Doug. Evans v. The State, 13 Tex. Ct. App. 225

Willson, J. Upon the trial of this case the State was permitted, over the objections of the defendant, to prove certain ■facts in relation to one J. M.

Brock; that is, that said Brock was a white man, and a preacher who preached to the negroes; that, a short time prior to the killing of Godley, he, Brock, had charged certain citizens of Wood county, before a United States commissioner at Tyler, with a violation of the law known as the ku lclux law; that said citizens had been arrested upon this charge and brought to Tyler, and were in Tyler, and near the place where Godley was killed at the time of the killing; that Brock was also in Tyler on that day, and was observed on the streets of Tyler, a short time before Godley was killed, in conversation with a company of three or four negroes.

It is strenuously contended by counsel for defendant that the admission of this testimony was error for which the judgment of conviction should be reversed. The objection urged is that the testimony was irrelevant to any issue in the case, and does not in the remotest degree tend to connect the defendant with the alleged murder. In order to determine the relevancy of this evidence we must consider other facts in evidence. Brock was a white man, and a preacher engaged in preaching to negroes. It is therefore reasonable to suppose that he exercised an influence over that class of our population.

He was engaged in the prosecution of some citizens of Wood county, whom he had caused to be arrested and brought from their homes to Tyler, for a trial before a United States commissioner. There was bad feeling between these citizens and Brock. House and Godley, who were lawyers and partners, were the attorneys who had been engaged by the Wood county citizens to defend them in their trial before the commissioner.

On the evening that House and Godley were killed there was a large number of negroes assembled in Tyler, upon the public square, on the streets, and in and around two drinking saloons which were kept by negroes. Many of these negroes were armed, and among them was one Randal Johnson, who claimed to be a policeman, and who was armed with a Henry rifle; and he seemed to be a leader among the negroes assembled.

Many of these negroes appeared to be in an excited state, and there were remarks and movements among them which indicated a concerted plan, and a preparation on their part, under the leadership of Randal Johnson, to make some kind of an attack upon the Wood county men, and those in company with them. The defendant was seen in this assemblage of excited and armed negroes. What was the cause of this excitement? Why were these negroes assembled and conferring together, armed with guns and pistols, and muttering prophecies of an approaching conflict? There was no apparent cause for these threatening demonstrations.

What, then, was the hidden motive propelling these unusual movements? Was it not the presence upon the streets of Tyler of these Wood county men who were being prosecuted by the preacher Brock, and who were being defended in that prosecution by House and Godley? The evidence to our minds indicates that such was the case. It is claimed that the purpose of Randal Johnson and his followers was merely to disarm these men, and that the knowledge of this purpose among the assembled negroes was the cause of the excitement.

Concede this to be the fact, who was the instigator of this purpose on the part of Randal Johnson and his crowd? Under this state of facts was it not proper for the State to inquire as to the movements and motives of this man Brock? Was it not proper and relevant to show who he was, that he was in Tyler, that he was seen conversing with some of these excited negroes only a short time before the terrible tragedy, and that he, of all other men on that occasion, had a motive for concerting and impelling a conflict in which in all probability he would have accomplished the removal of his hated and feared adversaries?

We think the testimony was relevant and proper, when considered in connection with the other evidence in the case, and that the court did not err in admitting it. If, on the other hand, as contended by defendant’s counsel, the testimony was wholly irrelevant, foreign to any issue in the case, then it could have no appreciable value in determining the issue involved; would be immaterial, and a refusal to exclude it would not be sufficient cause for a reversal of the judgment. (Gose v. The State, 6 Texas Ct.

App., 121.) It is also claimed by defendant’s counsel that the court erred in admitting the testimony of Alf. Tucker, a witness for the State. This witness was examined on the trial of the defendant, had before an examining court shortly after the murder of Godley, and his testimony was reduced to writing at the time, and was signed by the witness. The proper predicate was laid for the introduction of this testimony by the State, by proving that the witness Alf.

Tucker was dead; that the defendant was present before the examining court when the witness was examined, and had the opportunity afforded him of cross-examining said witness. The objection urged against the admissibility of the written testimony of this witness is, that it was not certified by the examining court in the manner required by law. The evidence before the examining court, all of which was reduced to writing, is voluminous, constituting a record of over three hundred pages, and appended to it is the following certificate of the examining court: “THE STATE OF TEXAS, } “ County oe Smith. f “I, Z.

Norton, Judge of the Ninth Judicial District, sitting as an examining court in a case wherein the State of Texas is plaintiff and Ed. Moore (alias Wooten) and others are defendants, said defendants being charged with murder of B. E. House and F. A. G-odley, do hereby certify that the foregoing three hundred and sixty-four (364) pages contain the proceedings had before me as an examining court. as aforesaid, as thereon purporting to have been had, containing the evidence and genuine signatures, etc., as appears. All of which is respectfully submitted to the Honorable District Court of said county.

