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(248 S.W.) about a different result. It believed, it cer-| facts relative to the assault, claiming that tainly strengthened the appellant's defense, she was in the house at the time it occurred, in that it showed that Daniels, the injured which latter statement appears to be true. party, took a pistol with him to the dance Being misled by the concealment from them and, inmediately before meeting the appel- of the facts which the witness did know, lant, got possession of it from the witness counsel for appellant did not call her as a Sarah Daniels. This, while discrediting the witness. We may assume from the record evidence of Tom Daniels, was not wholly cu- that counsel representing the state fared no mulative or impeaching. Beard v. State, 55. better in eliciting information from the witTex. Cr. R. 157, 115 S. W. 592, 131 Am. St. ness than did counsel for appellant, or, if so, Rep. 806; Dunn v. State, 85 Tex. Cr. R. 299, that the information obtained was not to the 212 S. W. 511.

interest of the state, because it also refrained We believe that, under the facts of the from placing her upon the witness stand. case, the evidence is newly discovered within After the trial, through a conversation with the meaning of article 837, subd. 6, Code of her employer, and from information conveyCrim. Proc., and that the appellant has ed by him to appellant's counsel, they for the brought himself within the rule of diligence first time learned that this witness claimed applicable to that article. Henson v. State, that the injured party had taken his pistol 74 Tex. Cr. R. 283, 168 S. W. 89 (on motion from her possession when she was attempt. for rehearing); Gainer v. State, 89 Tex. Cr. ing to hide it in the automobile at a time R. 538, 232 S. W. 830; Cottrell v. State, 91 | only a few minutes before the difficulty ocTex. Cr. R. 131, 237 S. W. 928; Mireles v. curred. She purposely concealed this knowlState, 83 Tex. Cr. R. 608, 204 S. W. 861; edge from the attorneys representing appelNothaf v. State, 91 Tex. Cr. R. 378, 239 S. W. lant, and we are unable to conceive how 215. On the materiality of the testimony, they or appellant could have used any more see Russell v. State (Tex. Cr. App.) 242 s. diligence than the affidavits attached to the W. 217.

motion for new trial show they did use in an The motion for new trial should have been endeavor to ascertain what facts this witgranted.

ness knew. The truth of the facts asserted The judgment is reversed and the cause in her affidavit and those of appellant and remanded.

his counsel was not controverted by the

state. They urged in the court below, and On State's Motion For Rehearing.

now urge in this court, that if Sarah Daniels

did testify upon another trial as indicated in HAWKINS, J. [1] The state insists we her affidavit that the evidence is only cumuwere in error in holding that appellant had lative, corroborative, and impeaching in its brought himself within the rule requiring a character and would not likely change the new trial for newly discovered evidence. result. With this contention we have been Where the record shows a witness present unable to agree. One witness who was not at the trial whose evidence is claimed to be close enough to the scene of the difficulty to newly discovered; it is the exception rather see what was transpiring claims to have than the rule that such contention will be heard somebody say “Don't come on me with sustained; but that such exception is well that pistol," still another witness testified recognized will be found from an examination that appellant remarked, immediately upon of the cases cited under the third paragraph entering the house after he had struck the of section 204, p. 130, Branch's Annotated injured party with the axe, that, “If you Penal Code.

don't believe he had a pistol, go look in the [2, 3] The state had proved by the injured yard.” The state showed by an eyewitness party, Tom Daniels, that he was unarmed at other than the injured party that the latter the time appellant struck him with the axe. was unarmed at the time of the assault. If Appellant asserted to the contrary and claim- appellant is able to show upon another trial ed that Daniels had a pistol presented at that Tom Daniels was seeking his pistol and him at the time the assault occurred. This obtained possession of it just a few minutes was a pivotal issue in so far as appellant's before the difficulty occurred, the jury is right of self-defense was concerned. Sarah entitled to know that fact to aid them in Daniels had been summoned as a witness by determining whether or not in truth Tom the state. The affidavits of appellant's coun- Daniels was armed with a pistol as claimed sel show they conversed with the witness by appellant at the time of the difficulty. who persistently denied that she knew any The motion for rehearing is overruled.

