Will Blackwell v. The State, 29 Tex. Ct. App. 194

WHITE, Presiding Judge. This appeal is from a judgment of conviction for murder of the first degree in which the penalty of death has been assessed. A motion was made by the defendant for a change of venue, based upon both of the statutory grounds mentioned in

article 578 of the Code of Criminal Procedure, supported by the affidavits of two compurgators. It was controverted by the State. Evidence was heard pro and con by the court; the motion was overruled, and defendant reserved his bill of exceptions to the ruling. This bill of exceptions was approved by the trial judge and filed in court within ten days after trial, on the 30th day of July, 1890, the day upon which the term of court finally adjourned. But it does not contain the facts adduced in evidence on the hearing of said, motion. It is provided by

article 584 of the Code of Criminal Procedure, that “the order of the judge granting or refusing a change of venue shall not be revised upon appeal unless the facts upon which the same was based are presented in a bill of exceptions, prepared, signed, approved, and filed at the term of the court at which such order was made.” Under this rule the facts should have been embodied in and brought up by the bill of exceptions. Bowden v. The State, 12 Texas Ct. App., 246.

There is in the record what purports to be a statement of facts containing the evidence adduced on this motion for change of venue, but the date of its approval by the judge is not given, and it was not filed until the 11th day of August, 1890, which was on the twelfth day after the date of the adjournment of the term, viz., after the 30th of July, 1890. Conceding then that the general rule allowing the statement of facts to be made up and filed in vacation at any time not exceeding ten days after the adjournment of the term (Rev. Stats., art. 1379; Willson’s Crim.

Stats., sec. 2564) applicable to evidence heard on change of venue, this statement would be entitled to no consideration, because not filed within the ten days. We are, however, of opinion that the statute allowing the ten days after adjournment to file a statement of facts can have no applicability to the statement of facts on a motion for change of venue. These facts should be embodied in a bill of exceptions, which bill should “be prepared, signed, approved, and filed at the term of the court at which such order was made.” Code Crim. Proc., art. 584, supra.

We have, however, read the statement of facts in connection with said motion, and if we were permitted to consider it we should hold that the court did not err in overruling the motion to change the venue of the case. Code Crim. Proc.) art. 583; Willson’s Crim. Stats., sec. 2210. 2. Uo error is made to appear in the refusal of the court to grant defendant’s application for a continuance.

The explanation of the learned trial judge appended to the bill of exceptions is entirely satisfactory as to the correctness of his ruling. ¡Nor could the proposed absent testimony have had any weight in determining the motion for a new trial, there being no evidence adduced to which it would be applicable, even if admissible. 3. Appellant exhausted a peremptory challenge upon Orchard, one of the veniremen whom he had ineffectually endeavored to challenge for cause.

But the court gave him another peremptory challenge in lieu of the one thus used, and he in fact thus used twenty-one peremptory challenges, or one more than the law allows him. Code Crim. Proc., art. 635. This fully cured the erroneous ruling, if any such there was; and even if that were not so, he had no objectionable juror forced upon him and consequently has no ground for complaint. Willson’s Crim. Stats., sec. 2293; Hudson v. The State, 28 Texas Ct. App., 323. 4.

A bill of exceptions was saved to the admission over defendant’s objection of evidence going to show that the house occupied by the parties to the homicide and other young men had been set fire to and was consumed about the time of the killing. The theory of the State was that defendant had stolen clothing and other articles which were in the house belonging to the young white men, and that to conceal his crime he set fire to the house and was making his escape with the plunder when he was met by deceased, whom he killed in order to escape the consequences of his theft and arson.

The case was one of circumstantial evidence, and the testimony was admissible as res gestee, it tended to throw light upon the transaction, the motive of the slayer, and the reasons which prompted the killing. Willson’s Crim. Stats., secs. 1044, 1046, 2493, 2498.

"When the scienter or quo anima is a constituent, of an offense and necessary to be proved, it is competent to introduce testimony of acts, conduct, or declarations of the accused which tend to establish the knowledge or intent, though they in themselves constitute in law distinct crimes, and are apparently collateral and foreign to the main issue and may have occurred either prior or subsequent to the act for which the accused is being tried.” McKinney v. The State, 8 Texas Ct. App., 626; Leeper and Powell v. The State, ante, p. 63.

Defendant asked special requested instructions relative to the evidence as to the burning of the house and theft of the clothing, which instructions were refused by the court. As far as was necessary the court in the general charge had already limited and restricted the purposes for which this testimony had been permitted to be introduced, and sufficiently and properly guarded its consideration by the jury, and it was not error to refuse the special instructions. 5. Several objections and exceptions were taken to the charge of the court.

One was that the court submitted murder of the first degree, and one that the court erred in not submitting manslaughter. The facts in evidence not only raised but required the charge upon murder of the first degree, and those facts, as they appear in this record, in our opinion, fully warranted the jury in returning a verdict for murder of the first degree. As to manslaughter, there is not a scintilla of evidence going to suggest even "adequate cause,” and without "adequate cause” there could be no manslaughter. Clore v. The State, 26 Texas Ct. App., 624; Willson’s Crim. Stats., sec. 1018. 6.

When the State introduced the witness Duren the defendant objected because "the rule” had been invoked and this witness had not been placed under "the rule.” It was shown that the witness had not been in the court room during the trial, and had heard nothing with regard to the testimony of the other witnesses. The admissibility of witnesses who have violated "the rule,” or who have not been placed under the rule, is within the sound discretion of the court, and such discretion will be presumed to have been correctly exercised until the contrary appears. Sherwood v. The State, 42 Texas, 498; Willson’s Crim.

Stats., sec. 2318. No abuse of discretion is shown in this instance. 7. One of the grounds of defendant’s motion for a new trial was the newly discovered evidence of one Jack Kent. Defendant can not legitimately claim that the evidence of this witness was newly discovered. He proposed to prove by this witness that said witness was at the house on the morning before the killing, and that a fire had been made in the stove in said house before breakfast.

Defendant, if it were a fact, certainly must have known and did know that Kent was there and could testify to this fact, and if he desired his testimony he should have taken the steps necessary to secure his attendance on the trial. Besides this, his own witness Walker testified that there was a fire in the stove that morning, and defendant, testifying in the case, swore to the same fact. Kent’s testimony, therefore, if newly discovered, would be only cumulative of theirs.

But, as before stated, the evidence does not and can not -come within the category of “newly discovered.” Defendant has at all events failed to show that “it was not owing to a want of diligence on his part that it was not discovered sooner,” which is one of the essentials to such' evidence, and in our opinion the evidence if produced on another trial would not “probably produce a different result.” Willson’s Crim. Stats., sec. 2544; Code Crim. Proc., art. 777, subdiv. 6.

In discussing and determining the questions raised in this case we have given the defendant the benefit of a due consideration of the statement of the facts as we have found it incorporated- in the record. This he was not entitled to. Ten days were allowed by order of the court for the making up and filing of the statement after adjournment of court. Court adjourned on the 30th day of July. The statement of facts, though approved and signed by the judge on the 9th day of August, was not filed in court until the 11th, and the want of diligence is not attempted to be explained.

As above stated, however, we have read and considered this statement because approved before the expiration of the ten days, and on account of the gravity of the punishment denounced by the verdict and judgment. There is nothing in the statement of facts which tends in the slightest to mitigate or palliate the crime for which defendant has been indicted, fairly and impartially tried, and justly convicted by the verdict of the jury and the j udgment of the lower court.

It only remains for us to declare that we have found no reversible error in the record of his conviction, and that the judgment is in all things affirmed. Affirmed. Hurt, J., absent.