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WORD V. STATE

1175

of the court in proceeding the same. The de 15. WITNESSES 376 – CROSS-EXAMINATION fendant could not avail himself in the criminal -DIRECT EXAMINATION. trial of any admissions of the plaintiff in the Where a state's witness testified that accivil action, and, on the other hand, the jury cused committed the crime charged, and on in the civil action must decide upon the mere cross-examination accused sought to show that preponderance of the evidence, whereas in a the witness was taking an active interest in the criminal conviction they must be satisfied as case, it was not reversible error for the court to a party's guilt beyond a reasonable doubt. to permit the state on redirect examination to The same principles render a judgment in a show that the witness was interested in the civil action inadmissible in a criminal prosecu- case because accused had shot the witness. tion" (citing authorities).

[Ed. Note.-For other cases, see Criminal We do not deem it necessary to discuss Law, Cent. Dig. $8 836–839, 841, 843; Dec. more particularly all the bills in regard to Dig. Omw 376.] this matter, as the above general expression 6. CRIMINAL LAW Cm116642 REMARKS OF will indicate to the trial court what testi

PRESIDING JUDGE.

Where the court, in overruling an objecmony is admissible.

The judgment of the tion to a question asked a witness, stated that civil court has no binding effect upon the the evidence to be elicited was admissible to criminal court, and should not be admitted. show motive of the witness, but on the request In other bills appellant complains of questher the question or the answer, the remark of

of accused directed the jury not to consider eitions propounded by the trial judge, and re- the court was not reversible error. marks made by him during the trial of the [Ed. Note.-For other cases, see Criminal case. We are satisfied this will not occur Law, Cent. Dig. $$ 3114_3123; Dec. Dig. Om on another trial, and therefore do not deem 116612.] it necessary to discuss the bills presenting

Appeal from District Court,

District Court, Anderson this matter.

County; John S. Prince, Judge. The judgment is reversed, and the cause Hugh Word was convicted of murder, and remanded.

he appeals. Affirmed.

J. E. Rose, of Palestine, for appellant. WORD v. STATE. (No. 3781.)

C. C. McDonald, Asst. Atty. Gen., for the

State. (Court of Criminal Appeals of Texas. Nov. 3,

1915.) 1. CRIMINAL LAW Om 589 CONTINUANCE

HARPER, J. Appellant was convicted of GROUNDS.

assault to murder, and his punishment asDenial of continuance was not erroneous sessed at five years' confinement in the penwhere all the witnesses were present, and accused was not deprived of any testimony.

itentiary. [Ed. Note.-For other cases, see Criminal [1] Appellant contends that the court Law, Cent. Dig. $8 1315, 1319; Dec. Dig. Ou should have continued the cause for the fol589.]

lowing reasons: Appellant was in jail, and 2. CRIMINAL LAW Cm 923 NEW TRIAL had two criminal charges against him. ApGROUNDS-MISCONDUCT OF JURORS.

That the jurors during the trial discussed pellant's counsel states that in a conversaaccused's conduct in walking across the court- tion with the court and the district attorney room in an awkward, uncouth manner during the court had stated he would call the firstthe trial, and in laughing and smiling at jurors numbered case for trial, and if appellant in such a way as to call forth a discussion by the jurors, was not ground for new trial in the was acquitted in that case, and would make absence of any showing that accused was not bond in the second case, it could be conguilty of the conduct commented on by the tinued. The court says that all that was jurors.

said was: [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. 88 2238-2247, 2250; Dec. Dig.

"If appellant was not convicted in the first Om 925.]

case, and would make bond, he would not re

quire so strict a showing, but, if no bond was 3. CRIMINAL LAW 956 NEW TRIAL

made, he would not leave him in jail untried, GROUNDS-MISCONDUCT OF JURORS.

unless a strict showing for continuance was That a juror, after the conviction of accus-made." ed, stated to his counsel that half of the jurors said that, but for facts injected into the case as Appellant was acquitted of the first offense to the shooting by accused of a third person, on July 1st. On the 2d of July the court states: accused would have been acquitted, unaccom- He called this case for trial in the morning. panied by any affidavit of accused's counsel or of the juror, did not justify granting a new Appellant's counsel not being present, he trial.

had him called, and sent men to search for [Ed. Note.-For other cases, see Criminal him. Not being able to locate appellant's Law, Cent. Dig. 88 2273-2391 ; Dec. Dig. En counsel, he postponed the case until 2:30 956.]

in the afternoon. At that hour he again 4. CRIMINAL LAW Omm1111-BILL OF EXCEP-called the case for trial, and had the jurors TIONS-BYSTANDERS' BILL.