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and would get him one. This witness further STERLING V. STATE. (No. 6995.) testified that later a woman came to his (Court of Criminal Appeals of Texas. Feb. 28, was, and that she told him, but that she was

room, and that he asked her what her price 1923.)

in a hurry and could not stay with him at 1. Criminal law 507 (4)-Officer, arranging that time, but would come back later, and she

with porter of hotel to send prostitute to his left, and he left. room, held accomplice.

[1-4] The trial court correctly instructed In a prosecution for procuring, an officer the jury that said officer was an accomplice. who went to a hotel and arranged with a porter The question is raised as to the sufficiency of to send a woman to his room for illegal sexual | the testimony. Where the state relies for a purposes, held an accomplice.

conviction upon the testimony of an accom2. Criminal law 780(1)-Proper to charge plice, it is always proper to tell the jury, as

that conviction cannot be had on testimony was done in this case, that a conviction canof accomplice alone.

not be had on such testimony unless there be When the state relies for conviction upon other evidence in the case than that of said the testimony of an accomplice, it is always accomplice, which of itself tends to connect proper to tell the jury that a conviction can

the aocused with the commission of the of-' not be had on such testimony, unless there be

fense. It is a well-known method of reasonother evidence in the case than that of the ing in cases wherein the court is called upon accomplice, which of itself tends to connect the accused with the commission of the of- to determine if the testimony exclusive of fense.

that of the accomplice be sufficient to corrob

orate him, and we omit from our consider3. Criminal law am 511(1)—Method of deter: ation the testimony of said accomplice, and mining whether testimony, exclusive that

consider and sift the remaining testimony to of accomplice, sufficient to corroborate him stated.

see if it point to the guilt of the accused. To determine whether the testimony ex

We have done so in the instant case. Appelclusive of an accomplice be sufficient to cor

lant was unquestionably employed at said roborate him, the testimony of the accomplice hotel as a porter. The woman whom it is should be omitted from consideration, and the charged that he allured and procured for ilremaining testimony sifted and considered to legal purposes was shown by the uncontradetermine if it points to the guilt of accused. dicted testimony of a number of witnesses 4. Criminal law Om511(1)-Evidence held in to be a woman of good reputation for virtue

sufficient to corroborate testimony of accom- and chastity and to be a working woman. plice in prosecution for procuring.

She testified in behalf of appellant, and swore In a prosecution for procuring, evidence that he came to her room and told her that of an officer that he went to a hotel, where ac there was a gentleman in room 14 who said cused was employed as porter, and that ac he knew her and wanted to see her. She cused sent to his room at the officer's request said she went to the door of room 14, and, a woman for illegal sexual purposes, held in- observing the officer in there, and that he sufficiently corroborated.

was a strange man, she asked him what it

was that he wanted, and according to her Appeal from Tarrant County Court, at Law; P. W. Seward, Judge.

testimony he made some proposals to her

which she rejected, and whereupon she went Jesse Sterling was convicted of procuring, back to her room and left the hotel. Appeland he appeals. Reversed and remanded. lant testified that the officer came to the ho

Baskin, Dodge & Beene, of Fort Worth, tel and registered, and that he was accomfor appellant.

panying said officer to the room assigned to R. G. Storey, Asst. Atty. Gen., for the him when said officer saw the woman in the State.

case and said to appellant that he believed

he knew her and would like very much to LATTIMORE, J. Appellant was convicted see her. Appellant said he told the officer in the county court at law of Tarrant county he would go and inform her of this fact, of procuring, and his punishment fixed at a which he did. The only state witness who fine of $50 and 30 days in the county jail. testified aside from that of the officer above

The principal state witness was an officer mentioned was a policeman, who testified in the city of Fort Worth, who went down to that on the date in question the officer above the hotel at which appellant was employed mentioned met him on Sixth street and said, as porter, went in, and accosted the appel. “Let's go up,” and that he went up into the lant and told him that he wanted a room and hotel above referred to and arrested the apwas told to register, he asked what it would pellant. He further testified that he did not cost, and was told a dollar, which he paid, see the woman in question in the hotel at and, according to his own testimony, he then that time, but did see her on another occaasked appellant, “Have you got any women sion; that appellant was employed as porter here?and appellant told him that he had, lat said hotel. He gave in evidence no cir

