Ex parte HILL. (No. 4966.) 1. BAIL 43-HOMICIDE-RIGHT TO BAIL"EVIDENT." Under Const. art. 1, § 11, providing that all prisoners shall be bailable by sufficient sureties unless for capital offenses when the proof is evident, the word "evident" means that unless it is clear not only that accused is guilty, but that the jury, if they enforced the law, would probably assess capital punishment, accused is entitled to bail. [Ed. Note. For other defintions, see Words and Phrases, First and Second Series, Evident.] 2. BAIL 49-HOMICIDE-RIGHT TO BAIL. In prosecution for murder, evidence held not such as to warrant denial of bail. Appeal from Criminal District Court, Travis County; James R. Hamilton, Judge. ⚫ John W. Hill, under indictment for murder, was refused bail, and he appeals. Reversed, and bail fixed. Martin & McDonald, W. D. Caldwell, and Warren W. Moore, all of Austin, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State. MORROW, J. The relator, under indictment for murder, was refused bail, and prosecutes this appeal. Omitting any comment on the facts, and stating only enough of the evidence to indi cate the environments of the transaction, we find from the record presented that there is evidence that both the deceased and appellant were officers authorized to carry arms, that a short time, from one-half to threequarters of an hour, before the homicide the deceased assaulted appellant in the Driskell Hotel at Austin, and during the progress of the assault drew his pistol and struck appellant a blow on the head; that in the affray the deceased received an injury to his finger; that he went to the office of a doctor several blocks from the Driskell Hotel and had the wound dressed; that appellant walked up Congress avenue, the main street of the city, and at a point about four blocks from the Driskell Hotel appellant shot and killed deceased. We gather from the evidence that at the time of the homicide deceased had just turned the corner from one of the streets leading into Congress avenue and started south, and that appellant had stopped a moment before in front of a news stand and cigar store a short distance south from the corner mentioned. The keeper of the store testified that after he and appellant had exchanged a few words he saw appellant draw his pistol and shoot several times, and, turning, saw the deceased fall. Another witness said that while across the street he heard a shot, wheeled, and saw a man standing near the corner; after a very short interval he heard another shot, and saw the man apparently in a sitting position with both hands on his stomach, apparently going down gradually; that the firing continued, and he saw a flash and puff of smoke from the man described, who immediately thereafter collapsed and rolled on the sidewalk; that all occurred suddenly, covering a very short time; that four shots came from the south, and one from the man who was killed, who was identified as deceased named in the indictment; that immediately after deceased fired he saw a pistol fall from his hand; that deceased's pistol was examined, and found to have been fired one time. A witness who was assistant game warden testified that he met deceased a few days before the homicide, and was asked by him if appellant was still deputy, and expressed the wish that the six-shooter should be taken off of him, and said, "If you don't, he and I cannot stay in the same town with a sixshooter." That witness said he declined to deprive appellant of the six-shooter, and communicated to him the conversation prior to the difficulty at the hotel. [1, 2] Article 1, § 11, of the Constitution provides: "That all prisoners shall be bailable by sufthe proof is evident.” ficient sureties, unless for capital offenses when "Evident" has been defined as "plain, clear obvious." Ex parte Boyett, 19 Tex. App. 45. Mr. Branch states the rule as follows: The exception is 'when the proof is evident' that "The rule is 'all prisoners shall be bailable.' not only the accused is guilty, but that the jury will, if they properly enforce the law, probably assess capital punishment, this conclusion to be reached by the well-guarded and dispassionate judgment of the court or judge passing upon the question." Tested by this rule, which is supported by the decisions of this court, we believe that the trial court was in error in holding that appellant was not entitled to bail. Cases in point are Ex parte Smith, 23 Tex. App. 125, 5 S. W. 99; Ex parte Russell, 71 Tex. Cr. R. 377, 160 S. W. 76; Ex parte Stephenson, 71 Tex. Cr. R. 380, 160 S. W. 77, and cases cited. A reversal of the judgment of the trial court refusing bail is ordered, and appellant is hereby granted bail in the sum of $6,000, upon the execution of which, with sufficient sureties, he will be discharged pending the trial of this case on its merits. CARPENTER v. STATE. (No. 4763.) (Court of Criminal Appeals of Texas. Feb. 27, 1918. Rehearing Denied March 27, 1918.) 1. CRIMINAL LAW 1092(9)—APPEAL-EXTENSION OF TIME FOR FILING BILLS OF ExCEPTIONS. Under Code Cr. Proc. 1911, art. 845, relating to the time for preparing and filing statement of facts and bills of exception and the extension of such time, the limit to which extensions may be made is a total of 90 days after adjournment of the term. