on the other hand the statute expressly inhibits the admission of such testimony, as shown by the article of the Code and authorities cited in the original opinion.

Appellant also contends that we should consider the bill in regard to the change of venue, claiming that such bill presents the matter within the rule announced in the cases of Gallagher v. State, 55 Tex.Crim. Rep., 115 S.W. Rep., 46; Barnes v. State, 59 S.W. Rep., 882, and Randell v. State, 34 Tex. Crim. 43, 28 S.W. Rep., 953. In each of those cases the bills were filed in term time, consequently they nor either of them are in point in this case, the bill having been filed after the adjournment of court for the term. As said in the original opinion, the statute prohibits us from considering a bill on change of venue not filed during the term. Art. 634, C.C.P. See, also, Adams v. State, 35 Tex.Crim. Rep.; Kutch v. State, 32 Tex.Crim. Rep.; Smith v. State, 31 Tex. Crim. 609, and Gibson v. State, 53 Tex.Crim. Rep., and cases there cited. In the Gibson case it is said: "This is not only statutory, but it has been so often decided and enforced that it can not be longer said to be a debatable question."

The next question is that the court failed to charge on appellant's affirmative defense, and he argues at length that it is the duty of the court to so do. This is conceded, and the evidence of defendant raised only the issue that he did not do the killing, but that Bounce Baty and Dud Reed were the parties who killed deceased. The court instructed the jury: "If you believe from the evidence that the said John Richey was cut and killed by Bounce Baty and Dud Reed or by either of them and that the defendant had no connection with the killing as a principal, as that term is hereinafter explained, or if you have a reasonable doubt thereon, you will return a verdict of not guilty." And subsequent to this, the law as to who are principals was properly applied to the case.

The motion for rehearing is overruled.

Overruled.