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(248 S.W.) cumstance tending to corroborate the state's incumbent upon the trial judge to change the accomplice witness.

venue, unless the application is controverted We have gone through this record care in the manner prescribed by statute, or unless fully, and find ourselves unable to assent the controverting affidavit is waived by the to the proposition that there is testimony, accused, and evidence heard justifying the de

nial of the motion."
aside from that of the officer mentioned,
which tends to connect the accused with the

A number of authorities are cited in sup-
offense of procuring or alluring a female to port of the doctrine announced.
come to a room in the Endicott Hotel in

Because of the error in the oporruling of Fort Worth for illegal sexual purposes.

the application for change of venue, the The judgment is reversed, and the cause judgment of the trial court will be reversed, is remanded.

and the cause remanded.

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ROSS V. STATE. (No. 7399.)

SMITH V. STATE. (No. 7183.)
(Court of Criminal Appeals of Texas. Feb. 28,
1923.)

(Court of Criminal Appeals of Texas. Feb. 28,

1923.) Criminal law 137-Overruling uncontro. verted application for change of venue held 1. Criminal law 507 (4)—Son of sheriff, buy

ing liquor of accused held an accomplice. Where application for change of venue was In a prosecution for selling intoxicating liqproperly verified, no controversy of the facts uor, a son of the sheriff, who with another went filed, no issue joined by the state, and no evi- to the home of T. S., a brother of accused, and dence heard, overruling it was error.

there bought from some one a quantity of liq

úor, and testified against defendant, held acAppeal from District Court, Montague complices; the sale having taken place before County; C. R. Pearman, Judge.

amendment to the Dean Law, providing that

purchasers are not accomplices. Frank Ross was convicted of selling intoxicating liquor, and he appeals. Reversed 2. Witnesses ww383_-Cannot be impeached by and remanded.

proof of contradiction upon immaterial mat

ter. Benson & Benson, of Bowie, for appel A witness cannot be impeached by proof of lant.

contradiction upon an immaterial matter. R. G. Storey, Asst. Atty. Gen., for the

3. Criminal law Cm 407 (2)-Accused not bound State.

by statements of third party, unless made in

his presence and hearing. LATTIMORE, J. Appellant was convicted It must be made to appear reasonably cerin the district court of Montague county of tain that the statements of a third party, by selling intoxicating liquor, and his punish- which the accused is sought to be bound, were ment fixed at one year in the penitentiary. made in the presence and hearing of accused,

In our view of the proper disposition of and under circumstances reasonably calling for this case it will hardly be necessary to state a denial or indicating his assent. the facts or any other matters than that an application for change of venue was prepar

Appeal from District Court, Ellis County; ed and sworn to by appellant, same being in W. L. Harding, Judge. conformity with the statute and setting Earnest Smith was convicted of selling forth in customary language that there ex- intoxicating liquor, and he appeals. Reisted against appellant such prejudice in versed. Montague county as that he could not ob

Tom Whipple, of Waxahacbie, for appeltain a fair and impartial trial. Said motion lant. was signed and sworn to by appellant, and

R. G. Storey, Asst. Atty. Gen., for the was supported by the affidavits of two citi State. zens of said county. There was no contropersy of the facts filed, and no issue joined LATTIMORE, J. Appellant was convicted by the state upon the application. As far as in the district court of Ellis county of the the bill of exceptions informs this court, no offense of selling intoxicating liquor, and his evidence was heard, but the trial court mere- punishment fixed at two years in the penily made an order overruling the application tentiary. for change of venue. In Cox v. State, 90