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 2. CRIMINAL LAW 1092(8)—APPEAL-TIME | bills of exceptions and to cause them to be FOR FILING BILLS OF EXCEPTIONS. The term at which an appellant in a murder case was tried ended April 13th. On that day the court allowed 60 days for the filing of bills of exceptions and the statement of facts and on the day of the expiration thereof allowed 30 days additional which expired July 12th. On July 10th, which was two days prior to the expiration of 90 days from the adjournment of the term, the statement of facts and bills of exceptions were delivered to the trial judge, who filed the statement on July 16th and the bills of exceptions on July 21st, having granted an additional extension of 10 days from July 10th. The statement of facts contained 144 pages and the bills of exceptions 30 pages. Held that, no sufficient diligence having been shown, the statement of facts and bills of exceptions would not be considered, although where an appellant is diligent he will not be made to suffer in consequence of the fault of others. filed in the time required by law, he will not be made to suffer the consequences of the faults of others. George v. State, 25 Tex. App. 229, 8 S. W. 25; Vernon's C. C. P. p. 826, and cases cited. Appellant insists that this rule should inure to his benefit under the circumstances of this case. The correctness of this view depends upon the facts as disclosed by the record. Looking to these it appears that when the 60-day order expired the stenographer's transcribed report of the evidence was in the hands of the leading counsel for appellant. This affirmatively appears in the application for an additional extension filed by appellant June 10th. pages of typewritten matter, and the bills of The statement of facts, containing 144 exceptions, containing about 30 pages, were Appeal from District Court, Denton Coun- placed in the hands of the district judge 30 ty; C. F. Spencer, Judge. days after this application was made, being Ernest Carpenter was convicted of murder, 28 days after the order for an additional exand he appeals. Affirmed. Sullivan & Hill and A. S. Baskett, all of Dallas, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State. MORROW, J. Appellant's conviction was for murder and his punishment assessed at seven years' confinement in the state penitentiary. The state, through the assistant attorney general, has filed a motion to strike out the statement of facts and bills of exception. The term at which the trial took place ended April 13, 1917. The statement of facts was filed July 16th and the bills of exception July 21, 1917, both more than 90 days after the end of the term. The court on April 13th allowed 60 days, which expired June 12th, and on that day allowed 30 days additional, which expired July 12th. On July 10th another extension of 10 days was ordered, and before the expiration of this last-named 10 days the document was filed. Appellant, answering the motion, says that on July 10th, which was two days prior to the expiration of 90 days from the adjournment of the term, the statement of facts agreed to, bearing the agreement of the attorneys, was delivered to the trial judge, and at the same time the bills of exception were delivered to him, and that the trial judge on July 16th, approved and filed the statement of facts without correction, and on the 21st the bills of exception with modification on two of them only. [1] The power of the trial court to extend the time in which bills of exception and statement of facts may be filed is controlled by article 845, C. C. P., and the limit to which the extension may be made is a total of 90 days after adjournment. This has frequently been decided. Roberts v. State, 62 Tex. Cr. R. 7, 136 S. W. 483. his [2] When an appellant is diligent in efforts to secure a statement of facts and tension of 30 days was made on June 12th. At the time they were placed in the hands of the judge there remained 2 days within which they could be filed under the law. Appellant insists that it was possible within these 2 days for the trial judge to have examined, approved, and filed the papers, and that it follows therefrom that appellant is not chargeable with the fault; and in this connection says that the 10 days further extension of time by the judge on July 10th was for the convenience of the court, and that this appears from the order. We do not understand the record to be susceptible to this construction. It appears therefrom that on July 10th appellant made an application for a further extension of 10 days, and that thereafter the court entered an order in the following terms: "On this the 10th day of July, A. D. 1917, Ernest Carpenter to extend the time for filing came on to be considered the application of statements of fact and bills of exception in said cause, and said application having been considered and good cause found for such extension, and it appearing to the court that an appeal has been taken from the judgment rendered therein and that the statement of facts and bills of exceptions because they are so voluminous cannot be filed within the time heretofore granted by this court for such purpose, it is therefore ordered by the court that the said Ernest Carpenter shall have 10 days from the 11th day of July, 1917, in which to prepare, have filed, and approved statements of fact and bills of exception in this cause." The exception to the rule requiring the disregard of bills of exceptions and statement of facts filed after the time permitted by law is predicated upon