Britton Turner v. The State, 20 Tex. Ct. App. 56

Hurt, Judge. This is the second appeal taken from convictions of murder of the second degree. There are but two questions presented in the record demanding attention. 1st. The action of the court in refusing a new trial growing out of the matter relating to the witness Buck Shaw. 2d. The sufficiency of the evidence to support a conviction for murder. First. There is no question but that the diligence was sufficient under the circumstances, and that the evidence of the absent witness was of very great importance to defendant and probably true. This being the case, a new trial should have been granted.

It also appears from the record that the witness Buck Shaw had telegraphed to the sheriff that he was on his way to court as a witness for defendant, but this fact was not disclosed either to the court or to defendant or his counsel. This is strange conduct for an officer of the court. If the court had been informed of this fact, a postponement of the case for a few days would have resulted in procuring the evidence of Shaw, and all this matter relating to the continuance been eliminated from the case. What prompted the sheriff to withhold this information, we cannot imagine.

We hope he has not made himself a prosecutor in the case. However this may be, we think a new trial should have been granted in order to procure the testimony of Buck Shaw, it being of vital importance to a fair and impartial trial of the case. [Opinion delivered December 16, 1885.] Second. That Ihe evidence does not warrant a verdict of guilty of murder in either degree.

Appellant was convicted of murder of the second degree on a trial of this case some time in 1884, and appealed to this court in session at Austin, and the judgment was there reversed and the cause remanded because the evidence did not sustain the verdict of the jury. We have again given the statement of facts a most careful investigation, and are' still of the opinion that the evidence wholly fails to support a conviction for murder. The case made upon the last trial is no stronger against defendant than that made on the first.

It stands on very much the same criminative facts as -when first tried, without the evidence of Shaw, which tended to negative a conspiracy on the part of the parties to kill or inflict serious injury upon deceased. The defect in the State’s case is the want of evidence— facts — which reasonably and satisfactorily prove that defendant agreed, consepted to, or was a party in any way, to the killing of deceased.

That they went to deceased’s for the purpose of whipping him, if he should acknowledge' that he had spoken with disrespect of old man Turner, may all be true; but there is no evidence clearly showing that defendant intended anything further. Hence we must hold, as we did upon the first appeal, that this verdict and judgment are without that support in evidence which should be had in cases of conviction for crime. The judgment is reversed and the case remanded. Reversed and remanded.