G. W. Henrie v. The State, 41 Tex. 573

Reeves, Associate Justice. The indictment charges appellant with the murder of Michael Gannon in Shackle-ford county, and which county was attached to Palo Pinto county, where the indictment was found, for judicial purposes. At the July term, 1874, of the court the defendant applied for a continuance, which being overruled, he was put upon his trial, and convicted by the jury of murder of the second degree, and his punishment assessed at twenty years’ confinement in the penitentiary.

There was a motion for a new trial, and motion in arrest of judgment on various grounds; also a supplemental motion, as it is called, for a'new trial, on the ground that Michael Hogan, one of the jurors in the case, had been guilty of corrupt conduct in answering questions as to his qualifications as a juror. During the progress of the trial several bills of exceptions were taken by defendant to the admission of evidence offered by the State to prove the dying declarations of Cannon.

The instructions of the court to the jury, and the refusal to give the instructions asked by defendant’s counsel, and the verdict of the jury, as being contrary to the law and the evidence, are in part the grounds of the motion for a new trial. At the threshold to these inquiries we are met with a difficulty of frequent occurrence, as has been remarked on former occasions. There is no statement of facts in the record, and without it we are not able to review the action of the court in respect to the matters complained of.

There is in the record what purports to be a partial statement of the evidence introduced by the State, but it is neither signed by any one nor certified as containing the facts in evidence, and cannot therefore be regarded as forming any part of the record of the case. The case seems to have been well conducted by counsel; the points of objection to the rulings of the court are clearly presented, and saved by formal bills of exceptions, referring to the evidence, but which, as we have said, is not found in the record in such form as that it can be considered as being any part of the record.

In the view taken of the case it would only be necessary to examine these questions, and express an opinion upon them as bearing upon another trial, but for the reason just stated, it- cannot be done. The facts upon which an opinion could be formed and expressed are not before us. The indictment does not appear to be liable to the objections made to it in the motion to arrest the judgment. There is no appearance in this court for appellant, and without the benefit of either brief or argument for him, we have found no defect in the indictment.

It can hardly be said that the offense is not charged in plain and intelligible words. It was not necessary that the indictment should charge the kind of malice, as express or implied, with which the killing was done. The application for continuance, and the objection to the juror, Michael Hogan, stand upon different grounds from the other causes of the motion for a new trial, which, as we have said, would not be examined for the purpose of reversing the judgment, in the absence of a statement of the facts in evidence.

We think the continuance should have been granted, but being refused, that the new trial should have been awarded. In regard to the application for continuance, there may have been a question of diligence, and the court may have refused the application on that ground. The indictment was filed November 14th, 1872, though the defendant was not arrested until the 14th January, 1874. There was a mistrial at the March term, 1874, when the defendant was admitted to bail. At the July term following, at which time he was convicted, his application for a continuance was overruled.

We are not inclined, on so grave a charge, and on a record in some respects imperfect, to hold that proper diligence was not used. It is stated that the absent witnessés, Koefer and Alexander, were, at the time of the homicide, surgeons at the post of Fort Griffin, in Shackle-ford county, but that their residence at the time of the trial was unknown. It does not appear that an attachment, if the case was a proper one for that process, would have availed anything more than the subpoena, and which was returned without service. It was in the terms of the statute, and was the first application to continue the case.

The facts expected to be proved are stated, and their materiality cannot be seriously doubted. The witnesses were surgeons, and attended the deceased, who was a private in the army at the time he made his alleged dying declarations, and would, if present, testify, as stated in the application, that he was not conscious of approaching death, and believed there was hope of recovering.

The residence of the other witness is shown to be at Fort Griffin, and that he was temporarily absent, and that defendant expected to prove by this witness that he, defendant, was in company with the witness all day, on the day Cannon was shot, and that defendant did not shoot him. He says in his application that his statements are true, and as to the continuance they must be so regarded, there being nothing in the record to the contrary.

The motion for a new trial, and which is sworn to, alleging improper conduct of the juror Hogan, states that this juror was prejudiced against the defendant, and that he had formed and expressed a fixed conclusion as to the guilt or innocence of defendant, and that he had prejudged the case, though he had stated in his examination as a juror that he had no prejudice against defendant, and that he had formed no conclusion on the question of his guilt or innocence, and that these facts were unknown to him until after the trial. The affidavit of G. R. Lynn and R. T.

Dement, made part of the motion, states that Hogan, before the trial, told them that defendant had killed a poor innocent soldier, alluding to the deceased, and with an oath said that he ought to have his neck broke, and also said that he, Hogan, was a discharged soldier. Ho explanation is offered by the juror, nor is the truth of the statement called in question in any way, so far as can be known from the record. The case is stronger in its facts for a new trial than was the case of Hanks v.

The State, 21 Tex., 526, and which was reversed for another trial, because one of the jurors was shown to be prejudiced against the defendant, of which he had no notice at the time the jury was impaneled. In 21 Tex. it seems that the juror was not examined on his voire dire as to his prejudice. In the case under consideration it appears that the juror was so examined. If the witnesses are to be credited, and they are not shown to be unworthy of belief, there is reason to apprehend that the juror was not impartial, and not competent to pronounce upon the guilt or innocence of the defendant.

For refusing to grant the application for a continuance, and for overruling that ground of the motion for a new trial, and because we are not satisfied, as the case is presented, that the defendant was tried by an impartial jury, the judgment is reversed and the case remanded for further proceedings. Reversed and remanded.