the showing to this court of the absence of laches on the part of appellant. This is the view expressed by this court in an opinion by Judge Hurt in George v. State, 25 Tex. App. 242, 8 S. W. 26, from which we quote as follows: "When a statement of facts is filed after these times, and the party tendering or filing the same shall, to the satisfaction of this court, show that he has used due diligence to obtain the approval and signature of the judge thereto, and to file the same within the time prescribed, to wit, in term time, or within 10 days after adjournment, and that his failure to file the same in said time is not due to the fault or laches of said party or his attorney, and that such failure was the result of causes beyond his control." This rule has been redeclared and followed in a number of cases listed in Rose's Notes on Texas Reports, vol. 5, p. 674. In many of these cases the character of diligence which must be shown is discussed by this court. Illustrating these views we take the following quotation from Riojas v State, 36 Tex. Cr. R. 185, 36 S. W. 268: "Appellant presents to this court a bill of exceptions to the admission of certain evidence, signed and approved by the judge and filed after the expiration of the term. Accompanying the bill is the following explanation by the judge: "This bill of exceptions was handed me within the time prescribed by law, and during the term of the court at which the case was tried, but was in some manner misplaced, and it is a fact that the exception to the admission of the testimony was reserved by the defendant, through his counsel, at the time of the admission of the same; and the clerk of the district court of Atascosa county is here now ordered to file the same as part of the record in this case, and transcribe same, making a certified copy of same, and all indorsements thereon, and forward same to Austin as a part of the transcript in said cause.' This bill cannot be considered. While it seemingly was neglect on the part of the judge not to approve and file the bill of exceptions, it was the duty of counsel to follow up his bill, and see that it was approved by the judge during the term, and filed with the clerk. This is statutory. See George v. State, 25 Tex. App. 229 [8 S. W. 25]; Exon v. State, 33 Tex. Cr. R. 461 [26 S. W. 1088]." This interpretation of the rule has been approved in numerous instances, notably Stanford v. State, 42 Tex. Cr. R. 345, 60 S. W. 253; Pollard v. State, 45 Tex. Cr. R. 124, 73 S. W. 953; Sullivan v. State, 62 Tex. Cr. R. 412, 137 S. W. 700. It is apparent from the authorities cited that the privilege of this court to consider a bill of exceptions or statement of facts filed after the time is not to be arbitrarily exercised, but to be brought into operation only in cases where proof is made satisfactory to this court that the delay was not contributed to by the laches of the appellant. This has not been done in the record before us, and without violence to the practice long adhered to and often declared, we cannot, in the present instance, overrule the state's motion to disregard the documents filed after the time authorized by law. certifies, in open court, the neglect of one of the Where exceptions of defendant to the refus- APPEAL 4. CRIMINAL LAW 1092(16) Where papers are in the record, and were not presented to the clerk for filing within proper time, but after the time had elapsed in which they should have been filed, that fact can be shown. 5. CRIMINAL LAW 1092(16)-APPEAL-EXCEPTIONS-FAILURE OF CLERK TO PUT FILE MARK ON. Where requested instructions refused by the trial court are shown to have been indorsed by him as refused on a particular day at the time of trial, the Court of Criminal Appeals will take the date as correct, and the mere fact of the clerk's having failed to put his file mark on the papers at that time does not affect the legality of the filing of the exceptions. On the Merits. 6. INDICTMENT AND INFORMATION 159(4)— defendant's request, the court ordered the indictIn a prosecution for perjury, where, at ment changed to omit the expression "alias High Pockets," defendant having been indicted as Ed Roberts and the alias, but a pencil or pen used defendant had a right to have that done when in erasing the alias did not fully obliterate it, he was called upon to answer the reading of the indictment, as he had a right to plead under the indictment changed to conform to the name whatever name he thought proper, and to have he gave. 7. PERJURY 32(1)—EVIDENCE. In this state of the record the judgment of 8. CRIMINAL LAW 518(1) the lower court is affirmed. PRENDERGAST, J., absent. ROBERTS v. STATE. (No. 4837.) (Court of Criminal Appeals of Texas. Feb. 20, 1918. On the Merits, March 6, 1918.) 