[1] On the night of October 13, 1921, BryTex. Cr. R. 106, 234 S. W. 72, occurs the fol

an Forbes, the

son of the Ellis county lowing statement:

sheriff, accompanied by one Hickman, went "The presentation of an application for to the home of Tom Smith, a brother of apchange of venue, properly verified, makes it pellant, about 11 o'clock at night and there

w For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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bought from some one a quantity of liquor, about 11 o'clock at night. The defense of for which $2.50 was paid. Both Forbes and Earnest Smith was that of alibi, and he put Hickman testified as witnesses for the state, on a number of witnesses, who testified that and were the only witnesses who testified he was at his home, some two miles distant to the sale of the liquor. Bryan Forbes was from the home of Tom Smith, on the night unquestionably an accomplice to the offense in question. It further appears from the charged against appellant, said sale having testimony that after the three young men taken place before the amendment to the went back to Waxahachie they gave informDean Law, exempting purchasers in crimes ation to the sheriff of the success of their of this sort from being accomplices, became effort to buy whisky, and that official, aceffective on November 15, 1921. The trial companied by three deputies, went to the court did not instruct the jury that Forbes home of Tom Smith about 4 o'clock a. m. was an accomplice. That this was error is on that same night. They called for Tom, manifest. Plachy v. State, 91 Tex. Cr. R. and when he came out into the yard they 405, 239 S. W. 979.

arrested him. He was a witness on behalf In the testimony of young Forbes we find of appellant in this case. While on the the following, referring to the occasion of stand he was asked with reference to a himself, young Hickman and Henry Quaite statement made by him when he was in progoing down to the home of Tom Smith to cess of arrest by the officers on that night. purchase the liquor in question:

The state sought to show that Tom called "When we called for Earnest to come out I out "Earnest, Earnest, shoot! shoot! shoot !" don't know whether I or some of the other boys and also that he further said, "Earnest, told him what we wanted. Henry Quaite was don't shoot! They are holding me between kind of spokesman for the bunch; but one of you and them." This testimony was objectus three told Earnest what we wanted, thated to, as being out of the presence and hearwe wanted some whisky, and he said all right. ing of appellant, and a diligent search of We wanted a pint, and he just pulled it out of the record fails to disclose anything in the his pocket right then, and insisted on us taking testimony tending to show the presence of a quart. We were standing right there near appellant at said house at 4 o'clock in the the house."

morning, save the statements just referred Adverting to the testimony of young Hick- to. The trial court in his charge to the jury man, the only other eyewitness to the trans- instructed them that they could not consider action, we observe that he states that he these statements for any purpose except as went with Bryan Forbes to Tom Smith's on affecting the credibility of Tom Smith as a the night in question. We quote from his witness. testimony:

[2, 3] It is a well-settled rule that a wit

ness cannot be impeached by proof of con"Earnest Smith come out to the car where

If we were, and the transaction took place right tradiction upon an immaterial matter. there at the car. Forbes and I finally got out appellant was in the house of his brother, of the car; we were talking about wanting to and heard the latter make the statements get some whisky. The party had the whisky in above referred to, it would be extremely his pocket. We told him we wanted to buy doubtful whether such statements could he some whisky-whoever did the talking told him held admissible upon any possible rule. that. I forget whether we stated how much we wanted. I do not believe he told us how much That the statements were prejudicial seems he had.”

beyond question. Tom Smith was struggling

with the officers and resisting arrest and It is true that elsewhere in his testimony calling to his brother, if the testimony of this witness referred to the fact that Forbes the witnesses be correct, to "shoot! shoot! received the whisky and paid the money to shoot!” The other construction was that he the defendant. We are not at all sure that was telling his brother not to shoot, as the this witness Hickman is not also an accom- officers were holding him between the broth. plice in law. If in fact he and Forbes were er and the officers. Just how appellant could contributing to the purchase, or if they were be bound by these statements made by Tom acting together in the purchase of the liquor Smith, even if he was in the house at the in question, the transaction having taken time they were made, is not clear. The enplace before November 15, 1921, Hickman tire lack of any testimony for the state might also be deemed an accomplice. We showing appellant's presence in Tom Smith's are of opinion at least that the question is house at the time of said arrest and stateleft in much doubt in our minds, and, in- ments, seems to indicate that the statements asmuch as the state relies almost alone up could not be introduced upon any theory as on the testimony of said two witnesses, and having been made in the presence and hearin view of certain other proceedings had ing of the appellant and by which he was upon this trial, we find ourselves unwilling bound. The rule in any case is that it must to assent to the soundness of this judgment. be made to appear reasonably certain that

The young men visited the home of Tom the statement of a third party by which the

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(248 S.W.) the presence and hearing of the accused, and other party, Redfearn, and went to Duffle's under circumstances reasonably calling for house. There were no lights burning and no a denial or indicating his assent.

sign of gaming there at that time. It was Our view of the inadmissibility of this near 12 o’elock when they got back to town. testimony, when taken together with the se The next time Chapman saw appellant was rious doubt arising from the testimony of about 3:30 at the Cotton Belt Depot. Appelyoung Hickman as to whether he is or is not lant had before this time given Chapman inan accomplice, seems to us to fully justify formation about gambling offenses, and had the reversal of this judgment; and it is so accompanied him at one time to investigate ordered.