Where a bill of exceptions as qualified by take a seat in the jury box. That at this the court and a bystander's bill are filed, the time appellant's counsel came in with a bond court must consider the questions raised by the and asked that the case be continued. That bystander's bill.

he declined to do so unless a showing was [Ed. Note. For other cases, see Criminal Law, Cent. Dig. 88 2894–2896; Dec. Dig. em made. All witnesses being present, and ap1111.)

pellant not contending that he was depriv

ed of any testimony, the court did not err / times_after_he shot Mattie Word? Witness: in not granting a continuance.

Ans. Yes. Defendant: We ask the court to in[2] Appellant contends

contends that the court
that the

struct the jury not to consider either the ques

tion or the answer. Court: Yes; the jury will should have granted a new trial because not consider either the question or the answer his counsel alleges that after the trial Mr. just put and answered by the witness." Ben D. Jackson, one of the jurors, stated It is thus seen that the question and anin his presence and hearing that some of the swer were properly excluded at the time, jurors discussed the fact "that defendant and if the court did make the remark, and would walk across the courtroom in a very yet, when appellant's counsel requested the awkward, uncouth manner during the prog- exclusion of the question and answer, ress of the trial; that he would laugh and promptly instructed the jury not to consider smile at various members of the jury in such either, no error is shown. a way as to call forth a discussion of these After a careful consideration of each and facts." There is no allegation that appel- every question presented by the record, we lant was not guilty of such conduct, and if are of the opinion there is nothing prehe was guilty of it, and the jurors comment- sented that would justify a reversal of the ed on it, it would present no ground for a case. new trial.

The judgment is affirmed. [3] Appellant's counsel also says that Mr. Jackson told him "that half of the jury said that, but for the facts injected into the trial relative to the shooting of Ira Swanson,

MAY V. STATE. (No. 3726.) defendant would have been acquitted.” Ap- (Court of Criminal Appeals of Texas. Oct. 20, pellant's counsel does not attach his affidavit 1915. Rehearing Denied Nov. 24, 1915.) that such an occurrence took place, nor does 1. CRIMINAL LAW Ow598 – CONTINUANCE he attach the affidavit of Mr. Jackson. As

GROUNDS—DUE DILIGENCE. presented to us, we cannot say the court er- error to refuse a continuance on the grounds of

In a prosecution for seduction, it was not red in the premises.

absence of witnesses, where it appeared that [4] Appellant also has a bill in the rec- defendant was indicted in November, 1913, arord in which he complains Ira Swanson, a 1915, and defendant did not attempt to sub

rested in February, 1915, and trial set for May, witness for the state, on redirect examina-poena the absent witness until the day before tion, was asked the following question: his trial, since, under such circumstances, de“Isn't the reason that you are interested in fendant failed to show that he had exercised due

diligence. this case is because that Hugh Word shot

[Ed. Note.--For other cases, see Criminal you four times because you were a witness Law, Cent. Dig. $$ 1335–1341; Dec. Dig. Om against him in this trial?" Appellant says 598.) that before he could object the witness re 2. CRIMINAL LAW 608 CONTINUANCE plied, "Yes;" that appellant did then and

GROUNDS-AFFIDAVITS.

It was not error to refuse a continuance in there object and except to such question prosecution for seduction, where defendant failand answer, when the court remarked: “Ied to produce any affidavits that the absent think it admissible to show motive." The witnesses would testify as stated in his motion. court says he made no such remark, and, as Law, Cent. Dig. $$ 1350, 1364-1368; Dec.