1. BAIL 70-RECOGNIZANCE ON APPEALNEGLECT OF PROPER ENTRY. Where defendant did what he could to have a recognizance, and entered into it, as the judge In a prosecution for perjury, where defendant was not present at the first difficulty, but claimed only to have been present at a second tified to what he saw, the details of the first transaction, when the killing occurred, and tesdifficulty were inadmissible against defendant. EVIDENCE CONFESSION-INCRIMINATING STATEMENT. In a prosecution for perjury committed by testimony on writ of habeas corpus for bail in a homicide case defendant having been arrested himself for the homicide, or as having a guilty participancy in it, testimony that while under arrest defendant denied any knowledge of the shooting, and his presence at the time and place. was inadmissible against him, as a statement made without warning and without writing. though he testified in the habeas corpus proceedings that he witnessed the difficulty between the homicide and deceased, though the testimony was not a confession with reference to the hom For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes icide, and though defendant was not telling the, es it as an exhibit to the motion to dismiss, truth about the matter in the homicide case. 9. CRIMINAL LAW 518(2) EVIDENCE CONFESSION IN CUSTODY. To exclude defendant's confession or incriminating statement, detention, legal or illegal, is sufficient, and it is not necessary that a complaint or indictment be filed to constitute the basis of the arrest. 10. CRIMINAL LAW 351(3) FLIGHT. EVIDENCE In a prosecution for perjury committed on writ of habeas corpus for bail in a homicide case, evidence as to defendant's evasion of the process of the court to bring him in as a witness on the trial for the homicide was not admissible against him on the theory that he was a fugitive, though if defendant had fled to avoid the indictment and trial for perjury the fact might have been shown in evidence. 11. WITNESSES 344(4) CREDIBILITY SHOWING OF BUSINESS. In a prosecution for perjury, defendant was entitled to ask and obtain from a state's witness the business in which he was engaged, or the calling or occupation he pursued, to affect his credibility by showing that he was in the employ of a disorderly house. 12. PERJURY TIONS. 37(2)-INSTRUCTION-DEFINI In a prosecution for perjury, the trial court on request should have given a special charge defining the words "willfully" and "deliberately" in connection with perjury. 13. PERJURY 37 (3)-EVIDENCE - PROCEEDINGS RESULTING IN PERJURY-LIMITATION: In a prosecution for perjury, where the state introduces the proceedings in the trial on which the perjury was committed, if the result of such former trial was adverse to the testimony of defendant charged with perjury, the court must limit the effect of the evidence; otherwise such a charge is unnecessary. showing that the recognizance was properly entered. When this is done, the clerk will [2-5] There is also a motion to "strike out" some exceptions of appellant to give certain requested instructions, on the ground that the clerk certifies they were filed back by order of the court. Just what he means by this is not explained. The trial was had on August 3d. When these charges were presented and exceptions taken to their refusal, it was on the 3d of August. Twentyeight days later the motion for new trial was overruled. The clerk certifies these Appeal from District Court, Bexar Coun- matters were ordered filed back. ty; W. S. Anderson, Judge. Ed Roberts was convicted of perjury, and he appeals. Motion to dismiss denied, and judgment reversed, and cause remanded. J. Ed. Wilkins, of San Antonio, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State. DAVIDSON, P. J. Appellant was convicted of perjury, and allotted 'two years' confinement in the penitentiary. [1] Motion is made by the Assistant Attorney General that the appeal be dismissed because appellant's recognizance was not entered properly upon the minutes in the trial court. The matter is in confusion as to whether it was or was not so entered. The transcript contains a recognizance. The state attacks the verity of this, and says as a matter of fact it was not so entered. The judge certifies, as does the clerk, in addition to the record, that defendant and his sureties came into open court and were duly recognized in the amount fixed by the district judge. The only question presented from this phase of the motion is that this recognizance was not carried forward into the regular minutes of the term. The clerk certifies to his "rough minutes," and attach If it is meant by this that the papers were presented to the judge at the time of the trial within the terms of the law and refused, as they show upon their face to have been, and the clerk neglected to put his file mark upon them at that time, it would not be filing these papers back to place the file mark on them as of August 3d. They were in fact presented to the court and became papers of the case at the time, and were deposited with the papers and the clerk. That was a sufficient filing, and the order of the judge instructing the clerk to place his file mark as of that date would not be a filing back. This would be but supplying an omission of the clerk and not filing back. If there is any contest insisted upon about this matter, the real condition of things should be made to appear by proper order of the court. Contests over matters of this sort by motions and affidavits and statements are not to be encouraged. If, as a matter of fact, the papers were not presented to the court at that time, the court's certificate can show that fact. We understand it to be the rule that where papers are in the record, and were not presented to the clerk for filing within proper time, but after the time has elapsed in which they should be filed, that fact can be shown. Where requested trial. instructions refused by the court are shown | Pockets. After it had been erased from the to have been indorsed by him as refused on indictment this should not have occurred in August 3d, at