Tom Kennedy v. The State, 19 Tex. Ct. App. 618

White, Presiding Judge. Appellant and one Iven Thompson and one Scott Hendricks were jointly indicted for the murder of one Edmond Hill, on the 17th day of August, 1883, in Van Zandt county. They were separately tried, and on his trial this appellant was convicted of murder of the first degree, the penalty assessed being a life term in the penitentiary. Nineteen bills of exception were saved to rulings made by the court at the trial, all of which appear in the record. 1. The precept or writ issued by the clerk with a copy of the special venire to be served on defendant had, if ever issued, been lost or mislaid.

A copy of the venire had been served on the 17th day of April. On the day of trial, when it was ascertained that the precept or writ was mislaid or lost, defendant, though he did not deny that a precept or writ such as is required (Code Grim. Proc., art. 616) had been regularly issued, served, and returned on the 17th of April, simply excepted to a paper purporting to be said writ,— which paper the clerk and sheriff had of their own motion substituted in lien of the one lost, and he asked the court to hear proof as to the validity of this substituted paper.

The explanation of the judge shows that he did hear the proofs, and from the evidence it appeared that the statutory writ had been issued with a certified copy of the special venire, and that it had been executed and returned on the 17th, the day the certified copy of the venire was delivered to defendant, and that it had been lost.

Defendant did not deny that he had been served with a certified copy of the special venire on the 17th; he did not move the court to strike the pretended substitute from the files and that the prosecution be required to substitute the lost paper in the mode and manner required by law. (Strong v. The State, 18 Texas Ct. App., 19.) Had he done so, and the court had refused to grant the motion, there might then have been some question for us to determine.

As it is, since the court appears to have complied with his request and done what he asked should be done, we cannot see that he has any further ground for complaint. 2. Amongst those exempt from jury service, when they may claim such exemption, are “all civil officers of this State and of the United States.” (Kev. Stats., art. 3014, subdivision 2.) A postmaster is a civil officer of the United States. When the name of A. C.

Clough was reached and called on the special venire, the sheriff stated that said juror was a postmaster; that he knew the fact, and that said juror had asked him to render this excuse for him. Whereupon the court excused the juror, and defendant excepted.

Appellant’s proposition in support of his exception is “ that it is not competent for the court to excuse a juror selected and served as one of a special venire, until such juror has appeared at the trial, has been called and properly sworn to answer questions touching his service and qualifications, even though he may be exempt from jury service and the court apprised of the fact. His excuse, if any he has, must be established and claimed under oath.” Ordinarily, this proposition is correct. (Code Crim. Proc., arts. 616, 619 and 620; Robles v. The State, 5 Texas Ct. App., 346; Foster v. The State, 8 Texas Ct.

App., 254; Hill v. The State, 10 Texas Ct. App., 618; Thuston v. The State, 18 Texas Ct. App., 26.) But to this, as to every other general rule, there must, as there ought to be, exceptions where the rule should fail for the want of reason in its enforcement. A postmaster may be unable to leave his office without endangering the public service, even for a short time, just as one who is sick may be absolutely unable, from physical ailment, to appear and present in person his excuse. In either of such cases, we apprehend, he might send his excuse by another, and the court could hear and determine it in his absence.

If defendant is not satisfied, or desires to disprove the fact or ground of excuse, he should apply for an attachment to have the juror brought forthwith into court. (Code Crim. Proc., art. 618, and Thompson v. The State, just decided, ante, p. 593.) 3. Bills of exception 3 and 7 show challenges for cause to the jurors on account of opinions previously formed. The jurors stated that such opinions would not influence their verdict, and that, notwithstanding such opinions, they could give the defendant a fair and impartial trial.

As to the opinions of jurors the rule adopted by the nineteenth Legislature is, “if it (the opinion) appears to have been formed from reading newspaper accounts, communications, statements or reports, or from mere rumor or hearsay, and the juror states on oath that he feels able, notwithstanding such opinion, to render an impartial verdict upon the law and the evidence, the court, if satisfied that he is impartial and will render such verdict, may in its discretion admit him as competent to serve in such case; but, if the court in its discretion is not satisfied that he is impartial, the juror shall be discharged.” (Gen’l Laws Nineteenth Legislature, p. 91; art. 636, subdivis. 13.) Under the rule we cannot see that the court has abused its discretion in the two instances shown by the bills of exception. (See Thompson v.

The State, decided at present term, ante, p. 593.) 4. As shown by the fourth bill, the juror Norman stated that he was a postmaster, and would have claimed exemption on that ground in this case had he known it. Defendant’s counsel then asked him if he now desired to claim such exemption, to which question counsel for the State objected, and the court sustained the objection, and defendant exhausted a peremptory challenge upon said juror.