After Chapman heard about the burglary, he claims to have called Mrs. Connie Russell's residence. She told him, he says,

that appellant was there asteep. He claims WILSON v. STATE. (No. 7447.)

to have gotten appellant on the phone and

requested him to come up town; that he (Court of Criminal Appeals of Texas. Feb. 28, (Chapman) wanted to talk with him. When 1923.)

he saw appellant after that, the latter was 1. Burglary 41(1)-Evidence held insuffi. with Anderson, a deputy sheriff, in an autocient to sustain conviction.

mobile. Appellant said to Chapman, "Well, Evidence held insufficient to sustain convic- they broke in on you last night,” and furtion of burglary.

ther said, "I think I can find out something

about it for you." 2. Criminal law ww419, 420(11)-Testimony of

Witness Cottle testified that either on the telephone conversation held inadmissible hearsay.

night the store was burglarized or the night In a prosecution for burglary, where it ap- prior appellant came in the restaurant with peared that the sheriff shortly after hearing a rope in his hand, saying he had been helpof the offense called accused's rooming house ing or was going to help Redfearn or Polk on the telephone, testimony that the landlady catch a cow, or something to that effect. told him accused was there asleep held inad Anderson, a state's witness, was deputy missible hearsay.

sheriff at the time of the burglary. He tes

tified that he heard of the burglary the next Appeal from District Court, Titus County; morning; that he was going out to attach R. T. Wilkinson, Judge.

some witnesses, and saw appellant standing Sam Wilson was convicted of burglary, in front of a drug store about 9 o'clock, and and he appeals. Reversed and remanded. called him to go with witness; that he told

I. N. Williams, of Mt. Pleasant, and B. appellant about the burglary, who said if
B. Sturgeon, of Paris, for appellant.

he could find out anything about it he would R. G. Storey, Asst. Atty. Gen., for the let the officers know. As witness and appelState.

lant were returning from their trip they

met Sheriff Reeves, who talked to appellant, HAWKINS, J. Conviction is for burglary, but not in Anderson's presence. Reeves told with punishment of two years in the peni- Anderson something after this conversation, tentiary.

but Anderson disclaims arresting appellant. [1] On Sunday night, August 28, 1921, a Upon the examination of this witness by the storehouse in the city of Mt. Pleasant was district attorney is based one of appellant's burglarized, and a quantity of merchandise bills of exception. The witness and appellant stolen. The entry was made through the got back to Mt. Pleasant about 3 o'clock in transom at the back door, and appearances the afternoon. Witness Reeves and appelindicated that the exit was over an awning lant went to --rs. Russell's, where the ofiicers at the front, access to which was easy from found two suit cases in the hall, one in a a "deck” in the store. The state relied upon room under the bed, and one in the back yard circumstantial evidence, and it is earnestly under a chicken coop. The suit cases and insisted that it falls short of that required contents were returned to the owners of the to support a conviction, which makes it nec- burglarized store, who identified them as essary to set it out more in detail than is their property. customary.

Stevens testified that between 10 and 11 Chapman was the city marshal. He first o'clock on the night of the burglary he saw heard of the burglary about 7 o'clock Mon- appellant sitting on the sidewalk near the day morning. The night before appellant burglarized store. Appellant was alone when told him some gambling was in progress at the witness came up to where he was. In a one Dufile's. Chapman could not go just at few minutes M. C. Rogers came up, when that time, and later he says appellant told he and appellant walked up the street tohim if he did not go the game would be over. gether. After this last conversation, which Chapman Rogers testified that he and appellant fixes as between 11 and 12 o'clock, he got an- walked up the street a short distance togeth

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and indexes

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