the time of the trial, this the charge. This will not occur upon another court would take that as correct. The mere fact of the clerk failing to put his file mark on it at that time would not affect the legality of the filing of the exceptions. This motion as presented to strike out these papers will not be granted. The clerk of this court will issue the proper order of this court to the trial court to enter upon the minutes of the trial court the recognizance as entered into, and to at once forward a certified copy of said recognizance. On the Merits. [7] In order to review some of the bills of exception a brief statement of the trouble between Way and Moglia, in which the elder Moglia lost his life, will be necessary, as the prosecution for perjury grew out of that transaction, or rather the testimony on writ of habeas corpus of Way for bail. Way nad gone into a saloon owned by Moglia, and had taken a drink. After so doing he sat in a chair and went to sleep. After waking he missed a piece of jewelry, and called Moglia's attention to the fact, and demanded its On a former day of the term there was an return. This brought a difficulty in which order entered of record postponing the trial hard words ensued, and the elder Moglia of this case until a recognizance could be became very much offended at his son being had properly in the trial court for the rea- charged with theft. This charge by Way sons stated in the opinion awarding the post-seemed to have been directed against young ponement. This matter has been properly Moglia, and the father, who later became the attended to in the trial court, and a proper deceased, interfered and expressed great inrecognizance is now before the court, which dignation that his son should be charged with attaches the jurisdiction of this court, and such theft. Two or three hours subsequent the case will be disposed of on the record. to this Way appeared in the saloon, and the Appellant was convicted of perjury; his pun- difficulty occurred in which the elder Mogishment being assessed at two years' con- lia was killed. The contention of Way on finement in the penitentiary. the writ of habeas corpus, and the truthfulness of which had to be overcome in order to make appellant guilty of perjury, was that young Moglia started towards the north end of the counter to get his pistol and Way began shooting. Appellant swore upon the The allegation upon which the perjury is based, in substance, is that appellant swore on a habeas corpus hearing in a homicide case in which Way was charged with killing Louis Moglia, Sr., that before Way fired the first shot in that difficulty that young Mog-habeas corpus trial that young Moglia did lia had started towards the north end of the counter where there was located his pistol. Way shot and killed the elder Moglia, the father of the young man. The indictment alleged in ordinary terms that this was material, and was willfully done, etc. We deem it unnecessary to discuss the question of the irregularity of the special term of the court. This matter seems to have been in compliance with the decisions. start in that direction, and that a pistol was kept at that point. On appellant's trial the state introduced evidence of the first trouble between Way and the Moglias with reference to the jewelry that was taken. The details of this trouble were introduced against appellant on his trial. Exception was reserved. We are of opinion the exception was well taken. Appellant was not present at the first transaction, and was not charged with notice or knowledge of those matters. He claims to have been present at the second transaction, and testified to what he saw. Matters that occurred at the time of the would be evidence because they were within his knowledge and observation. [6] At the request of appellant the court ordered the indictment so changed as to omit the expression "alias High Pockets." Appellant was indicted as Ed Roberts, alias High Pockets. A pencil or pen was used in eras-homicide when appellant said he was present ing the expression "alias High Pockets" in the indictment, but it did not fully obliterate it, and a question is raised upon this. Appellant had a right to have this done when he was called upon to answer to the reading of the indictment. He had a right to plead under whatever name he saw proper, and to have the indictment changed to conform to the name he gave. Upon another trial this matter should not arise, and the obliteration of it will be sufficient to erase it entirely. This might not amount to much in the case, but defendant had a right to have it done, and the matter is mentioned more specifically because in the charge of the court, in mentioning the case, he stated to the jury that the party was Ed Roberts, alias High [8, 9] Appellant was arrested almost immediately after the killing, or within a very short time, and carried by the police officers to their headquarters. While under arrest he was asked with reference to the shooting and denied any knowledge of it or his presence at the time and place. The details of these bills of exception, there being several of them, are not necessary to state. The court admitted the testimony upon the theory that he was not charged with the homicide, and it was not a confession, and that this perjury was an independent offense, and, therefore, these statements could be used against him, although under arrest without warning, |