Dig.

[Ed. Note.-For other cases, see Criminal qualified by him, would certainly present

Our 608.] no error, but appellant, while filing the bill 3. CRIMINAL LAW 956 – CONTINUANCE as qualified, also filed a bystander's bill, and

DISCRETION. the witnesses testify that the court did make Since a continuance in a criminal case is the remark, and prove up the bill as pre- not a matter of right, but is within the sound sented by appellant; consequently we must refuse a continuance and to overrule a motion

discretion of the trial court, it was not error to consider it.

for new trial as soon as filed, where defendant [5] The witness Ira Swanson was one of had two days after the verdict' in which he could the witnesses for the state who testified

secure the affidavits of absent witnesses. that appellant shot Mattie Word, his for- Law, Cent. Dig. $8 2373-2391 ; Dec. Dig. Om

[Ed. Note.-For other cases, see Criminal mer wife. In cross-examination of the wit- 956.) ness appellant had sought to show that the

Appeal from District Court, Callahan witness was taking an active interest in the

County ; Thomas L. Blanton, Judge. prosecution, and was therefore calculated

Will P. May was convicted of seduction, to be biased in his testimony; and under

and he appeals. Affirmed. such circumstances, if the proceedings took place, as contended in the bystander's bill,

Critz & Woodard, of Coleman, for appelit would present no reversible error.

lant. C. C. McDonald, Asst. Atty. Gen., for [6] However, we will add here that, in the State. addition to this bystander's bill, appellant, in the record, filed the stenographer's re

HARPER, J. Appellant was indicted, port, and in it appears the following:

charged with seduction, and when tried was "State: Isn't it because you are interested in convicted, and his punishment assessed at this case is that this same negro shot you four two years' confinement in the penitentiary.

Tex.)

MAY V. STATE

1177

[1] Appellant's counsel in his brief and I would so testify; no affidavit of the person oral argument before this court admitteil who told him in a casual conversation they that none of the bills of exception in the would so testify is attached, stating they record as qualified by the court, present would so testify. So it is made apparent error, unless it be the one in which he ex- that appellant did not know they would so cepted to the action of the court in over- testify, does not state they would so testify, ruling his first application for a continu- but states specifically he merely has been ance. He earnestly insists that this bill so informed, in a casual conversation, withpresents error, and has filed an able briefout giving the name of his informant. This on that question alone, and if diligence was is too vague and indefinite. In fact, the atshown and an allegation that the witnesses tendance of one of the witnesses whom he would testify as stated, perhaps it would says he was informed in the casual converpresent error. But does the application sation would testify that the reputation of show that diligence required under the law? Miss Quillin for virtue and chastity was bad Appellant admits he and Miss Effie Quillin was secured, and he refused and failed to had several acts of carnal intercourse in so testify, thus evidencing that the inforJuly and August, 1912. They both fix the mation appellant received in the casual confirst date as July 5, 1912, and that the last versation was not very reliable. act was perhaps the latter part of August, [3] Appellant says the trial court overruled 1912, when appellant left Callahan county. his motion for a new trial as soon as filed, By the testimony of both of them it is rea- and he had no opportunity to secure the sonably certain that he is the father of her affidavits of the witnesses. He had two baby, born May 7, 1913. The grand jury of whole days after verdict in which to file a Callahan county indicted appellant Novem- motion for a new trial, and if he had taken ber 13, 1913. The sheriff of Callahan county this time, if the witnesses were in the coundid not locate appellant until in February, ty, he could have secured the affidavits, if 1915, when he was arrested in Coleman coun- they would so testify, before filing his moty, and gave bond for his appearance in court tion. Or if he had not the means to make the in Callahan county in May, 1915. While trip, he could, in his motion, have set up the state contends he was a fugitive from that fact, and asked that process be issued justice, appellant contends that he had nev- for the witnesses, and that they be heard er been out of the state, did not know he on the motion. Had he done this, doubtless had been indicted until he was arrested, the court would have granted such prayer, and was not then and had not been avoid or if the court had not done so, it would ing arrest. And it may be that his conten- have shown an effort on the part of appeltion is correct. But it is apparent he was lant and faith in what he had been informed arrested in February, and while he says he in the casual conversation they would tesdid not then know he was indicted, and tify. He did not do this, and we have no inthought that only a complaint had been file formation they would so testify if a new ed against him, the slightest diligence would trial was granted. Appellant does not prehave disclosed that an indictment had been tend to know that they would do so, and apreturned by the grand jury and was pend- parently does not know the name of the pering against him. In fact, the bond he sign- son who informed him the witnesses would ed would have so informed him if he had so testify, because he does not give it in his read it. Notwithstanding he was arrested application for a continuance, nor in the in February, he apparently made no prepara- motion for a new trial. If there was any tion for his trial until he went to Callahan evidence that the witnesses would so testify, county in May, and did not have the subpoena there would be merit perhaps in appellant's issued for the absent witness until the eve contention, but as the record presents the ning before his case was called for trial next question, it is too indefinite for us to hold morning. It is true he says he was not made that the trial court abused his discretion aware of the facts he expects to prove by the in overruling the application for continuance, witnesses until that day, but if he had used and the motion for new trial based on that any diligence or effort, is it not reasonable to ground. A continuance is no longer, under presume that he could have ascertained such our law, a matter of right, but is addressed facts earlier if he had tried? At least the to the sound discretion of the trial judge; record does not disclose any effort on his and, when we are asked to review this discrepart to learn about such testimony or wit- tion, it ought to be made apparent by the recnesses.

