James Stouard v. The State, 27 Tex. Ct. App. 1

Hurt, Judge. This conviction is for the homicide of W. D. Stouard, the appellant being convicted of murder in the second degree, with punishment fixed at sixty years in the penitentiary. Mrs. Jane Stouard was separately indicted for the same offense, the indictments against each being presented in the district court of Stephens county, at the May term, 1887. When the case was called at the said term, the defendant James Stouard answered ready.

Afterwards, on May 25, 1887, after having exhausted a venire of two hundred men, the district attorney moved for a change of venue to Shackelford county, because of the failure to procure a jury. Thereupon it was agreed by the defendant that the case might be sent to Shackelford county. At the same term the case of The State v. Jane Stouard was continued. How on Hovember 11, 1887, the case being in the district court of Shackelford county, the defendant filed his first application for continuance for certain witnesses, his mother, Jane Stouard, not being one of the number.

The case was continued at the instance of the defendant. This case was called for trial on May 4, 1888, in the district court of Shackelford county, whereupon the defendant presented his second application for continuance for want of the testimony of Mrs. Jane Stouard, and because of the absence of other witnesses. The application was denied and defendant excepted, reserving his bill. Mrs. Stouard’s testimony being material and probably true, did the court err in refusing to continue the case until she could be tried, and, if acquited, be permitted to testify for the defendant?

Whether indicted jointly or separately, if the offense grew out of the same transaction, either defendant, by making proper affidavit, is entitled to have the party for whose evidence said affidavit is made first tried. (Acts of 1887, p. 33.) By this

article it is also provided that the making of such affidavit does not, without other sufficient cause, operate as a continuance to either party. This would seem to settle the controversy as to a continuance for the want of the testimony of Mrs. Jane Stouard. Independent of this provision, appellant is chargeable with the grossest negligence with regard to this matter, and upon this ground the court acted correctly in denying the application.

Appended to the application to continue there is an explanation of the facts and circumstances relating to the other parties named in the application, which completely sustains the court in refusing to continue for the want of their testimony, and hence there was no error in refusing the application. The witness Elbert C. Grow was evidently an accomplice, if not the sole perpetrator of the crime. The law applicable to the testimony of such a witness was correctly given in charge to the jury.

Grow being an accomplice, the counsel for appellant earnestly contends that he is not corroborated in such manner as will justify a conviction. We have examined the statement of facts with great care, and are of the opinion that the evidence does not sufficiently corroborate the testimony of the accomplice witness. ¡Natural affection speaks strongly against such

an act as the one charged—the son slaying his father. There were no former grudges, no antecedent menaces, no bad blood, no motive for the crime shown. The deceased’s family consisted of his wife, James the accused, William, three daughters and two small children. William was at Albany when the killing occurred. The sisters were not at home, but were a mile away, ■ washing. Crow states that at dinner there were at the house the deceased, his wife, defendant and two small children. One of the girls who was washing states that her mother came to the wash place with the two children about eleven o’clock.

If this is true, the homicide may have occurred after the wife and two children had left the house for the washing place. Here we have a conflict between a daughter of the deceased and an avowed accomplice. Opinion delivered November 21, 1888. Motion for rehearing overruled without written opinion, January 24, 1889. But again, Crow was also a member of the family. He had been living with the deceased about three months, and had access to the gun as well as did James Stouard—the gun was the property of the deceased. Crow and defendant lived with deceased. Now let us concede that deceased was shot with his own gun.

Why not infer that Crow shot him? Let it be conceded that there was no motive inducing Crow to commit the deed, neither is there any shown prompting the son or wife. Their opportunity was the same, the gun being as convenient to the one as to the other. Then why infer the son’s guilt and not Crow’s? Nature revolts against the crime if committed by Crow, but tenfold stronger if committed by the son. Then why infer the unnatural act from facts tending equally to prove the guilt of another? The accomplice Crow repeatedly denied all knowledge of the crime. The record shows that he lied most infamously.

Nor did he charge the appellant with this most unnatural deed until he was induced to believe that he would be himself accused by the appellant or his mother. In view of these facts, and in view of the fact that the accused was the son of the deceased, we again urge the question, why infer appellant’s guilt and not Crow’s? Where the physical facts attending the homicide show that but one party did the killing, evidence which tends with equal force to criminate several, without pointing out which, has but little force.

Hence, if Crow is corroborated at all, it is so slight as to render it dangerous to sustain the" conviction. Because the testimony of the accomplice is not sufficiently corroborated, the judgment is reversed and the cause remanded. Reversed and remanded.