As seen above, a claim of exemption for the ground stated is entirely a personal privilege, and unless the juror claimed the exemption he was not thereby disqualified, and it was not a right of defendant to urge or insist upon his claiming the exemption. We see no error in the ruling. 5. The juror Scott thought “a life sentence would be bad enough for anybody,” and that he had conscientious scruples against the infliction of the death penalty. He was stood aside for cause by the State. This was correct.

Thompson’s case, just decided, disposes of the matter presented by the eighth bill, wherein the juror Gox stated he would not inflict the death penalty where he had the option of imposing imprisonment for life. 6. Bill of exceptions complains that the court would not delay the trial to enable defendant’s counsel to prepare and write out his bills of exceptions. In his explanation to the bill the judge says defendant had five attorneys representing him on the trial, and one of them appeared to be engaged solely in writing out the bills of exception; wherefore he saw no necessity to delay the trial.

A well settled rule of practice is that it is error to refuse a defendant time to prepare his bill of exceptions at the time the exception is reserved. (Rev. Stats., art. 1358; Sager v. The State, 11 Texas Ct. App., 110; Knox v. The State, 11 Texas Ct. App., 148.) And in Brown v. The State, 13 Texas Ct. App., 59, it is held that a. defendant on trial objecting to any order, ruling or decision of the trial court, is entitled to time in which to prepare his bill of exceptions, whether he has one or more counsel.

But we do not think it was ever intended to hold that a mere refusal to grant time is reversible error whether defendant was injured or not by the refusal. For, though the time may not have been granted him, yet if he got his bill subsequently. it cannot be perceived how he could claim that he was injured. In such case the ruling would amount simply to error without prejudice, which is rarely if ever held reversible error.

In order to make an exception of this kind available, the exception should show that the refusal of time prevented defendant from preparing and getting the benefit of a bill to which he was entitled, or that some other material injury was thereby caused the defendant, and the bill of which he was deprived or the injury done should be shown in the bill of exceptions saved to the refusal to grant time. It has been held that the refusal of a district judge to sign a bill of exceptions which it is apparent could not have affected the result in the supreme court will afford no ground for reversal. (Belo v.

Wren, 63 Texas, 668.) In this case the bill we are considering states no more than the bare fact that the court refused to grant time to prepare the bills, and does not state even in general terms that injury was occasioned, or any kind of prejudice to his rights suffered by appellant. As presented in the bill, we do not think a reversible error is shown. We will remark, however, that a court can never be too careful in refusing a defendant in a criminal case any right accorded him by law. 7.

The ninth bill of exceptions shows that the juror Pirtle had qualified himself on his voir dire, and was accepted by the State, and the defendant having exhausted his peremptory challenges declined to accept or reject the juror, and the court ordered the juror, sworn and impaneled. There was no error in this. -If he could have done so, defendant should have challenged the juror for cause. Challenges for cause are never exhausted (Loggins v. The State, 12 Texas Ct. App., 65), even though his peremptory challenges may have been. 8.

Bill of exceptions Ho. 10 was to the court’s permitting the witness Bunnells, over objection, to testify that just after the shooting of deceased he heard a voice (that of .Scott Hendricks, a co-defendant) exclaim, “ Oh, yes, boys, I got him this time.” The evidence was admissible as res gestee. (Thompson, v. The State, just decided, ante, p. 593.) 9. Bill of exceptions Ho. 11 is in reference to the court’s permitting counsel for the State to hold interviews with several of the witnesses who had at the beginning of the trial been placed under the rule.

In explanation the court states that nothing occurred, showing an abuse of the privilege. Such practice was condemned by this court in Brown v. The State, 3 Texas Ct. App., 294. The general rule is that all matters concerning the placing of witnesses. under the rule are confided to the discretion of the trial court, and that its action with reference to such matters will not be revised unless an abuse of discretion is manifest. (4 Texas Ct. App., 646; Davis v. The State, 6 Texas Ct. App., 196; 7 Texas Ct. App., 142; Holt v. The State, 9 Texas Ct. App., 572; 10 Texas Ct. App., 571; 11 Texas Ct.

App., 32; 13 Texas Ct. App., 244; Dubose v. The State, 13 Texas Ct. App., 419; 14 Texas Ct. App., 1; 16 Texas Ct. App., 99.) No abuse of discretion has been made manifest in this instance. 10.

Bill of exceptions No. 12 was saved to the question and answer propounded by the prosecution to the witness Hines, who stated that he had followed a mule track from the place of killing, and be was then asked by the State’s counsel “if the mule that he, witness, had sold to one Willis Hanley made the track he was tracking?” It was objected that the question was leading.- A question is leading which suggests the answer desired. (Tinsley v. Carey, 26 Texas, 350.) The question put could have been answered either “yes” dr “ no,” and we do not think either one of these answers was suggested more than the other.