ord that the witnesses would testify as [2] Again he does not pretend to have any alleged, or at least that appellant had good personal knowledge that the witnesses would reason to believe that they would so testify. testify to the facts he states. He says some The materiality of the testimony is not quesone informed him that the witnesses yould tioned, for if the witnesses would so testify, so testify in a casual conversation, without the testimony would be upon a material issue giving the name of his informant. Attached in the case, but the record discloses that apto his motion for a new trial is no affidavit pellant does not know they would so testify,

person whom he casually met, and the affida-casion when Will Williams bought the whisvit of such person is not attached to the mo-ky, a paper box that would carry twelve bottion.

tles of whisky. It is not stated, however, The judgment is affirmed.

that there were twelve bottles in it at the time that Williams bought this whisky. Williams testified that he did not see any other

whisky there at the time he bought it. He BRICE V. STATE. (No. 3784.)

says there was a box there, but he did not (Court of Criminal Appeals of Texas. Nov. 3, see any whisky. All that he saw was a pint 1915.)

of whisky that he bought of defendant for 1. CRIMINAL LAW 535 - EVIDENCE ConFESSIONS–CORPUS DELICTI.

which he paid 75 cents. The sheriff testified While the confession of an accused may that he recovered or came in possession of be used where the corpus delicti is established, some intoxicating liquors in a pasteboard box, yet it is inadmissible to establish the corpus a twelve-quart case. This was on the 31st delicti.

[Ed. Note. For other cases, see Criminal of May, and he found this whisky or got it at Law, Cent. Dig. $$ 1225, 1226; Dec. Dig. Om the old jail wagon yard in Clarksville, and 535.)

his recollection was that there were five 2. INTOXICATING LIQUORS 236-OFFENSES quarts of whisky in the box, and some old

- PURSUING BUSINESS OF SELLING INTOXI- whisky glasses. This witness does not conCANTS.

To warrant a conviction of pursuing the nect the defendant with that pasteboard business of selling intoxicating liquor in local box, nor does he undertake to do so. It may option territory, the state must prove at least or not have belonged to appellant. The two sales.

confession made to Mr. Lipscomb was to the [Ed. Note. For other cases, see Intoxicating effect that appellant got a shipment of twelve Liquors, Cent. Dig. $$ 300–322; Dec. Dig. Om 236.]

quarts of whisky on 31st of May, and dis3. INTOXICATING LIQUOR'S Cm 236OFFENSES posed of all but five; that he "sold Will -BUSINESS OF SELLING INTOXICANTS IN Williams one pint of the whisky; and let LOCAL OPTION TERRITORY.