Witness the seal of court, and my official signature, January the 23rd, 1872. “Z. Norton, Judge of the Ninth Judicial District.” The law governing this subject is found in

Article 267 of the Code of Criminal Procedure, which reads as follows: “The testimony of each witness shall be reduced to writing by the magistrate, or some one under his direction, and shall then be read over to the witness, or he may read it over himself, and such corrections shall be made in the same as the witness may direct, and he shall then sign the same by affixing thereto his name or mark. All the testimony thus taken shall be certified to by the magistrate taking the same.” We think the certificate before us fully complies with the requirements of the law.

It certainly was not contemplated by the lawmakers, as contended for by defendant’s counsel, that the testimony of each witness should be separately certified to. Such a construction would be contrary to the plain language of the statute, and unsupported by reason We are clearly of the opinion that the court did not err in admitting the testimony of the witness Alf. Tucker. A number of objections are presented and insisted upon by defendant’s counsel to the charge of the court. It is contended that the court should have charged the law of manslaughter.

The charge of the court is always sufficient if it distinctly sets forth the law applicable to the evidence (Smith v. The State, 8 Texas Ct. App., 141), and it is only necessary to give such instructions as are applicable to every legitimate deduction to be drawn from the facts in proof. (Johnson v. The State, 27 Texas, 758; Maria v. The State, 28 Texas, 698; Bishop v. The State, 43 Texas, 390; Rogers v. The State, 1 Texas Ct. App., 187; Bronson v. The State, 2 Texas Ct. App., 46; Merritt v. The State, 2 Texas Ct. App., 177; Hutto v. The State, 7 Texas Ct. App., 44; Smith v. The State, 7 Texas Ct.

App., 414; Eanes v. The State, 10 Texas Ct. App., 421; Williams v. The State, 10 Texas Ct. App., 528.) In the case at bar there is no evidence tending to show such a state of facts as would reduce the homicide of Godley from murder to manslaughter. The homicide was either murder or it was justifiable. The evidence presents no “adequate cause” for the killing, and unless the killing was in self-defense it was necessarily murder, and the court would have been going beyond the facts of the case if it had instructed the jury in regard to the law of manslaughter.

It is further objected to the charge of the court, that it does not sufficiently present the law of self-defense; that it does not sufficiently present the law governing the defense of alibij that it misdirected the jury as to the rights of a policeman, and those acting under his authority, in making arrests, etc.

Without considering in detail the exceptions made to the charge, suffice it to say that we have examined it carefully and critically, and are of the opinion, taking it as a whole, that it is an able, clear and comprehensive exposition of the law of the case, and in all respects as favorable to the defendant as the facts would warrant. We have been unable to discover any error, even an immaterial one, in the evidently very carefully prepared charge of the learned judge who presided at the trial.

The defendant also complains that the court erred in refusing to give to the jury special instruction No. 1, asked by him. It does not appear from the record whether this instruction was given or refused. There is nothing written upon it by the judge to indicate what disposition was made of it. In such case, it is presumed, on appeal, that the charge was given to the jury. (Seal v. The State, 28 Texas, 491; Johnson v. The State, 7 Texas Ct.

App., 210.) But we are of the opinion that, even if this requested instruction was refused by the court, it was not error, because, we think, it was substantially embraced in the general charge of the court as given to the jury. Another error assigned by the defendant is, that the court added a qualification to defendant’s special charge No. 2 before giving it to the jury. We think the qualification was proper, and stated the law correctly, and it was within the discretion of the court to refuse the charge as asked, or to modify and give it. (Code Crim. Proc., Art. 679; Ramey v.

The State, 14 Texas, 409; Needham v. The State, 19 Texas 332; McMahon v. The State, 1 Texas Ct. App., 102.) Among other grounds presented by defendant for a new trial, was that he was surprised on the trial by the testimony of the State’s witness Striplin, who testified to- facts on the trial which he had not testified to before the examining court.

It is not pretended that either the defendant or his counsel had ever conversed with Striplin in regard to what his testimony would be, or that they had used any diligence whatever to inform themselves upon the subject, or that they had been in any way improperly misled or deceived in regard thereto. - Neither is it shown that Striplin had testified falsely on the trial, or that his statements were in contradiction of anything he had testified to before the examining court.

We are unable to perceive that the testimony of this witness was calculated to surprise the defendant, and if it was, it does not appear but that the surprise was occasioned by his own carelessness and neglect.

We have bestowed upon this important case a most careful consideration, and our deliberate conclusion is that the verdict of the jury is supported by the evidence, and that the defendant has had a fair and impartial trial in strict accordance with the forms of law, and that there is no error in the proceedings which would warrant us in disturbing the judgment of the trial court, and the same is therefore affirmed. Affirmed. Opinion delivered November 18, 1882.