Another objection was that the question called for the mere opinion or conclusion of the witness. From the description the witness bad given of his mule, and that she was reel-footed in her hind feet and made a most peculiar trade, we think his testimony as to her tracks might well be called a fact which could be proven, in contradistinction to a mere opinion or a conclusion. 11. We can perceive no tangible reason why the evidence mentioned in the thirteenth bill of exceptions was not"admissible.

On the day of the killing, some one of the parties first reaching the place of homicide most sensibly tried to prevent others from obliterating the tracks leading to and from the place of the homicide, by instructing and requesting them to keep away. The witness testified to these efforts and instructions. 12. By the fourteenth bill it is shown that the court refused to permit the witness Wheat to testify to remarks made by one Jim Anderson to him when they heard the guns fire which were supposed to have killed Hill.

These parties were in the woods, mauling rails, some distance away from the scene of the killing, and what they might have said to each other when they heard the firing was res inter alios acta, and inadmissible. The court did not err in excluding it. 13.

The fifteenth bill of exceptions was reserved by defendant to the court’s permitting Jack Williams to testify, over the objection of defendant, to certain statements made to the witness by Iven Thompson (a co-defendant), some days before the killing, relative to the intentions of Thompson and appellant Kennedy to kill Edmond Hill,— appellant Kennedy not being present when Thompson made these statements to the witness. The evidence was admissible.

The witness stated that Thompson said “ that he and Tom Kennedy were going to kill Hill the first chance they got, and that they were going for him any time.” A conspiracy between the parties may not have been conclusively established before this testimony was admitted, but it was established on the trial, and this testimony tended to establish its existence at the time the statements and declarations were made. (See the question elaborately discussed in Cox v. The State, 8 Texas Ct. App., 254.) 14.

The sixteenth bill was to the action of the court in permitting Cauthorn, a justice of the peace, to testify that at and before the time of the killing there were causes pending on his docket between Edmond Hill’s family and Tom Kennedy, defendant’s family. The objection was that the docket was the best evidence. The witness could as a fact testify that such causes were pending, independently of his docket. (See Thompson v. The State, just decided, ante, p. 593.) 15. The seventeenth bill of exceptions appears of record, and the same is not noticed or discussed in the brief of counsel for appellant. 16.

The eighteenth and nineteenth bills of exception were saved to remarks made in argument by the attorneys prosecuting the case.

From the eighteenth it appears that when the district attorney commenced to speak of “ public opinion ” the judge of his own motion stopped him, and told him “to refrain from any reference to public opinion, and nothing further was said by him about it.” The objectionable remark made by the attorney employed to assist in the prosecution was that “from the testimony in the case he honestly believed defendant guilty.” It was entirely proper for the court to interfere and stop the district attorney when he started out of the record to speak of public opinion.

Public opinion has nothing to do with trials in a court of justice. The law is above public opinion,— independent of it,—cares nothing for it, and should always promptly condemn any attempt on its part to dictate or interfere in any manner with matters pending in her courts. The life and liberty of the citizen are not under the control of nor dependent upon public opinion.

The law is the aegis of his protection against the mad demands of public opinion when life and liberty are at stake, and that law which could for a moment be swerved from its high purpose and prerogative by either the cries of popular clamor or popular applause is but a fraud and a delusion, unworthy the name of law. Appreciating this, the learned judge, without suggestion from defendant’s counsel, of his oavu motion promptly stopped the attorney so soon as he attempted to invoke public opinion. This was eminently proper. (Crawford v. The State, 15 Texas Ct. App., 503; Cartwright v. The State, 16 Texas Ct.

App., 489; Sterling v. The State, 15 Texas Ct. App., 249; Hunnicut v. The State, 18 Texas Ct. App., 500.) As to the expression made use of by the attorney aiding the prosecution, to the effect that he honestly believed defendant guilty, it was said by this court in the case of Young v.

The State, at a former day of this term: “ While it is true that authors treating upon this subject say that counsel, either for or against the prisoner, should never express their opinion as to the guilt or innocence of the accused, yet we would hesitate at this day to reverse a judgment because of a violation of this rule.’’ {Ante, p. 536.) And besides, in this as in that case, counsel should have requested the court to instruct the jury that they should not be influenced by the attorney’s individual opinion as to the defendant’s guilt.

No exception was taken to the charge of the court to the jury, and no additional instructions were asked. The charge presents fully the law applicable to the facts proven. As to the evidence, whilst it is circumstantial, it is, in our opinion, amply sufficient to sustain the verdict and judgment. Appellant appears to have had a fair trial, and he has been most ably defended in the lower court, and in this court has had his case thoroughly presented, both in oral argument and by brief of counsel.

A mature consideration of the many intricate and interesting questions raised has led us to the conclusion that none of the errors complained of, if any there are, are of a character requiring that we should reverse the judgment. Appellant is shown by this record to have conspired with others to take the life of deceased, and that they consummated the conspiracy with a most foul assassination. The judgment is affirmed. Affirmed. • [Opinion delivered December 16,1885.]