In a prosecution for pursuing the business J. T. Kilgore have one pint of the whisky; of selling intoxicating liquors in local option and Collier Hemingway got one quart of territory, evidence held insufficient to warrant a the whisky; and Rufus Davis got one quart conviction.

of the whisky; and I sold three or four [Ed. Note. For other cases, see Intoxicating other different parties one quart each of the Liquors, Cent. Dig. 88 300-322; Dec. Dig. Ons whisky. I didn't know the parties to whom 236.]

I sold." Appeal from District Court, Red River [1-3] Now this confession does not aid the County; Ben H. Denton, Judge.

state particularly in its case, even if it was J. Brice was convicted of pursuing the oc- admissible testimony. The confession of a cupation of selling intoxicating liquors in defendant may be used where corpus deliclocal option territory, and he appeals. Re- ti is shown to connect the defendant or parversed and remanded.

ty making the confession with that corpus Travis T. Thompson, of Clarksville, for ap- delicti, and it has been held that the confespellant. C. C. McDonald, Asst. Atty. Gen., sion may be used to aid in making out the for the State.

corpus delicti, as in the Kugadt Case, 38

Tex. Cr. R. 694, 44 S. W. 989, and for other DAVIDSON, J. Appellant was convicted authorities see Branch's Crim. Law, $ 235. of pursuing the occupation of selling intox- It has been held that the confession alone icating liquors in local option territory, his cannot prove the crime. The corpus delicti punishment being assessed at two years' con- must be proved, and the confession may be finement in the penitentiary.

used to connect the party with it. This has The indictment, after alleging the pursu- been thoroughly settled in a numerous line ing of the business, set out the names of two of cases in Texas. Hill v. State, 11 Tex. parties to whom sales were made, to wit, App. 132, is one of the earlier cases. ConWill Williams and J. T. Kilgore. Proof is fession alone is insufficient to support a conreasonably certain as to the sale to Williams. viction. See Branch's Crim. Law, $ 235. Kilgore was not produced as a witness. Ap- Take the confession of appellant out of pellant made a confession to the district the case, and there is no testimony to show attorney after he had testified before the that he sold whisky to anybody except Wilgrand jury. The confession may be treated liams. The corpus delicti in this case is not as indicating that he had sold whisky to J. shown until evidence of a sale has been T. Kilgore. It is rather indefinite. He also shown by somebody. The same may be said mentioned the names of two other parties as to the other parties named in the confeswho were not named in the indictment. This sion. They, however, are not named in the is the state's case outside of the fact that | indictment; but if they had been the state defendant is shown to have been connected could not prove the corpus delicti or crime with a shipment of whisky, by one of the by the confession. There must be evidence witnesses; that is, that he had, on the oc- independent of the confession.

Tex.)

WELBORN V. STATE

1179

derstand to be the unbroken line of authority, ant contended that such charge was erroneous, in Texas. The Hill Case, supra, was fol- as limiting his right to defend himself against lowed in two cases reported in 40 Tex. Cr. R. they had formed a conspiracy to injure him.

only if (White v. State, 40 Tex. Cr. R. 370, 50 S. W. He also objected that the portion of the charge 705, and Sullivan v. State, 40 Tex. Cr. R. relative to an assault on defendant by decedent 639, 51 S. W. 375); also in one case in 50 with his fist deprived defendant of any right to

defend himself against an unlawful attack upon Tex. Cr. R. (Dunlap v. State, 50 Tex. Cr. R. him by decedent alone. Held, that such charge 504, 98 S. W. 845). We therefore are of was erroneous as indicated. opinion the state has not made out its case. [Ed. Note.-For other cases, see Homicide, The state must prove, not only the follow-Cent. Dig. $8 614, 616-620, 622-630; Dec. Dig

On 300.] ing of the business, but must prove at least

4. HOMICIDE 116 SELF-DEFENSE. two sales, and this must be done according to the rules of evidence and law, and as a jury's, as they subsequently see a homicide,

It is defendant's viewpoint, and not the prerequisite to that it must be shown that from which the appearance of matters, as giving the party was following that business, and defendant reasonable cause to believe that he in pursuing that business made two sales ;

was in danger of injury, is to be estimated.

[Ed. Note.-For other cases, see Homicide, otherwise the state has not made a case.

Cent. Dig. $$ 158-163; Dec. Dig. Ow116.) The facts do not justify this conviction as presented by this record, and the judgment Appeal from District Court, Houston Countherefore will be reversed, and the cause re ty; John S. Prince, Judge. manded.

Dick Welborn was convicted of manslaughter, and he appeals. Reversed, and cause re

manded. WELBORN v. STATE. (No. 3739.)

C. McClain, John I. Moore, of Crockett, (Court of Criminal Appeals of Texas. Nov. and N. B. Morris, of Palestine, for appellant. 3, 1915.)

C. C. McDonald, Asst. Atty. Gen., for the 1. HOMICIDE 116-SELF-DEFENSE.

State. Where defendant shot and killed decedent when the latter attacked him, because, from his own viewpoint, he was in danger of death DAVIDSON, J. Appellant was allotted or serious bodily injury, he had a right to shoot four years in the penitentiary for manslaughuntil he relieved himself of the impending dan

ter. ger, whether other parties, friends of the decedent, had anything to do with the trouble or In a general way, without being prolix, the not, or whenever they came into the difficulty. evidence shows that some 15 years or such

[Ed. Note. For other cases, see Homicide, matter before this unfortunate difficulty apCent. Dig. $S 158-163; Dec. Dig. Om 116.]

pellant was charged with killing the father 2. HOMICIDE 110_SELF-DEFENSE.

of the deceased. For this he was acquitted, Where defendant, in a prosecution for man- and on this trial he testified he did not kill slaughter, was down, and decedent and his friends were beating 'him, when a pistol was the father of the deceased, Marshall Engfired, and defendant was shot, he had the right lish; that he did not even have a fight with of self-defense to shoot to defend himself from him. The theory of the state was that, appelthe attack of all.

[Ed. Note. - For other cases, see Homicide, lant having been indicted for the killing of Cent. Dig. 88 140-142; Dec. Dig. Om110.]

the father of Marshall English, and because 3. HOMICIDE Om 300 - TRIAL-INSTRUCTION-perhaps he may have been guilty of that ofSELF-DEFENSE.

fense, he therefore wanted to kill, and did Defendant was convicted of manslaughter. kill, Marshall English. A Mr. Pluncket was His evidence tended to show that since he had teaching a singing school in the community been charged with killing decedent's father some years before there had been bad blood between where the Englishes resided, and also in him and decedent, and that, when he attended a the community where the defendant resided. singing school, decedent, while walking by him, These places were something like seven miles struck him in the face, precipitating a fight, in which decedent's friends joined, rendering it apart. Just before the killing Pluncket was necessary for defendant to shoot in self-defense. in defendant's community, and invited the The state's evidence tended, on the contrary, people there generally, including the defendto show that defendant struck decedent in the ant and his family, to attend the singing face and shot him before he himself was attacked. The court charged in part that, if de- school in the English community on a parcedent and his friends had formed a conspiracy ticular day, which invitation defendant and to kill defendant, or seriously injure him, and his family accepted, and attended that meetbegan the difficulty, or if it reasonably appeared ing. It seems to have been the closing exerto defendant they were about to begin the difficulty, then defendant had the right to make cises of that singing school. There were the attack and kill the decedent, but that, if several members of the English family presthe decedent began the difficulty by assaultingent at the time of the homicide, but were not defendant with his fist, and defendant shot him members of either singing school, nor had before any one else interfered he was guilty of members of either singing school, nor had manslaughter, while if friends, acting with they attended either. When appellant was decedent, attacked defendant, or, from his stand on his way to the singing school, where the point, it reasonably appeared to him that they difficulty occurred, there is evidence tending were about to attack him, and in view of all the circumstances, including decedent's assault. to show that one of the English boys saw aphe killed decedent, he was not guilty. Defend pellant and his family. The singing school

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